A punishment is simply afflictive when the object aimed at is to produce immediate temporary suffering, and is so called to distinguish it from other classes of corporeal punishments, in which the suffering produced is designed to be more permanent Simple afflictive punishments are distinguished from one another by three principal circumstances: the part affected, the nature of the instrument, and the manner of its application.
To enumerate all the varieties of punishment which might be produced by the combination of these different circumstances, would be an useless, as well as an endless task. To enumerate the several parts of a man’s body in which he is liable to be made to suffer, would be to give a complete body of anatomy. To enumerate the several instruments by the application of which he might be made to suffer, would be to give a complete body of natural history. To attempt to enumerate the different manners in which those instruments may be applied to such a purpose, would be to attempt to exhaust the inexhaustible variety of motions and situations.
Among the indefinite multitude of punishments of this kind that might be imagined and described, it will answer every purpose if we mention some of those which have been in use in this and other countries.
The most obvious method of inflicting this species of punishment, and which has been most commonly used, consists in exposing the body to blows or stripes. When these are inflicted with a flexible instrument, the operation is called whipping: when a less flexible instrument is employed, the effects are different; but the operation is seldom distinguished by another name.
In Italy, and particularly in Naples, there is a method, not uncommon, of punishing pickpockets, called the Strappado. It consists in raising the offender by his arms, by means of an engine like a crane, to a certain height, and then letting him fall, but suddenly stopping his descent before he reaches the ground. The momentum which his body has acquired in the descent is thus made to bear upon his arms, and the consequence generally is, that they are dislocated at the shoulder: to prevent the permanent evil consequences, a surgeon is then employed to reset them.
There were formerly in England two kinds of punishment of this class, discarded now even from the military code, in which they were longest retained: the one called Picketing, which consisted in suspending the offender in such manner that the weight of his body was supported principally by a spike, on which he was made to stand with one foot: the other, the Wooden Horse, as it was called, was a narrow ledge or board, on which the individual was made to sit astride; and the inconvenience of which was increased by suspending weights to his legs.
Another species of punishment formerly practised in this country, but now rarely used, consisted in subjecting the patient to frequent immersions in water, called ducking. The individual was fastened to a chair or stool, called the ducking-stool, and plunged repeatedly. In this case, the punishment was not of the acute, but of the uneasy kind. The physical uneasiness arises partly from the cold, partly from the temporary stoppage of respiration. It has something of the ridiculous mixed with it, and was most generally applied to scolding women, whose tongues disturbed their neighbours. It is a relic of the simplicity of the olden time. It is still occasionally resorted to, when the people take the administration of the laws into their own hands; and is not uncommonly the fate of the pickpocket who is detected at a fair or other place of promiscuous resort.
The powers of invention have been principally employed in devising instruments for the production of pain, by those tribunals which have sought to extort proofs of his criminality from the individual suspected. They have been prepared for all parts of the body, according as they have wished to stretch, to distort, or to dislocate them. Screws for compressing the thumbs; straight boots for compressing the shins, with wedges driven in by a mallet; the rack for either compressing or extending the limbs; all of which might be regulated so as to produce every possible degree of pain.
Suffocation was produced by drenching, and was practised by tying a wet linen cloth over the mouth and nostrils of the individual, and continually supplying it with water, in such manner, that every time the individual breathed, he was obliged to swallow a portion of water, till his stomach became visibly distended. In the infamous transactions of the Dutch at Amboyna, this species of torture was practised upon the English who fell into their power.
It would be useless to pursue this afflicting detail any further. How variously soever the causes may be diversified, the effect is still one and the same, viz. organical pain, whether of the acute or uneasy kind. This effect is common to all these modes of punishment. There are other points in which they may differ:— 1. One of them may carry the intensity of the pain to a higher or lower pitch than it could be carried by another. 2. One may be purer from consequences which, for the purpose in question, it may or may not be intended to produce.
These consequences may be — 1. The continuance of the organical pain itself beyond the time of applying the instrument; 2. The production of any of those other ill consequences which constitute the other kinds of corporeal punishment; 3. The subjecting the party to ignominy.
In the choice of punishment, these circumstances, how little soever they are attended to in practice, are of the highest importance.
It would be altogether useless, not to say mischievous, to introduce into the penal code a great variety of modes of inflicting this species of punishment. Whipping — the mode which has been most commonly in use — would, if proper care were taken to give to it every degree of intensity, be sufficient if it were the only one. Analogy, however, in certain cases, recommends the employment of other modes. The multiplication of the instruments of punishment, when not thus justified, tends only to render the laws odious.
Among other works undertaken by order of the Empress Maria Theresa for the amelioration of the laws, a description was compiled of the various methods of inflicting torture and punishment in the Austrian dominions. It formed a large folio volume, in which not only all the instruments were described, and represented by engravings, but a detailed account was given of the manipulations of the executioners. This book was only exposed for sale for a few days, Prince Kaunitz, the prime minister, having caused it to be suppressed. He was apprehensive, and certainly not without reason, that the sight of such a work would only inspire a horror of the laws. This objection fell with its whole force upon the instruments for the infliction of torture, which has since been abolished in all the Austrian dominions. It is highly probable that the publication of this work contributed to produce this happy event. If so, few books have done more good to the world, if compared with the time they continued in it.
A valuable service would be rendered to society by the individual who, being properly qualified for the task, should examine the effects produced by these different modes of punishment, and should point out the greater or smaller evil consequences resulting from contusions produced by blows with a rope, or lacerations by whips, &c. In Turkey, punishment is inflicted by beating the soles of the feet: whether the consequences are more or less severe, I know not. It is perhaps from some notion of modesty that the Turks have confined the application of punishment to this part of the human body.
If the suffering produced by a punishment of this class is rendered but little more than momentary, it will neither be sufficiently exemplary to affect the spectators, nor sufficiently efficacious to intimidate the offenders. There will be little in the chastisement but the ignominy attached to it; and this would have but little effect upon that class of delinquents upon whom such punishments are generally inflicted; the quantity of suffering ought, therefore, if possible, to be regulated by the laws.
Of all these different modes of punishment, whipping is the most frequently in use; but in whipping, not even the qualities of the instrument* are ascertained by written law: while the quantity of force to be employed in its application is altogether entrusted to the caprice of the executioner. He may make the punishment as trifling or as severe as he pleases. He may derive from this power a source of revenue, so that the offender will be punished, not in proportion to his offence, but to his poverty. If he has been unfortunate, and not able to secure his plunder, or honest, and has voluntarily given it up, and thus has nothing left to make a sop for Cerberus, he suffers the rigour — perhaps more than the rigour — of the law. Good fortune, and perseverance in dishonesty, would have enabled him to buy indulgence.
The following contrivance would, in a measure, obviate this inconvenience:— A machine might be made, which should put in motion certain elastic rods of cane or whalebone, the number and size of which might be determined by the law: the body of the delinquent might be subjected to the strokes of these rods, and the force and rapidity with which they should be applied, might be prescribed by the judge: thus everything which is arbitrary might be removed. A public officer, of more responsible character than the common executioner, might preside over the infliction of the punishment; and when there were many delinquents to be punished, his time might be saved, and the terror of the scene heightened, without increasing the actual suffering, by increasing the number of the machines, and subjecting all the offenders to punishment at the same time.
The examination of a punishment consists in comparing it successively with each of the qualities which have been pointed out as desirable in a lot of punishment, that it may be observed in what degree some are possessed and the others wanted; and whether those which it possesses are more important than those which it wants; that is to say, whether it is well adapted for the attainment of the desired end.
It will be remembered, that the several qualities desirable in a lot of punishment are — variability, equability, commensurability, characteristicalness, exemplarity, frugality, subserviency to reformation, efficiency with respect to disablement, subserviency to compensation, popularity, and remissibility.
That any species of punishment does not possess the whole of these qualities, is not a sufficient reason for its rejection: they are not all of equal importance, and indeed no one species of punishment will perhaps ever be found in which they are all united.
Simple afflictive punishments are capable of great variability: they may be moderated or increased at will. Their effects, however, are far from equable: the same punishment will not produce the same effects when applied to both sexes — when applied to a stout young man, and an infirm old man. These punishments are almost always attended with a portion of ignominy, and this does not always increase with the organic pain, but principally depends upon the condition of the offender. For this reason, there is scarcely a punishment of this description which would be esteemed slight, if inflicted upon a gentleman.
It was inattention to this circumstance that was one cause of the dissatisfaction occasioned by the Stat. 10 Geo. III., called the Dog Act, passed to restrain the stealing of dogs: among the punishments appointed was that of whipping. There is one thing in the nature of this species of property which renders the stealing of it less incompatible with the character of a gentleman than any other kind of theft. It is apt, therefore, to meet with indulgence from the moral sanction, for the same reason that enticing away a servant is not considered as a crime, on account of the rational qualities of the subject of property in these cases. An individual also may be innocent, notwithstanding appearances are against him. A dog is susceptible of volition, and even of strong social affections, and may have followed a new master without having been enticed.
The same inattention has been observed to be remarkably prevalent throughout the whole system of penal jurisprudence in Russia. In the reign which preceded that of the mild and intelligent Catherine II. neither rank nor sex bestowed an exemption from the punishment of whipping. The institutions of Poland were also chargeable with the same roughness; and it was no uncommon thing for the maid of honour of a Polish princess to be disciplined in public by the Maître d’ Hôtel.
Nothing more completely proves the degradation of the Chinese than the whips which are constantly used by the police. The mandarins of the first class, the princes of the blood, are subjected to the bamboo, as well as the peasant.
The principal merit of simple afflictive punishments, is their exemplarity. All that is suffered by the delinquent during their infliction may be exhibited to the public, and the class of spectators which would be attracted by such exhibitions, consists, for the most part, of those upon whom the impression they are calculated to produce would be most salutary.
Such are the most striking points to be observed with respect to these punishments. There is little particular to be remarked under the other heads. They are of little efficiency as to intimidation or reformation, with the exception of one particular species —penitential diet; which, well managed, may possess great moral efficacy. But as this is naturally connected with the subject of imprisonment, the consideration of it is deferred for the present.
Under the name of complex afflictive punishments, may be included those corporeal punishments, of which the principal effect consists in the distant and durable consequences of the act of punishment. They cannot be included under one title. They include three species, very different the one from the other in their nature and their importance.
The permanent consequences of an afflictive punishment may consist in the alteration, the destruction, or suspension of the properties of a part of the body.
The properties of a part of the body consist of its visible qualities, as of colour and figure, and its uses.
Of these three distinct kinds of punishments, the first affects the exterior of the person, its visible qualities: the second affects the use of the organic faculties, without destroying the organ itself; the third destroys the organ itself.*
It was an ingenious idea in the first legislator who invented these external and permanently visible punishments — punishments which are inflicted without destroying any organ — without mutilation — often without physical pain; in all cases, without any other pain than what is absolutely necessary — which affect only the appearance of the criminal, and render that appearance less agreeable — which would not be punishments if they were not indications of his crimes.
The visible qualities of an object are its colour and figure; there are therefore two methods of altering them: 1. Discolouration; 2. Disfiguration.
1. Discolouration may be temporary or permanent. When temporary, it may be produced by vegetable or mineral dyes. I am not acquainted with an instance of its use as a punishment. It has always appeared to me, that it might be very usefully employed as a precaution to hinder the escape of certain offenders, whilst they are undergoing other punishments.
Permanent discolouration might be produced by tatooing; the only method at present in use is branding.†
Tatooing is performed by perforating the skin with a bundle of sharp-pointed instruments, and subsequently filling the punctures with coloured powder. Of all methods of discolouration, this is the most striking and the least painful. It was practised by the ancient Picts, and other savage nations, for the purpose of ornament.
Judicial branding is effected by the application of a hot iron, the end of which has the form which it is desired should be left imprinted on the skin. This punishment is appointed for many offences in England, and among other European nations. How far this mark is permanent and distinct, I know not; but every one must have observed that accidental burnings often leave only a slight cicatrix — a scarcely sensible alteration in the colour and texture of the skin.
If it is desired to produce deformity, a part of the body should be chosen which is exposed to view, as the hand or the face; but if the object of the punishment is only to mark a conviction of a first offence, and to render the individual recognisable in case of a relapse, it will be better that the mark should be impressed upon some part of the body less ordinarily in view, whereby he will be spared the torment of its infamy, without taking away his desire to avoid falling again into the hands of justice.
2. Disfigurement may in the same manner be either permanent or transient. It may be performed either on the person, or only on its dress.
When confined to the dress, it is not properly called disfigurement; but, by a natural association of ideas, it has the same effect. To this head may be referred the melancholy robes and frightful dresses made use of by the Inquisition, to give to those who suffer in public a hideous or terrible appearance. Some were clothed in cloaks painted to represent flames; others were covered with figures of demons, and different emblems of future torments.
Shaving the head has been a punishment formerly used. It was part of the penance imposed upon adulterous women by the ancient French laws.
The Chinese attach great importance to the length of their nails; cutting them might therefore be used as a penal disfigurement. Shaving the beard might be thus employed among the Russian peasants, or a part of the Jews.
The permanent means of disfigurement are more limited. The only ones which have been in use, and which may yet be employed in certain countries, were applied to certain parts of the head, which may be altered without destroying the functions which depend on those parts. The common law of England directs the nostrils to be slit, or the ears cut off, as the punishment for certain offences. The first of these punishments has fallen into disuse; the second has been rarely employed in the last century. In the works of Pope, and his contemporary writers, may be seen how far their malignity was pleased by allusions to this species of punishment, which had been applied to the author of a libel in their times.
The cutting off and slitting of the nose, the eyelids, and the ears, were once in common use in Russia, without distinction of sex or rank. They were the common accompaniments of the knout and exile: but it ought to be observed that the punishment of death was very rare.
To disable an organ is either to suspend or destroy its use, without destroying the organ itself.
It is not necessary here to enumerate all the organs, nor all the methods by which they may be rendered useless. We have already seen, that it would not be useful to have recourse to a great variety of afflictive punishments, and that there would be many inconveniences in so doing. If we were to follow the law of retaliation, the catalogue of possible punishments would be the same as that of the possible offences of this kind.
1. The Visual Organ,— the use of which may be suspended by chemical applications, or by mechanical means, as with a mask or bandage. The visual faculty may also be destroyed by chemical or mechanical means.
No jurisprudence in Europe has made use of this punishment. It has heretofore been employed at Constantinople, under the Greek emperors, less as a punishment, it is true, than as a politic method of rendering a prince incapable of reigning. The operation consisted in passing a red hot plate of metal before the eyes.
2. The Organ of Hearing.— This faculty may be destroyed by destroying the tympanum. A temporary deafness may be produced by filling the passage of the ears with wax. As a legal punishment, I know of no instance of its use.
3. The Organ of Speech.— Gagging has more often been employed as a means of precaution against certain delinquents, rather than as a method of punishment. General Lally was sent to his punishment with a gag in his mouth; and this odious precaution perhaps only served to turn public opinion against his judges, when his character was re-established. It has sometimes been employed in military prisons. It has the merit of analogy, when the offence consists in the abuse of the faculty of speech.
Gagging is sometimes performed by fixing a wedge between the jaws, which are rendered immoveable; sometimes by forcing a ball into the mouth, &c.
4. The Hands and Feet.— I shall not speak of the various methods by which these members may be rendered for ever useless. If it were necessary to be done, it would not be difficult to accomplish.
Handcuffs are rings of metal, into which the wrists are thrust, and which are connected together with a bar or chain. This apparatus completely hinders a certain number of movements, and might be employed so as to prevent them all.
Fetters are rings of metal, into which the legs are fixed, united in the same manner by a chain or bar, according to the species of restraint which it is desired to produce. Handcuffs and fetters are often employed conjointly. Universal use is made of these two methods, sometimes as a punishment, properly so called, but more frequently to prevent the escape of a prisoner.
The pillory is a plank fixed horizontally upon a pivot, on which it turns, and in which plank there are openings, into which the head and the hands of the individual are put, that he may be exposed to the multitude. I say to the gaze of the multitude — such is the intention of the law; but it not unfrequently happens, that persons so exposed are exposed to the outrages of the populace, to which they are thus delivered up without defence, and then the punishment changes its nature:— its severity depends upon the caprice of a crowd of butchers. The victim — for such he then becomes — covered with filth, his countenance bruised and bloody, his teeth broken, his eyes puffed up and closed, no longer can be recognised. The police, at least in England, used to see this disorder, nor seek to restrain it, and perhaps would have been unable to restrain it. A simple iron trellis, in the form of a cage, placed around the pillory would, however, suffice for stopping at least all those missiles which might inflict any dangerous blows upon the body.
The carcan, a kind of portable pillory, is a species of punishment which has been used in many countries, and very frequently in China. It consists of a wooden collar, placed horizontally on the shoulders, which the delinquent is obliged to carry without relaxation for a longer or shorter time.
I understand by mutilation, the extirpation of an external part of the human body, endowed with a distinct power of movement, or a specific function, of which the loss is not necessarily followed by the loss of life, as the eyes, the tongue, the hands, &c.
The extirpation of the nose and of the ears is not properly called mutilation, because it is not upon the external part of these organs that the exercise of their functions depends; they protect and assist that exercise, but they do not exercise these functions. There is, therefore, a difference between that mutilation which causes a total loss of the organ, and that which only destroys its envelope. The latter is only a disfigurement, which may be partly repaired by art.
Every body knows how frequently mutilations were formerly employed in the greater number of penal systems. There is no species of them which has not been practised in England, even in times sufficiently modern. The punishment of death might be commuted for that of mutilation under the common law. By a statute passed under Henry VIII. the offence of maliciously drawing blood in the palace, where the king resided, was punished by the loss of the right hand. By a statute of Elizabeth, the exportation of sheep was punished by the amputation of the left hand. Since that time, however, all these punishments have fallen into disuse, and mutilations may now be considered as banished from the penal code of Great Britain.
The effects of simple afflictive punishments are easily estimated, because their consequences are all similar in quality, and immediately produced. The effects of all other punishments are not ascertained without great difficulties, because their consequences are greatly diversified, are liable to great uncertainty, and are often remote. Simple afflictive punishments must always be borne by the parties on whom they are inflicted: all other punishments are deficient in point of certainty: the more remote their consequences, the more these consequences escape the notice of those who are deficient in foresight and reflection.
Around a simple afflictive punishment a circle may be drawn, which shall inclose the whole mischief of the punishment: around all other punishments the mischief extends in circles, the extent of which is not, and cannot be marked out. It is mischief in the abstract, mischief uncertain and universal, which cannot be pointed out with precision. When the effects of punishments are thus uncertain, there is much less ground for choice; for the effects of one punishment may be the same with those of another, the same consequences often resulting from very different punishments. The choice must therefore be directed by probability, and be governed by the presumption that certain punishments will more probably produce certain penal consequences than any other.
Independently of the bodily sufferings resulting from them, punishments which affect the exterior of the person often produce two disadvantageous effects: the one physical — the individual may become an object of disgust; the other moral — he may become an object of contempt: they may produce a loss of beauty or a loss of reputation.
One of these punishments, which has a greater moral than physical effect, is a mark producing only a change of colour, and the impression of a character upon the skin; but this mark is an attestation that the individual has been guilty of some act to which contempt is attached, and the effect of contempt is to diminish good-will, the principle that produces all the free and gratuitous services that men render to one another: but in our present state of continual dependence upon each other, that which diminishes the good-will of others towards us, includes within itself an indefinite multitude of privations.*
When such a mark is inflicted on account of a crime, it is essential that a character should be given to it, which shall clearly announce the intention with which it was imposed, and which cannot be confounded with cicatrices of wounds or accidental marks. A penal mark ought to have a determinate figure; and the most suitable, as well as the most common, is the initial letter of the name of the crime. Among the Romans, slanderers were marked on the forehead with the letter K. In England, for homicide, committed after provocation, offenders were marked in the hand with the letter M (for manslaughter), and thieves with the letter T. In France, the mark for galley-slaves was composed of the three letters GAL.
In Poland, it was the custom to add a symbolical expression: the initial letter of the crime was inclosed in the figure of a gallows. In India, among the Gentoos, a great number of burlesque symbolical figures are employed.
A more lenient method, which may be referred to the same head, is a practice too little used, of giving to offenders a particular dress, which serves as a livery of crime. At Hanau, in Germany, persons condemned to labour on the public works were distinguished by a black sleeve in a white coat. It is an expedient which has for its object the prevention of their escape; as a mark of infamy, it is an addition to the punishment.
On the score of frugality, deforming punishments are not liable to any objection; disablement and mutilation are. If the effect of either is to prevent a man getting his livelihood by his own labour, and he has no sufficient income of his own, he must either be left to perish, or be supplied with the means of subsistence: If he were left to perish, the punishment would not be mere disablement or mutilation, but death: if he be supported by the labour of others, that labour must either be bestowed gratis, as would be the case if he were supported on the charity of relations and friends; or paid for, at public cost: in either case, it is a charge upon the public. This consideration might of itself be considered a conclusive objection against the application of these modes of punishment for offences that are apt to be frequently committed, such as theft or smuggling; the objection applies, however, in its full force, to such of these modes of punishment only as have the effect of depriving the particular individual in question of the means of gaining his livelihood.
In respect of remissibility, they are also eminently defective — a consideration which affords an additional reason for making a very sparing use of them.
In respect also of variability, these punishments are scarcely in a less degree defective. The loss of the eyes, or of the hand, is not, to a man who can neither read or write, the same degree of punishment as it would be to a painter, or an author. Yet, however different in each instance may be the degree of suffering produced by the mass of evil to which the infliction of the punishment in question gives birth, all who are subject to it will find themselves more or less affected: of these inequalities, and therefore of the aggregate amount of the punishment in each particular instance, it is impossible to form any estimate; it depends on the sensibility of the delinquent, and other circumstances, which cannot be foreseen. By a slothful man, the loss of a hand might not be regarded as a very severe punishment: it has not been uncommon for men to mutilate or disable themselves to avoid serving in the army.
In point of variability, the several classes of punishment now before us, when considered all together, are not liable to much objection; there is a gradation from less to more, which runs through the whole of them. The loss of one finger is less painful than the loss of two, or of the whole hand; the loss of the hand is less than the loss of an arm. But when these punishments are considered singly, the gradation disappears. The particular mutilation directed by the law, can neither be increased or diminished, that it may be accommodated to the different circumstances of the crime or of the delinquent. This objection recurs again under the head of Equability. The same nominal punishment will not always be the same real punishment.
In respect of exemplarity, the punishments in question possess this property in a higher degree than simple afflictive punishments. This latter species of punishment not being naturally attended with any distant consequences (their infamy excepted), the whole quantity of pain it is calculated to produce is collected, as it were, into a point, and exposed at once to the eyes of the spectator; while of the other, on the contrary, the consequences are lasting, and are calculated perpetually to awaken in the minds of all, to whose eyes any person that has suffered this species of punishment may happen to present himself, the idea of the law itself, and of the sanction by which its observance is enforced. For this purpose it is necessary, however, as has been already observed, that the penal mark should be such as at first glance to be distinguished from any mark that may have been the result of accident — that misfortune may be protected from the imputation of guilt.
The next property to be desired in a mode of punishment, is subserviency to reformation. In this respect, the punishments under consideration, when temporary, have nothing in themselves that distinguishes them from any other mode of punishment: their subserviency to reformation is as their experienced magnitude. It is the infamy attendant on them that gives them those effects which are apt in this respect to distinguish them to their disadvantage.
Infamy, when at an intense pitch, is apt to have this particular bad effect: it tends pretty strongly to force a man to persist in that depraved course of life by which the infamy was produced. When a man falls into any of those offences that the moral sanction is known to treat with extreme rigour, men are apt to suppose that the moral sanction has no hold upon him. His character, they say, is gone. They withdraw from him their confidence and good-will. He finds himself in a situation in which he has nothing to hope for from men, and for the same reason nothing to fear: he experiences the worst already. If, then, he depend upon his labour for subsistence, and his business is of such sort as requires confidence to be reposed in him, by losing that necessary portion of confidence he loses the means of providing himself with subsistence; his only remaining resources are then mendicity or depredation.
From these observations it follows, that mutilations ought to be reserved as punishments for the most mischievous offences, and as an accompaniment of perpetual imprisonment. An exception to this rule may perhaps be found in the case of rape, for which analogy most strongly recommends a punishment of this kind.
Restrictive punishments are those which restrain the faculties of the individual, by hindering him from receiving agreeable impressions, or from doing what he desires: they take from him his liberty with respect to certain enjoyments and certain acts.
Restrictive punishments are of two sorts, according to the method used in inflicting them. Some operate by moral restraint, others by physical restraint. Moral restraint takes place when the motive presented to the individual, to hinder him from doing the act which he wishes to perform, is only the fear of a superior punishment; for, in order to be efficacious, it is necessary that the punishment with which he is threatened must be greater than the simple pain of submitting to the restraint imposed upon him.
The punishment of restraint is applicable to all sorts of actions in general, but particularly to the faculty of locomotion. Everything which restrains the locomotive faculty, confines the individual; that is to say, shuts him up within certain limits, and may be called territorial confinement.
In this kind of punishment, the whole earth, in relation to the delinquent, is divided into two very unequal districts; the one of which is open to him, and the other interdicted.
If the place in which he is confined be a narrow space, surrounded with walls, and the doors of which are locked, it is imprisonment: if the district in which he be directed to remain is within the dominions of the state, the punishment may be called relegation: if it be without the dominions of the state, the punishment is called banishment.
The term relegation seems to imply, that the delinquent is sent out of the district in which he ordinarily resides. This punishment may consist in his confinement in that district where he ordinarily resides, and even in his own house. It may then be called quasi imprisonment.
If it refers to a particular district, which he is prohibited from entering, it is a sort of exclusion, which has not yet a proper name, but which may be called local interdiction.
Territorial confinement is the genus which includes five species:— imprisonment, quasi imprisonment, relegation, local interdiction, and banishment.
Imprisonment makes a much more extensive figure than any other kind of hardship that can be inflicted in the way of punishment. Every other kind of hardship (death alone excepted) may be inflicted for two purposes —punishment and compulsion. Imprisonment, besides these two purposes, may be employed for another — safe custody. When thus employed, it is not a punishment, properly so called; it is intended only to insure the forthcomingness of an individual suspected of having committed an offence, that he may be present to undergo the punishment appointed for that offence, if he be found guilty. When thus employed, it ought not to be more severe than is necessary to insure forthcomingness. Whatever exceeds this, is so much misery in waste.
When imprisonment is intended to operate as a punishment, it may be rendered more or less severe, according to the nature of the offence and the condition of the offender. It may be accompanied by forced labour, which may be imposed upon all; but it ought not to be so imposed without reference to the age, the rank, the sex, and the physical powers of the individuals. Other punishments, which may be employed in addition to hard labour, and of which we shall have occasion to speak in a future chapter, are — diet, solitude, and darkness.
When imprisonment is inflicted for the purpose of compulsion, the severer it is the better, and that for various reasons.
When it is protracted, but slight, the danger is, that the prisoner may come by degrees to accommodate himself to it, till at last it ceases, in a manner, to operate upon him. This is found not uncommonly to be the case with insolvent debtors. In many of our gaols there are so many comforts to be had by those who have money to purchase them, that many a prisoner becomes in time tolerably well reconciled to his situation. When this is the case, the imprisonment can no longer be of use in any view.
The severer it is — I mean all along in point of intensity — the less of it, in point of magnitude, will be consumed upon the whole; that is, in point of intensity and duration taken together; the more favourable, in short, will it be to the sufferer: it will produce its effects at a cheaper rate. The same quantity of painful sensations, which, under the milder imprisonment, are diffused through a large mass of sensations, indifferent or pleasurable, being, in the severer imprisonment, brought together, will act with collected force, and produce a stronger impression: the same quantity of pain will therefore go farther this way than in any other. Add to this, that in this way the same quantity of suffering will not have so pernicious an influence on his future life. In the course of a tedious confinement, his mental faculties are debilitated, his habits of industry are weakened, his business runs into other channels, and many of those casual opportunities which might have afforded the means of improving his fortune, had he been at liberty to embrace them, are irrecoverably gone. These evils, which, though they may come eventually to be felt, are too distant and contingent to contribute anything beforehand to the impression it is intended to produce, are saved by placing the magnitude of the punishment in intensity rather than in duration.
By the fundamental constitution of man’s nature, without anything being done by any one to produce a change in his situation, if left to himself, in a situation in which he is debarred from exercising the faculty of locomotion, he will in a short time become a prey to various evils, to the action of various causes producing various organical pains, which, sooner or later, are sure to end ultimately in death. If duration and neglect be added to imprisonment, it necessarily becomes a capital punishment. Since, therefore, it is followed by an infinite variety of evils which the individual is unable himself to guard against, and against which precautions must be taken by others to preserve him, it follows, that to form a just notion of imprisonment, it must be considered, not simply by itself, but in connexion with its different modes and consequences. We shall then see that, under the same name, very different punishments may be inflicted. Under a name which presents to the mind only the single circumstance of confinement in a particular place, imprisonment may include every possible evil; from those which necessarily follow in its train, rising from one degree of rigour to another, from one degree of atrocity to another, till it terminates in a most cruel death; and this without being intended by the legislator, but altogether arising from absolute negligence — negligence as easy to be explained, as it is difficult to be palliated.
We shall class under three heads the penal circumstances which result from this condition:— 1. Necessary inconveniences, which arise from the condition of a prisoner, and which form the essence of imprisonment: 2. Accessory inconveniences, which do not necessarily, but which very frequently follow in its train: 3. Inconveniences arising from abuses.
1. Privation of the pleasures which belong to the sight, arising from the diversity of objects in town and country.
2. Privation of the liberty of taking pleasurable exercises that require a large space, such as riding on horseback or in a carriage, hunting, shooting, &c.
3. Privation of those excursions which may be necessary even for health.
4. Privation of the liberty of partaking of public diversions.
5. Abridgment of the liberty of going out to enjoy agreeable society, as of relations, friends, or acquaintance, although they should be permitted to come to him.
6. Privation of the liberty, in some cases, of carrying on business for a livelihood, and abridgment of such liberty in all cases.
7. Privation of the liberty of exercising public offices of honour or trust.
8. Privation of accidental opportunities of advancing his fortune, obtaining patrons, forming friendships, obtaining a situation, or forming matrimonial alliances for himself or children.
Although these evils may in the first instance be purely negative, that is to say, privation of pleasures, it is evident that they bring in their train of consequences positive evils, such as the impairing of the health, and the impoverishment of the circumstances.
1. Confinement to disagreeable diet. The want of sufficient food for the purpose of nourishment, is a distinct mischief, which will come under another head.
2. Want of comfortable accommodations for repose — hard bedding, or straw, or nothing but the bare ground. This hardship alone has been thought to have been productive, in some instances, of disease, and even death.
3. Want of light — by the exclusion of the natural light of the sun by day, and the not furnishing or not permitting the introduction of any artificial means of producing light by night.
4. Total exclusion from society. This evil is carried to its height when a prisoner is not permitted to see his friends, his parents, his wife, or his children.
5. Forced obligation of mixing with a promiscuous assemblage of his fellow-prisoners.*
6. Privation of the implements of writing, for the purposes of correspondence: a useless severity, since everything which is written by a prisoner may be properly submitted to inspection. If ever this privation be justifiable, it is in cases of treason and other party crimes.
7. Forced idleness, by the refusal of all means of necessary occupation: as of the brushes of a painter, the tools of a watchmaker, or of books, &c. This has sometimes been carried to such a degree of rigour as to deprive prisoners of all amusement.
These different evils, which are so many positive evils in addition to the necessary evils of simple imprisonment, may be useful in penal and penitential imprisonment. We shall hereafter show in what manner they ought to be used. But with respect to the fifth evil, the forced obligation of mixing with a promiscuous assemblage of prisoners, it is always an evil, and an evil which cannot be obviated without a change in the system and construction of prisons.
We proceed to the consideration of evils purely abusive: of those which exist only by the negligence of the magistrates, but which necessarily exist, where precautions have not been taken to prevent their existence. We shall present two catalogues: one, of the evils, the other, of their remedies:—
Pains of hunger and thirst: general debility — death.
Sensation of cold in various degrees of intensity: stoppage of the circulation — mortification of the extremities† —death.
Sensation of heat: habitual debility — death.
Sensation of damp and wetness: fevers and other disorders — death.
Noisome smells, collections of putrifiable matter: habitual debility — falling off of the members by gangrene — gaol-fever — contagious diseases — death.
Pain or uneasiness resulting from the bites of vermin: cutaneous diseases — want of sleep — debility — inflammation — fever — death.
Painful sensations arising from indelicate practices.
Tumultuous noises — indecent practices — indelicate conversations.
Evils resulting from the religious sanction — from the non-exercise of the ceremonies prescribed by it.
Sufficient clothing, adapted to the climate and the season — fire.
Shelter from the sun in hot weather — fresh air.
The ground everywhere covered with boards, or bricks, or stone — fresh air — tubes for conveying heated air.
Fresh air — change of clothes — water and other implements of washing — fumigations — whitewashing the walls — medicines and medical assistance.
Chemical applications to destroy them — cleanliness — a person with proper implements for their destruction and removal.
Medicines and medical advice.
Partitions to keep the prisoners separate during the hour of rest, at least those of the one sex from those of the other.
Keepers to be directed to punish those guilty of such practices. The punishment to be made known to the prisoners by being fixed up in the prison.
In Protestant countries, a chaplain to perform divine service. In Roman Catholic countries, a priest to perform mass, and to confess the prisoners, &c.*
Another way in which a man is often made to suffer on the occasion of imprisonment, is the being made to pay money under the name of fees. This hardship, on the very first inspection, when deduced as a consequence from a sentence or warrant of imprisonment, can be classed under no other title than that of an abuse; for naturally it has just as much to do with imprisonment as hanging has.
This abuse is coeval with the first barbarous rudiments of our ancient jurisprudence; when the magistrate had little more idea of the ends of justice than the freebooter; and the evils he inflicted were little more than a compensation for the evils he repressed. In those times of universal depravity, when the magistrate reaped almost as much profit from the plunder of those who were, or were pretended to be, guilty, as from the contributions of those who were acknowledged innocent, no pretext was too shallow to cover the enterprises of rapacity under the mask of justice.
All the colour which this abuse is capable of receiving, seems to have been taken from a quibbling and inhuman sarcasm: “Since you have lodging found you,” says the gaoler to the prisoner, “it is fit, like other lodgers, you should pay for it.” Fit it certainly would be, if the lodger came there voluntarily — the only circumstance in the case which is wanting to make it a just demand, instead of a cruel insult.
But the gaoler, like every other servant of the state, it will be said, and with perfect truth, must be satisfied for his trouble; and who more fit than the person who occasions it? I answer, any person whatever — if, contrary to the most obvious principles of justice, some one person must bear the whole charge of an institution, which if beneficial to any, is beneficial to all. I say anybody; because there is no person whose clear benefit from the punishment of the criminal (I am speaking here of the judicial, appointed punishment, the imprisonment; and I mean clear benefit after inconvenience has been deducted) is not greater than the criminal’s. This would hold good, were the peculiar circumstances of the criminal out of the question; but when these come to be considered, they add considerable force to the above conclusion. In the case of nineteen delinquents out of twenty, the utter want of all means of satisfying their lawful debts was the very cause and motive to the crime. Now then, whereas it is only possible in the case of a man taken at random that he has not wherewithal to pay, it is certain that, in nineteen cases out of twenty, the delinquent has not.
So powerful is the force of custom, that, for a long series of years, judges of the first rank, and country magistrates, none of whom but would have taken it ill enough to have had their wisdom or their humanity called in question, stand upon record as having given their allowance to this abuse. If any one of these magistrates had ever had the spirit to have refused this allowance, the gaoler would for a moment have remained unpaid, and from thenceforward the burthen would have been taken up by that public hand which, from the beginning, ought to have borne it.†
So far is this hardship from being justifiable on the score of punishment, that in most, if not in all our prisons, it is inflicted indiscriminately on all who enter, innocent or guilty. It is inflicted at all events, when it is not known but they may be innocent; for it is inflicted on them at first entrance, when committed only for safe custody. This is not all: it is inflicted on men after they have been proved to be innocent. Even this is not all: to fill up the measure of oppression, it is inflicted on them because they have been proved innocent. Prisoners, after they have been acquitted, are, as if to make them amends for the unmerited sufferings they have undergone, loaded with a heavy fine, professedly on the very ground of their having been acquitted. In some gaols, of a person acquitted of murder a sum of money is exacted, under the name of an acquittal, equal to what it costs an ordinary working man to maintain himself for a quarter of a year: a sum such as not one man in ten of that class, that is, of the class which includes a great majority of the whole people, is ever master of during the course of his whole life.
We now proceed to examine the degree in which imprisonment possesses the several properties desirable in a lot of punishment.
1. Imprisonment possesses the property of efficacy with respect to disablement in great perfection. The most dangerous offender, so long as his confinement continues, is deprived of the power of doing mischief out of doors; his vicious propensities may continue at their highest pitch, but he will have no opportunity of exercising them.
2. Imprisonment is generally exceptionable on the score of frugality; none of the inconveniences resulting from it being convertible to profit. It is also generally accompanied with expense, on account of the maintenance of the persons confined. In these calculations of expense, that loss ought not to be forgotten which results from the suspension of the lucrative labours of the prisoner, a loss which is often continued beyond the period of his imprisonment, owing to the habits of idleness it has induced.*
3. Imprisonment is objectionable in respect of equality. If we recur to the catalogue of privations of which it consists, it will be seen that the inequality is extreme, when one prisoner is sickly, and the other healthy; when one is the father of a family, and the other has no relations; when the one is rich, and accustomed to all the enjoyments of society, and the other poor, and his usual condition is one of misery.
One party may be deprived of his means of subsistence; another may be scarcely affected in this respect. It may be said, is not this loss merely temporary? may it not be considered as a forfeiture which forms a part of the punishment? If the individual belong to a profession, the exercise of which cannot be interrupted without great risk of its total loss, the consequence may be his absolute ruin. This is one of those cases in which a latitude may properly be left to the judge, of commuting this punishment for another. A pecuniary punishment may frequently, with propriety, be substituted. The greater number of offenders, however, are not in a condition to furnish this equivalent. It would therefore be necessary to have recourse to simply afflictive punishments. The degree of infamy attached to these punishments would, however, not be an objection in case the offender consented to the exchange; and this consent might be made a necessary condition.
Among the inconveniences which may be attached to imprisonment, there is one which is particularly inequable. Take away paper and ink from an author by profession, and you take away his means of amusement and support: you would punish other individuals, more or less, according as a written correspondence happened to be more or less necessary for their business or pleasure. A privation so heavy for those whom it affects, and at the same time so trifling for the greater number of individuals, ought not to be admitted in quality of a punishment. Why should an individual, who has received instruction in writing, be punished more than another. This circumstance ought rather to be a reason for indulgence: his sensibility has been augmented by education; and the instructed and cultivated man will suffer more from imprisonment than the ignorant and the clownish.
On the other hand, though the punishment of imprisonment is inequable, it should be observed, that it naturally produces an effect upon every one. There is no individual insensible to the privation of liberty — to the interruption of all his habits, and especially of all his social habits.
4. Imprisonment is eminently divisible, with respect to its duration. It is also very susceptible of different degrees of severity.
5. Under the present system, the exemplarity of imprisonment is reduced to the lowest term. In the Panopticon, the facility afforded to the admission of the public, adds much to this branch of its utility.
However, if the prisoners are not seen, the prison is visible. The appearance of this habitation of penitence may strike the imagination, and awaken a salutary terror. Buildings employed for this purpose ought therefore to have a character of seclusion and restraint, which should take away all hope of escape, and should say, “This is the dwelling-place of crime.”
6. Simplicity of Description.— Under this head there is nothing to be desired. This punishment is intelligible to all ages, and all capacities. Confinement is an evil of which every body can form an idea, and which all have, more or less, experienced. The name of a prison at once recalls the ideas of suffering as connected with it.
Let us here stop to examine three auxiliary punishments, that under special circumstances, and for a limited time only, may be usefully made to accompany afflictive imprisonment. These auxiliaries are solitude, darkness, and hard diet. Their distinguishing merit consists in their subserviency to reformation.
That the three hardships, thus named, have a peculiar tendency to dispose an offender to penitence, seems to be the general persuasion of mankind. The fact seems to be pretty generally acknowledged; but the reasons are not altogether obvious, nor do they seem to be very explicitly developed in the minds of those who show themselves strenuously convinced of the fact. An imperfect theory might naturally enough induce one to deny it. “What is it,” it may be said, “that is to produce in the offender that aversion to his offence which is styled penitence? It is the pain which he experiences to be connected with it. The greater, then, that pain, the greater will be his aversion; but of what kind the pain be, or from what source it issues, are circumstances that make no difference. Solitude, darkness, and hard diet, in virtue of a certain quantity of pain thus produced, will produce a certain degree of aversion to the offence: be it so. But whipping, or any other mode of punishment that produced a greater pain, would produce a stronger aversion. Now, the pain of whipping may be carried to as high a pitch as the pain produced by this group of hardships altogether. In what respect, then, can these have a greater tendency to produce penitence, than whipping?”
The answer is, that the aversion to the offence depends, not merely upon the magnitude of the pain that is made to stand connected with it; but it depends likewise upon the strength of the connexion which is made to take place between those two incidents in the patient’s mind. Now, that solitude, darkness, and hard diet, have a greater tendency than any other kind of hardship to strengthen this connexion, I think, may be satisfactorily made out.
Acute punishment, such as whipping, at the time it is inflicted, leaves no leisure for reflection. The present sensation, with the circumstances that accompany it, is such as engrosses the whole attention. If any mental emotion mix itself with the bodily sensation, it will rather be that of resentment against the executioner, the judge, the prosecutor, or any person whose share in the production of the suffering happens to strike the sufferer most, than any other. The anguish is soon over; and as soon as it is over, the mind of the patient is occupied in the eager pursuit of objects that shall obliterate the recollection of the pain that he has endured; while all the objects by which he is surrounded contribute to repel those salutary reflections upon which his reformation depends. Indeed, as soon as the anguish is over, a new emotion presents itself — an emotion of joy which the patient feels at the reflection that his suffering is over.
The gradual and protracted scene of suffering produced by the combination of punishments we are now considering, is much more favourable to the establishment of the wished-for effect. By solitude, a man is abstracted from those emotions of friendship or enmity which society inspires; from the ideas of the objects their conversation is apt to bring to view; from the apprehension of the disagreeable situations their activity threatens to expose him to, or the pleasures in which they solicit him to engage. By confinement, he is abstracted from all external impressions but such as can be afforded him by the few and uninviting objects that constitute the boundaries, or compose the furniture of a chamber in a prison; and from all ideas which, by virtue of the principle of association, any other impressions are calculated to suggest.
By darkness, the number of the impressions he is open to is still further reduced, by the striking off all those which even the few objects in question are calculated to produce upon the sense of sight. The mind of the patient is, by this means, reduced, as it were, to a gloomy void; leaving him destitute of all support but from his own internal resources, and producing the most lively impression of his own weakness.
In this void, the punishment of hard diet comes and implants the slow but incessant and corroding pain of hunger; while the debility that attends the first stages of it (for the phrensy that is apt to accompany the last stages is to be always guarded against,) banishes any propensity which the patient might have left, to try such few means of activity as he is left undeprived of, to furnish himself with any of the few impressions he is still open to receive. Meantime, that pain and this debility, however irksome, are by no means so acute as to occupy his mind entirely, and prevent altogether its wandering in search of other ideas. On the contrary, he will be forcibly solicited to pay attention to any ideas which, in that extreme vacancy of employment, are disposed to present themselves to his view.
The most natural of all will be to retrace the events of his past life; the bad advice he received; his first deviations from rectitude, which have led to the commission of the offence for which he is at the time undergoing punishment — a crime, all the pleasures derived from which have been already reaped, and of which all that remains is the melancholy suffering that he endures. He will recall to his recollection those days of innocence and security which were formerly his lot, and which, contrasted with his present wretchedness, will present themselves to his imagination with an increased and factitious degree of splendour. His penitent reflections will naturally be directed to the errors of which he has been guilty: if he have a wife, or children, or near relations, the affection that he once entertained for them may be renewed by the recollection of the misery that he has occasioned them.
Another advantage attendant on this situation is, that it is peculiarly fitted to dispose a man to listen with attention and humility to the admonitions and exhortations of religion. Left in this state of destitution in respect of all external pleasures, religious instructions are calculated to take the stronger hold of his mind. Oppressed by the state of wretchedness in which he finds himself, and by the unlooked-for or unknown events that have led to the detection of his crime, the more he reflects upon them, the more firmly will he be convinced of the existence of a providence which has watched over his actions, and defeated his best concerted contrivances. The same God that punishes him, may also save him; and thenceforward the promises of eternal bliss or torment will more anxiously engage his attention — promises of happiness in another state of being, in case of repentance, and denunciations of torments prepared for the guilty in the regions of eternal night, of which his present situation seems a prelude and a foretaste, will fix his regard. In a frame of mind such as this, to turn a deaf ear to the admonitions and consolations afforded by religion, a man must be very different from the ordinary caste of men. Darkness, too, has, in circumstances like this, a peculiar tendency to dispose men to conceive, and in a manner to feel, the presence of invisible agents. Whatever may be the reason, the fact is notorious and undisputed. When the external senses are restrained from action, the imagination is more active, and produces a numerous race of ideal beings. In a state of solitude, infantine superstitions, ghosts, and spectres, recur to the imagination. This, of itself, forms a sufficient reason for not prolonging this species of punishment, which may overthrow the powers of the mind, and produce incurable melancholy. The first impressions will, however, always be beneficial.
If, at such a time, a minister of religion, qualified to avail himself of these impressions, be introduced to the offender thus humiliated and cast down, the success of his endeavours will be almost certain, because in this state of abandonment he will appear as the friend of the unfortunate, and as his peculiar benefactor.
This course of punishment, thus consisting of solitude, darkness, and hard diet, is, as has been observed, when embodied, a sort of discipline too violent to be employed, except for short periods: if greatly prolonged, it would scarcely fail of producing madness, despair, or more commonly a stupid apathy. This is not, however, the place for fixing the duration of the punishment proper for each species of offence: it ought to vary according to the nature of the offence, the degree of obstinacy evinced by the offender, and the symptoms of repentance which he exhibits. What has been already said, is sufficient to show that the mass of punishments in question may be employed with the greatest advantage simultaneously: they mutually aid each other. In order to produce the desired effect most speedily, even the sort of food allowed may be rendered unpalatable as well as scanty, otherwise there would be danger lest to a young and robust person the constantly recurring gratification afforded to the palate, might render him insensible to the loss of all other pleasures.
If any punishment can in itself be popular, this, I think, promises to be so. It bears a stronger resemblance than any other to domestic discipline. The tendency which it has to lead the offender to acknowledge the evil of his offence and the justice of his sentence, is the same which an indulgent father desires his punishments to possess, when he inflicts them upon his children; and there is no aspect which it is more desirable the law should assume than this.
The effects produced by solitary confinement are not matters of mere conjecture: they have been ascertained by experience, and are reported upon the best authorities.
Speaking of the cells in Newgate, “I was told,” says Mr. Howard,* “by those who attended me, that criminals who had affected an air of boldness on their trial, and appeared quite unconcerned at the pronouncing sentence upon them, were struck with horror, and shed tears, when brought to these darksome, solitary abodes.”
“I remember an instance,” says Mr. Hanway,† “some years before the law for proceeding to sentence upon evidence, of a notorious malefactor, who would not plead. It was a question, whether he should be brought to the press; but the jailor privately recommended to the magistrates to try solitary confinement in prison. This produced the effect, for in less than twenty-four hours, the daring, artful felon chose to hold up his hand at the bar, and quietly submit to the laws, rather than remain in such a solitary state without hope.”
The same gentleman mentions* a set of cells, provided for the purpose of solitary confinement, in Clerkenwell Bridewell, by order of the Justices of the Peace for that division. One of those magistrates, he says, assured him, “That every person committed to those solitary apartments had been in a few days reformed to an amazing degree.” The apartments, though solitary, were not dark, nor is any thing said about the circumstance of diet.
Directly opposed to solitary imprisonment is the promiscuous association of prisoners. The suffering which results from this circumstance, is not the result of direct intention on the part of the magistrate. It is an evil acknowledged, and yet suffered still to exist to a very considerable extent. It is evidently not so much inflicted, as admitted, from the supposed inability of government to exclude it; the great and only objection to its exclusion being the expense of the arrangement necessary to the accomplishment of that purpose. The advantage by which it is recommended, is that of frugality; it is less expensive to shut up prisoners in one room, than to provide separate apartments for each one, or even to keep them divided into classes.†
This promiscuous assemblage of prisoners, considered as part of the punishment, has no penal effect upon the most audacious and the most perverse. On the contrary, with reference to them, it renders imprisonment less painful: the tumult with which it surrounds them, diverts them from the misery of their situation, and from the reproaches of their consciences. It is therefore an evil most severe for the prisoner of refinement and sensibility. It is an addition to the punishment of imprisonment, evidently unequable, unexemplary, and unprofitable, producing a variety of unknown sufferings, such that those only who have experienced them can be fully acquainted with their extent.
But the great and decisive objection to the promiscuous association of prisoners, considered as a punishment, is, that it is directly opposed to their reformation. Instead of rendering a delinquent better, its evident tendency is to make him worse. The ill effect which, in the instance of indelible infamy, is only problematical, is, in the instance of this species of hardship, certain; it obliterates the sense of shame in the mind of the sufferer; in other words, it produces insensibility to the force of the moral sanction.
This ill effect of the promiscuous association of prisoners is too obvious not to strike even the most superficial spectator. Criminals, confined together, are corrupted, it is said, by the society of each other: there are a thousand ways of diversifying the expression, and it is generally set off with great exuberance of metaphor. The word corruption, and the greater part of the terms that compose the moral vocabulary, are not calculated, of themselves, to convey any precise import, but serve rather to express the disapprobation which he who uses them happens to entertain of the practices in question, than the tendency to produce mischief, which is, or at least ought to be, the ground of it. In order, then, to form a precise idea of the phenomena in which this corruption displays itself, let us examine the mischievous habits produced by this promiscuous intercourse, and the way in which it tends to produce mischief in society.
The ill consequences of the association in question, may be comprised under the following heads:—
1. It strengthens, in the minds of all parties concerned, the motives which prompt to the commission of all sorts of crimes.
2. It diminishes the force of the considerations which tend to restrain them.
3. It increases their skill, and by that means the power, of carrying their obnoxious propensities into practice.
Crimes are the sort of acts here in question. Now, the names of crimes are words, for which precise ideas have, or might at least be found: they are evils of a certain description. The names of the motives that prompt a man to the commission of a crime, are also the names of pains and pleasures. In examining, therefore, the consequences of the association of delinquents, under the foregoing heads, we tread upon clear and palpable ground, unobscured by metaphor and declamation.
1. As to the motives by which men are prompted to the commission of crimes: These are the expectation of the pleasures which are the fruit of them. By far the greater number of the offences which bring men to a prison, are the offspring of rapacity. Crimes issuing from any other motive are so few as scarcely to demand in this view any separate notice. The bulk of offenders will be of the poorer sort; among them, the produce of a little plunder will go in the purchase of pleasure much beyond that which the ordinary produce of their labour would enable them to purchase; such as more food, more delicate liquors, in greater plenty and more delicious — finer clothes, and more expensive pleasures. These things naturally form the subject of conversation among the prisoners, and an inexliaustible subject of boasting on the part of those who by their skill or good fortune have acquired the means of enjoying them. These recitals give a sort of superiority which those who possess it are fond from a principle of vanity, to display and magnify to the humble and admiring crowd of their less fortunate associates. They inflame the imagination of the hearers; and, in a word, their propensity to gratify their rapacity by all sorts of crimes, is increased by the prospect of the pleasures of which the means are furnished by these crimes. The more numerous the association, the more varied the exploits to be recounted; and what subject more naturally the subject of conversation, than the circumstances which have brought them together?
2. While, on the one hand, as has been just observed, all the vicious propensities are nourished and invigorated — on the other hand, all considerations tending to restrain the commission of offences are repelled and enfeebled. These considerations belong to the one or the other of the three sanctions — the political, the moral, or the religious.
Those derived from the political sanction are the various punishments appointed by law: amongst these, that which they are actually undergoing, have undergone, or are about to undergo. Of these sufferings it will naturally be the study of them all to make as light as possible; to which end, the society of each other will afford them many powerful assistances. From pride, each man will endeavour to make his own sense of his own sufferings appear to others as slight as possible: he will undervalue the afflicting circumstances of his situation; he will magnify any little comforts which may attend it, and, as the common phrase is, will put as good a face upon the matter as he can. Thus the most intrepid and proud becomes a patron for all the others. The sensibilities of all are gradually elevated to the same pitch: it would be matter of shame to them not to bear their misfortunes with equanimity. Even from mere sympathy, many will derive a powerful motive to soothe the sufferings of their partners in affliction — to congratulate them on the termination of such as are past, to relieve them under such as are present, and to fortify them against such as may be to come. It may possibly be observed, that to ascribe to persons of the class in question any such benevolent affections, is to attribute to them virtues to which they are altogether strangers. But to suppose that men consist only of two classes, the altogether good, and the altogether bad, is a vulgar prejudice. The crime which subjects a man to the lash of the law may leave him possessed of a thousand good qualities, and more especially of sympathy for the misfortunes of others. Daily experience may convince us of this, and lead us to believe that the criminal are not always altogether vicious.
The considerations derived from the moral sanction are the various evils, positive and negative, apprehended from the ill-will of such persons with whom the person in question is in society. Whilst a man remains in general society, though his character may be the subject of general suspicion, he will be obliged to keep a guard upon his actions, that he may not too strongly confirm these suspicions and render himself altogether despicable. But in a prison the society is unmixed, having interests of its own, opposite to the former, governed by habits and principles opposite to those which are approved in general society. The habits and practices which were odious there, because they were mischievous there — not being mischievous, are not odious here. Theft is not odious among thieves, who have nothing to be stolen. It is in vain for them to make pretensions to probity; they agree, therefore, by a tacit convention, to undervalue this virtue. The mixed qualities of patience, intrepidity, activity, ingenuity, and fidelity, which are beneficial or not according as they are subservient to the other, will be magnified, to the prejudice of the former. A man will be applauded for his patience, though it were exerted in lying in wait for a booty; for his intrepidity. though manifested in attacking the dwelling of a peaceable householder, or in defending himself against the ministers of justice; for his activity, though employed in seizing the unwary traveller; for his ingenuity, though displayed in working upon the sympathetic feelings of some deluded, compassionate benefactor; for his fidelity, though employed in screening his associates in some enterprise of mischief from the pursuit of the injured. These are qualities which enjoy the highest estimation in such society; and by their possession, that thirst for sympathy and applause is gratified, of which every man, in whatever situation he is placed, is desirous.
The probity which is held in honour, in such society, is not intended to be useful to mankind at large: its rules may be strictly observed in the society in which it is established, and disregarded to the prejudice of all persons not connected with that society. The Arabs, who live by plunder, are remarkable for their honesty towards the members of their own tribe. Thus also, that there is honour among thieves, has become proverbial.*
The considerations derived from the religious sanction, are the sufferings apprehended from the immediate will of the Deity, in some degree perhaps in the present, but chiefly in a future life. This displeasure is, under the Christian religion, and particularly the Protestant, invariably believed to be annexed, with few or no exceptions, to all those malpractices which bring men into prisons. The considerations, therefore, which that sanction affords, are to be numbered among the considerations which tend to restrain men from committing crimes. Now the force of this sanction, acting in opposition to that of the local moral sanction, which is generated and governs in a prison, will naturally have the whole force of this latter exerted against it to overthrow it. Not that a prison is the region of acute and scrupulous philosophy: the arguments there made use of, will be addressed to the passions, rather than the judgment. The being of a God, the authority of Revelation, will not be combated by reason. The force of this sanction will be eluded rather than opposed; the attention will be diverted from the idea of God’s displeasure, to the improbability of its being manifested. The authority of revelation will be combated by satires upon its ministers; and that man will be pronounced brave, who shall dare to deny the one, and despise the other. And arguments of this kind will be found to have most influence upon the members of such societies.
3. The third and last of the ways in which the association of malefactors in prisons contributes to corrupt them, is by increasing their skill, and by that means their power of carrying their mischievous propensities, whatever they may be, into practice.
That their conversation will naturally turn upon their criminal exploits, has been already observed. Each malefactor will naturally give a detail of the several feats of ingenuity which, in the course of those exploits, the occasion led him to practise. These facts will naturally be noted down, were it only on the score of curiosity. But as means of gratifying those propensities, which the situation in question has a strong tendency to strengthen and confirm, they will make a much more forcible impression. An ample mass of observations will be soon collected, drawn from the experience of the whole society, and each particular member of it will soon be wise with the wisdom of the whole. Prisons, therefore, have commonly and very properly been styled schools of vice. In these schools, however, the scholar has more powerful motives for, and more effectual means of, acquiring the sort of knowledge that is to be learnt there, than he has of acquiring the sort of knowledge that is taught in more professed schools. In the professed school, he is stimulated only by fear; he strives against his inclination: in these schools of vice, he is stimulated by hope, acting in concert with his natural inclination. In the first, the knowledge imparted is dispensed only by one person; the stock of knowledge proceeds from one person: in the others, each one contributes to the instruction of all the others. The stock of knowledge is the united contribution of all. In professed schools, the scholar has amusements more inviting to him than the professed occupations of the school: in these, he has no such amusements; the occupation in question is the chief of the few pleasures of which his situation admits.
To the most corrupt, this promiscuous association is mischievous. To those committed for a first offence, who have yielded to the temptations of indigence, or have been misled by evil example; who are yet young, and not hacknied in crimes; punishment, properly applied, might work reformation. This association can only render such more vicious; they will pass from pilfering to greater thefts, till they are guilty of highway robbery and murder. Such is the education yielded by promiscuous association of criminals in prison.
Let there be three kinds of imprisonment, differing one from another in the degree of their severity.
The first for insolvents: in case of rashness or extravagance, in lieu of satisfaction. The second for malefactors whose imprisonment is to be temporary: these may be styled second-rate malefactors. The third for malefactors whose imprisonment is perpetual: These may be styled first-rate malefactors.
1st. Let all insolvents be upon the footing of bankrupts; compellable to discover, under pain of death, or other heavy penalty; on discovery not liable to imprisonment of course, but liable in case of rashness or extravagance: or else let rashness or extravagance be presumed in the first instance; and let it lie upon the insolvent to exculpate himself. To the same prison let such persons be committed as are arrested upon mesne process. On persons of this class, the imprisonment comes in before judgment, to enforce — after judgment, to stand in lieu of satisfaction. Here let there be no mark of infamy; nor let there be here any rigour, either real or apparent.
The second kind of imprisonment is designed for correction as well as for example. The real, therefore, and the apparent punishment, ought to be upon a par. Here let labour be added to imprisonment, and for the last week, or fortnight, or month, solitude, darkness, and spare diet. Here let a stigma be inflicted; but let that stigma be a temporary one. It will answer two purposes: first, that of example, as increasing the apparent punishment; second, that of security, by preventing escape.
The third kind of imprisonment is destined for example only. The end of correction is precluded; since the delinquent is never to mix with society again. Here, too, for the same purposes as in the former case, let a stigma be inflicted; and let that stigma be perpetual. Here let the apparent condition of the delinquent be as miserable, and the real as comfortable, as may be. Let the gentleman occupy himself as he pleases: let the yeoman, who has an art, exercise his art, and let him be a sharer in the profits. Let the labour of the yeoman who knows no art be more moderate than in the temporary prison.
The diet in many prisons is in part provided for by private benefactions. Such benefactions are of use only upon supposition of that gross negligence on the part of government, of which they are a pregnant testimony. The demand a man in the situation in question has for food, is not at all varied by the happening or not happening of a casual act of humanity by a chance individual. Whatever be the proper allowance, he ought to have as much, although no private benefaction were given for that purpose; he ought not to have more, were the amount of such benefactions ever so considerable. If ever the legislature should fulfil this obvious and necessary duty, all such private benefactions should be taken into the hands of the public. Such resumption, far from being a violation of the wills of the benefactors, would be a more complete execution of them than any they could have hoped for.
For the same reason, all casual benefactions of particular persons, to particular delinquents, should be prevented. The way to do this is not to prevent the money’s being given, but to prevent its being spent, at least in food and liquors: the introduction of money could not be prevented, without establishing a search too troublesome and humiliating to be executed with the strictness requisite to answer the purpose; but articles so bulky as those of food and liquors might easily be excluded. Such an institute would tend in no inconsiderable degree to promote restitution. At present, in all offences of rapacity, that is, in nineteen out of twenty of the crimes that are committed,* the greater a man’s guilt has been — the more mischief he has done, the better he fares while he is in prison. It is seldom that the whole produce of the crime is found upon the delinquent at the time of his being apprehended; and though it be found on him, if it consist in money, it is seldom that it can be identified in such manner as to warrant the restitution of it against the consent of the delinquent. Commonly, if it be not spent, it is in the hands of some friend of the delinquent; an associate in iniquity, a wife or mistress. Thus secured, it is disposed of at his direction, and either lavished in debauchery, or in feeing lawyers to obstruct the course of justice.
When, therefore, the plunder is of no use to him, it will require a much less effort on his part, to restore it to the right owner. The workings of conscience will be powerfully seconded by such an institution.
Whatever, therefore, is found upon the person, or in the possession of any one who, by virtue of a charge upon oath, is apprehended for a felony, should be impounded in the hands of the officer. As much of it as consists in money, or other articles that include a considerable value in a small compass, should be sealed up with the seal of the magistrate; who should have it in his option to keep it in his own custody, or commit it to that of the ministerial officer, giving, in either case, a receipt to the suspected felon.
An objection to imprisonment, when all are upon an equal footing with respect to entertainment, is, that the punishment is apt to be disproportionate. The rich are punished more than the poor; or, in other words, those who have been accustomed to good living, more than those who have been accustomed to hard living. On the other hand, to allow those who are committed for crimes of rapacity to give in to any expense, while any part of the booty they may have made remains unrestored, is to allow them to enjoy the profit of their crimes; to give the criminal an indulgence at the expense of those whom he has injured.
Here, then, arises a difference in the treatment proper to be given in this respect to different crimes. Persons committed for crimes of rapacity should, in the case where the profit of the crime has been reaped, be debarred, until complete restitution shall have been made, of the liberty of procuring themselves those indulgences that are to be had for money. Persons committed for any other crimes may be allowed it.
With respect to restitution, a further caution is to be observed. It will happen very frequently, that a person apprehended for one offence has been guilty of many others. For this reason, it is not the restitution of the booty gained by the first offence for which the malefactor is apprehended, that ought to be deemed sufficient to entitle him to the liberty of purchasing indulgences. A time ought to be limited (suppose a month or six weeks,) and notice given for any persons who, within a certain time (suppose a year,) have been sufferers by him, to come in and oppose the allowance of such liberty. Very light proof in such case ought to be held sufficient.
Let us return for a moment to the different kinds of prisons. The different purposes for which they are destined ought to be very decidedly marked in their external appearance, in their internal arrangements, and in their denomination.
The walls of the first sort ought to be white — of the second, grey — of the third, black.
On the outside of the two last kinds of prisons may be represented various figures, emblematical of the supposed dispositions of the persons confined in them. A monkey, a fox, and a tiger, representing mischief, cunning, and rapacity, the sources of all crimes, would certainly form more appropriate decorations for a prison than the two statues of melancholy and raving madness, formerly standing before Bedlam. In the interior, let two skeletons be placed, one on each side of an iron door: the occasional aspect of such objects is calculated to suggest to the imagination the most salutary terrors. A prison would thus represent the abode of death, and no youth that had once visited a place so decorated, could fail of receiving a most salutary and indelible impression. I am fully aware, that to the man of wit these emblematical figures may serve as matter for ridicule: he admires them in poetry; he despises them when embodied in reality. Fortunately, however, they are more assailable by ridicule than by reason.*
Distinguishing the several species of prisons by characteristic denominations, is far from being a useless idea. Justice and humanity to insolvent debtors, and to persons detained upon suspicion, require that they ought to be screened even from the apprehension of being confounded with delinquents, a risk to which they are naturally exposed, where all places of confinement bear the same appellation. If no such sentiment were found to be already in existence, the legislator ought to make it his business to create it: but the truth is, that it does exist, and it is the most valuable classes of the community that are most severely wounded by this want of discrimination.
A difference in the situation and name affords another means of aggravating one of the most important parts of the punishment — the apparent punishment.
The first sort of prison may be called the House for Safe Custody— the second, the Penitentiary House— the third, the Black Prison.
The first of these names does not convey any idea of misconduct; the second does, but at the same time presents the idea of reformation; the third is calculated to inspire terror and aversion.
With a view to reformation in the case of offences punished by temporary imprisonment, part of the punishment may consist in learning by heart a certain part of the criminal code, including that part which relates to the offence for which the party is punished. It might be digested into the form of a catechism.
In second-rate felonies and misdemeanors, where, after being punished, the offender is returned into society, it is of importance to lighten as much as possible the load of infamy he has been made to bear. The business is to render infamous, not the offender, but the offence. The punishment undergone, upon the presumption of his being reclaimed, he ought not, if he is returned into society, to have his reputation irretrievably destroyed. The business is, then, for the sake of general prevention, to render the offence infamous, and, at the same time, for the sake of reformation, to spare the shame of the offender as much as possible. These two purposes appear, at first, to be repugnant: how can they be reconciled? The difficulty, perhaps, is not so great as it at first appears. Let the offender, while produced for the purpose of punishment, be made to wear a mask, with such other contrivances upon occasion as may serve to conceal any peculiarities of person. This contrivance will have a farther good effect in point of exemplarity. Without adding anything to the force of the real punishment — on the contrary, serving even to diminish it, it promises to add considerably to the force of the apparent. The masks may be made more or less tragical, in proportion to the enormity of the crimes of those who wear them. The air of mystery which such a contrivance will throw over the scene, will contribute in a great degree to fix the attention, by the curiosity it will excite, and the terror it will inspire.
Quasi Imprisonment consists in the confinement of an individual to the district in which his ordinary place of residence is situated.
Relegation consists in the banishment of an individual from the district in which his ordinary place of residence is situated, and his confinement to some other district of the state.
Banishment consists in the expulsion of a man from the country in which he has usually resided, and the prohibition of his return to it.
These three species of punishment may be either temporary or perpetual.
Relegation and banishment are punishments unknown to the English law. Transportation, as we shall presently have occasion to observe, is in its nature totally different. The exclusion of Papists from a certain district about the court is to be considered rather as a measure of precaution than of punishment.
It is true, that the condition of persons living within the rules of a prison corresponds pretty accurately with the idea of territorial confinement. But this kind of territorial confinement is not inflicted in a direct way as a punishment. The punishment inflicted by the law is that of imprisonment, which the prisoner is allowed to commute upon paying for it. A man is not committed to the rules: he is committed to the prison, and upon paying what the jailor chooses, or is permitted to demand, he has the liberty of the rules; that is, of being in any part of a certain district round about the jail.*
The several inhabitable districts which are privileged from arrest, may be considered as scenes of territorial confinement with respect to offenders, who resort to them to escape being arrested and sent to prison. A man in such cases voluntarily changes the severer species of restraint into a milder.
In France, instances of relegation were not unfrequent. Under the old regime, a man was ordered to confine himself to his estate, or to quit his estate and go and live at another place. A punishment, however, of this sort, almost always fell upon a man of rank, and generally was rather an arbitrary expression of the personal displeasure of the sovereign, than a regular punishment inflicted in the ordinary course of justice. The person on whom it fell was commonly a disgraced minister, or a member of parliament. It has repeatedly happened, that a whole parliament has been relegated for refusing to register a particular edict. In these cases, however, it was often employed, not so much as a punishment, as a means of prevention — to prevent what were called intrigues. The exercise of such an act of authority was a symptom of apprehension and weakness on the part of the minister.
When a man is banished from all the dominions of his own state, he has either the whole world besides left for him to range in, or he is confined to a particular part of it. In the first case, it may be said to be indefinite, with respect to the locus ad quem; in the other, definite.†
It might seem at first sight as if the defining the locus ad quem in banishment would be an operation nugatory and impracticable. For banishment is one of those punishments that are to be carried into effect, if at all, only by the terror of ulterior punishment. Now to be liable to ulterior punishment at the hands of his own state, a man must be still in the power of that state; which, by the supposition, it would appear as if he could not be. There are three cases, however, in which he may be so still:— 1. Where the banishment is only temporary; 2. Where, though his person is out of the dominions of his own state, his property, or some other possession of his, is still within its power; 3. Where the foreign state to which he is exiled is disposed on any account to co-operate with his own, and either to punish, or give up to punishment, such persons as the latter shall deem delinquents.
The inconveniences of territorial confinement, whether by relegation or banishment, are for the most part of the same description as those of simple imprisonment; they are apt in some respects to be greater, in others less severe than simple imprisonment.
Territorial confinement is, however, susceptible of such infinite diversity, arising from the nature of the place — the extent of the district — the circumstances of the delinquent — that nothing like uniformity can be met with, and scarce any proposition can be laid down respecting it, that shall be generally true.
In case of relegation, the liberty of beholding the beauties of nature and of the arts, of enjoying the company of one’s friends and relations, of serving them and advancing one’s own fortune, is liable to be more or less abridged.
The liberty of exercising any public power, and of taking journies for the sake of health or of pleasure, are subject to be entirely taken away.
The liberty of carrying on business for a livelihood will be subject to be more or less abridged, according to its nature; and in respect of some particular species of business or trade, the opportunity of exercising it will be subject to be entirely taken away.
In respect to banishment, the inconveniences are liable to vary to such a degree, both in quality and species, that nothing can be predicated of this mode of punishment, that shall be applicable to all cases.
The sort of evils with which it will be found to be most generally accompanied, may be arranged under the following heads:—
Separation from one’s friends, relations, and countrymen.
Loss of the liberty of enjoying objects of pleasure or of amusement to which one has been accustomed, as public diversions, or the beauties of nature or art.
Loss of the opportunity of advancement in the way of life in which one had engaged, as in the military line or in public offices.
Loss of the opportunity of advancing one’s fortune, and derangement in one’s affairs, whether of trade or any other lucrative profession. But under this head, scarce anything can with certainty be said, till the business of each delinquent is known, and the country to which he is relegated. All opportunity of advancing one’s fortune may be totally taken away, or may be changed more or less for the worse; but it may even be improved. A workman acquainted with only one branch of a complicated manufacture, if relegated to a country in which no such manufacture was carried on, would lose the whole of his means of subsistence, so far as it depended upon that manufacture. A man engaged in his own country in the profession of the law, relegated to a country governed by different laws, would find his knowledge altogether useless. A clergyman of the church of England would lose the means of subsistence derivable from his profession, if relegated to a country in which there were no members of that sect to be found.
The quantity of suffering incident to banishment, and, in some cases, to relegation, will depend upon the individual’s acquaintance, or want of acquaintance, with foreign languages. For this purpose it ought to be borne in mind, that in every country the great majority of the people know no other language than their own. A great deal will depend upon the language a man speaks. A German, or an Italian, merely by being banished his own state, would suffer nothing in this respect, because in other states he will find the bulk of the people speaking precisely the same language. Next to a German or an Italian, a Frenchman would be least exposed to suffer, on account of the popularity of the French language in other European nations. An Englishman (except in America,) a Swede, a Dane, and a Russian, would find themselves worse off in this respect than inhabitants of other European countries.
A man being among people with whose language he is unacquainted, is liable to be exposed to the most serious evils. A difficulty in conversation imports a difficulty in making known all one’s wants; in taking the necessary steps for procuring all sorts of pleasures, of warding off all sorts of pains. Though so much of the rudiments of a language should be acquired as may be sufficient for the common purposes of life, a man rarely acquires it in such perfection as to enable him to enjoy, unembarrassed, the pleasure of conversation: he will feel himself condemned to a perpetual state of inferiority, which must necessarily interfere with, and obstruct his engaging in any profitable employment.
To some people, banishment may be rendered in the highest degree irksome by the manners and customs of the people among whom the individual is cast. The words, manners and customs, are here employed in their greatest latitude, and are considered as comprising every circumstance upon which a state of comfortable existence depends. The principal objects to which they refer are diet, clothing, lodging, diversions, and every thing depending on difference of government and religion; which last has, among the lower classes at least, no inconsiderable influence upon the sympathies and antipathies of persons in general.
Throughout Europe, especially among persons in the higher ranks of life, a certain degree of conformity in manners and customs prevails: but a Gentoo, banished from his own country, would be rendered extremely wretched, especially on the score of religion.
Change of climate is another circumstance of importance: the change may be for the better; but the bulk of mankind, from the effects of long habit, with difficulty accustom themselves to a climate different from that of their native country. The complaints of expatriated persons usually turn upon the injuries their health sustains from this cause.
With respect to all these several evils which are thus liable to arise out of the punishment of banishment, no one of them is certain to have place; they may or may not exist; in respect of severity, they are liable to unlimited variation, and it may even happen that the good may preponderate over the evil.*
In point of frugality, it seems as if these several punishments were all of them more eligible than imprisonment, at least than the system of imprisonment as at present managed; and that quasi-imprisonment and relegation are more frugal than banishment.
Under imprisonment, a man must at all events be maintained. Simple imprisonment adds nothing to the facility which any man has of maintaining himself by his labour: it takes from that facility in many cases. By imprisonment, some people will always be altogether debarred from maintaining themselves. These must be maintained at the expense of the public. An imprisoned man, therefore, is, on an average, a burthen: his value to the state is negative. A man at liberty is, at an average, a profit: his value to the state is positive; for each man, at an average, must produce more than he consumes, else there would be no common stock. A banished man is neither a burthen nor a profit: his value to the state is 0; it is greater, therefore, than that of an imprisoned man.
The value of a man under quasi-imprisonment and relegation, may, it should seem, be taken as equivalent or not in any assignable degree, less than that of a man at large. In the only instances in which these modes of punishment occur in England, the sufferer, instead of receiving anything from the public, pays.†
In point of certainty, they have none of them anything to distinguish them from other punishments.
In point of equality, they are all of them deficient,‡ but especially the two latter, and most of all, the last.
To be confined to within the circuit of a small town, can scarcely but be a punishment in some degree to almost all, though to some more, to others less. To live out of one’s own province, or out of one’s own country, is a very severe punishment to many; but to many it is none at all.
It is impossible to state with any accuracy the difference in this respect between relegation and banishment. In one point of view, it should seem as if banishment were the more penal; for the difference in point of laws, language, climate, and customs, between one’s own province, and another province of one’s own state, is upon an average not likely to be so great as between one’s own province and a foreign state. In nations, however, that have colonies, it will generally happen that there are provinces more dissimilar to one another upon the whole in those respects than some of those provinces may be to other provinces of neighbouring nations. How small a change, for instance, would an Englishman find in crossing from Dover to Dunkirk? and how great a change in going from the first of those places to the East or West Indies?
In point of variability, except in respect of time, no punishment of the chronical kind can be more ineligible than these. But in point of intensity, although the degrees of suffering they are liable to produce in different persons are so numerous, yet they are not by any means subject to the regulation of the magistrate. It is not in his power to fix the quantity of punishment upon the whole to anything near the mark he may pitch upon in his own mind.
In point of exemplarity, they all yield to every other mode of punishment, and banishment to the other two. As to banishment, what little exemplarity it possesses, it possesses upon the face of the description. The descriptions of orators and poets have rendered it in some degree formidable upon paper. On the score of execution, it is the essential character of it to have none at all. Removed out of the observation of his countrymen, his sufferings, were they ever so great, can afford no example to his countrymen. This is the lowest degree of inexemplarity a punishment can possess, when even the person of the sufferer is out of the reach of observation. The two others are upon a footing with pecuniary punishment; in which the person of the sufferer is under observation, and occasionally perhaps his sufferings; but there is no circumstance to point out the derivation of the latter from the punishment that produced them. They are inferior to imprisonment; because there the main instrument of punishment, the prison, is continually before his eyes. To quasi-imprisonment and relegation there belongs no such instrument — the punishment, as we have observed, being produced in the first instance not by any material but merely by moral means.*
On the score of subserviency to reformation, there seems to be a considerable difference among these three punishments. Quasi imprisonment is apt to be disserviceable in this view; relegation and banishment rather serviceable than otherwise, more especially the latter.
1. Quasi imprisonment is apt to be disserviceable. The reasons have been already given under the head of Imprisonment. The property which we mentioned as being incident to imprisonment, I mean of corrupting the morals of the prisoners by the accumulating, if one may so say, of the peccant matter, is incident to quasi imprisonment only in a somewhat less degree. Under the former, they can have no other company than that of each other: under the latter, there may be room for some admixture of persons of repute. Under the former, they are forced into the company of each other: under the latter, they may choose to be alone.
2. Relegation is apt to be rather serviceable than otherwise: as in solitary imprisonment, if the delinquent has formed any profligate connexions, it separates him from them, and does not, like simple imprisonment, lead him to form new ones of the same stamp. Turned adrift among strangers, he cannot expect all at once to meet with a set of companions prepared to join with him in any scheme of wickedness. Should he make advances and be repulsed, he exposes himself to their honest indignation, perhaps to the censure of the law. Should the company he happens to fall in with be persons as profligate as himself, it would be some time before he could establish himself sufficiently in their confidence. If he continue to make war upon mankind, it must be with his own single strength. He may find it easier to betake himself to charity or to honest labour. He is separated not only from the objects which used to supply him with the means to commit crimes, but from those which used to furnish him with the motives. The company he meets with in the new scene he enters upon, will either be honest, or at least, for aught he can know to the contrary, will for some time seem to be so. In the meantime, the disapprobation he may hear them express for habits resembling those which subjected him to the punishment he is undergoing, may co-operate with that punishment, and contribute to the exciting in him that salutary aversion to those habits which is styled repentance.
3. In this respect, banishment is apt to be rather more serviceable than relegation. If the delinquent be still of that age at which new habits of life are easily acquired, and is not insensible to the advantages of a good reputation, his exile, if the character in which he appears is not known, will be the more likely to contribute to his reformation, from his finding himself at a distance from those who were witnesses of his infamy, and in a country in which his endeavours to obtain an honest livelihood, will not be liable to be obstructed by finding himself an object of general suspicion. But even though he were to carry with him to the place of his banishment his original vicious propensities, he would not find the same facilities for giving effect to them, especially if the language of the country were different from his own. The laws also of the foreign country being new to him, may on that account strike him with greater terror than the laws of his own country, which he had perhaps been accustomed to evade. And even in case of meeting with success in any scheme of plunder, the want of established connexions for the disposing of it would render the benefit derivable from it extremely precarious. The consideration of all these difficulties would tend to induce him to resort to honest labour as the only sure means of obtaining a livelihood.
But, taking all the above sources of uncertainty into consideration, it will be found that the cases are very few in which banishment can be resorted to as an eligible mode of punishment. In what are called state offences, it may occasionally be employed with advantage, in order to separate the delinquent from his connexions, and to remove him from the scene of his factious intrigues. In this case, however, it would be well to leave him the hope of returning, as a stimulus to good conduct during his banishment.
Having now considered the several punishments which restrain the faculty of locomotion, we proceed to the consideration of those which restrain the choice of occupations. These may be called simply restrictive punishments, and consist in a simple prohibition of performing certain acts.
Upon this occasion we may recur to a distinction already explained, which exists between restraint and punishment. The Civil Code and Police Code are full of restraints which are not punishments. Certain individuals are prohibited from selling poison. Innkeepers are prohibited from keeping their houses open after a certain hour. Persons are prohibited from exercising the professions of medicine or of the law, without having passed through certain examinations.
Simply restrictive punishments consist in the preventing an individual from enjoying a common right, or a right which he possessed before. If the prohibition respect a lucrative occupation; if, for example, an innkeeper or a hackney-coachman be deprived of his license, the prohibition acts as a pecuniary punishment, in its nature very inequable and unfrugal. If a man be deprived of the means of earning his subsistence, he must still be supported; the punishment therefore falls not upon the individual alone, but upon others whom it was not intended to affect.
Employments which are not lucrative may be of an agreeable nature. Their variety is infinite; but there is one point in which they all agree, and which will render it unnecessary to submit them to a detailed discussion. There are none of them, or at least scarcely one, which by its deprivation furnishes a sufficient portion of evil to enable us to rely upon its effect.
As respects pleasures, the mind of man possesses a happy flexibility. One source of amusement being cut off, it endeavours to open up another, and always succeeds: a new habit is easily formed; the taste adapts itself to new habits, and suits itself to a great variety of situations. This ductility of mind, this aptitude to accommodate itself to circumstances as they change, varies much in different individuals; and it is impossible before-hand to judge, or even to guess, how long an old habit will retain its dominion, so that its privation shall continue a real punishment.
This is not the only objection. Restrictive laws are very difficult of execution; they always require a subsidiary punishment, of which the effect is uncertain. If you prohibit an individual from gaming, drunkenness, dancing, and music, it becomes necessary to appoint an inspector for all these things, in all places, to see that your prohibition is observed. In a word, punishments of this kind are subject to this dilemma: either the attachment to the object prohibited is very weak or very strong: if strong, the prohibition will be eluded; if weak, the object desired will not be obtained.
In respect of exemplarity, they are equally defective: the privations they occasion are not of a nature to be generally known, or if known, to produce a strong effect upon the imagination; the misery they produce rankles in the mind, but is completely hidden from the public eye.
These are some of the circumstances which have reduced the employment of these punishments within so narrow a compass: they are too uncertain in their effects, and too easily eluded, to allow of their use, as the sanction to a general law. It is true, that if judges were acquainted with the characters and circumstances of individuals, they might avail themselves of them with good effect; but this knowledge can scarcely ever be expected.
This species of punishment is well suited to domestic government. There is no pleasure which a parent or teacher cannot employ as a reward, by permitting its enjoyment, or convert into a source of punishment, by restricting its use.
But though restraints of this nature, that is to say, prohibition of agreeable occupation, do not alone form effective punishments, there is one case in which they may be usefully employed in addition to some other punishment: analogy recommends such employment of them. Has an offence been committed at some public exhibition, it may be well to prohibit the delinquent from attending such public exhibitions for a time.
Among simply restrictive punishments, there is one of which a few examples are found, and which has not received a name: I have called it banishment from the presence. It consists in an obligation imposed upon the offender immediately to leave the place in which he meets with the offended party. The simple presence of the one is a signal for the departure of the other. If Silus, the party injured, enter a ball or concert room, a public assembly or public walk, Titius is bound instantly to leave the same. This punishment appears admirably well suited for cases of personal insult, attacks upon honour, and calumnies; in a word, for all crimes which render the presence of the offender particularly disagreeable and mortifying to the party offended.
In the employment of this punishment, care must be taken that power be not given to the party injured to banish the offender from places in which he is carrying on his habitual operations, or where his presence may be necessary for the discharge of any particular duty. Hence it will, in many cases, be found indispensable to make exceptions in respect of churches, courts of justice, markets, and political assemblies.
Instances in which this mode of punishment has been employed may be found in the decrees of the French Parliaments. It will be sufficient to mention one instance. A man of the name of Aujay having insulted a lady of rank in the most gross manner, among other punishments he was ordered, under pain of corporal punishment, to retire immediately from every place at which this lady might happen to be present.*
In the “Intrigues of the Cabinet” may be seen the account of a quarrel between Madame de Montbazon and the Princess de Condé, in the course of which the former was guilty of very gross insults towards the Princess. The Queen, Anne of Austria, ordered that Madame Montbazon should retire from every place at which the Princess was present.†
Under the English law, there are various instances in which, though not under the name of punishment, restrictions are imposed upon certain classes of persons. Catholics were formerly not allowed to exercise either the profession of the law or that of medicine. Persons refusing to take the sacrament according to the rites of the Church of England, were excluded from all public offices.
Such was the law; the practice was always otherwise: in point of fact, a very large proportion of offices, civil and military, were filled by persons who had never taken the oaths required, but who were protected from the penalties to which they would otherwise have been subjected, by an annual bill of indemnity. In point of right, the security thus afforded was a precarious one, but the uninterrupted practice of nearly a century left little room for apprehension on the part of the persons interested.
The restrictions here in question were not designed to operate as punishments; they were originally imposed with a view of avoiding the danger which, it was apprehended, might be incurred by vesting in the hands of persons of certain religious persuasions, situations of public trust. This, at least, was the avowed political reason: the true cause of the exclusion was, however, religious animosity: they were acts of antipathy.
But these were not the only motives: self-interest had its share in producing the exclusion. Exclude one set of persons, and you confer a benefit on another set: those to whom the right is reserved have to contend with a smaller number of competitors, and their prospect of gain is increased. These restrictive laws, originating in religious hatred, were afterwards maintained by injustice; the persecution, begun by misguided bigotry, was persisted in long after the original inducement had been forgotten, from the most sordid injustice. This is the short history of the persecutions in Ireland. For the benefit of the Protestants, the restrictive laws against the Catholics were kept in force: out of eight millions of inhabitants, a selection was made of one million, on whom were conferred all offices of power or of profit. In this state of things, whilst privileges are, by the continuance of the persecuting laws, placed in the hands of the persecutors, the procuring their abolition may be expected to be attended with no small difficulty. The true motive — the sordid one — will long be concealed under the mask of religion.
Though it may be said that these restrictions are not designed to operate as punishments, and that, in the making of this general law, no particular individual was aimed at, yet there results from it a distinction injurious to the particular class of persons affected by it — necessarily injurious, since the continuance of the law can be justified only by supposing them to be dangerous and disloyal. Such laws form a nucleus around which public prejudice collects; and the legislator, by acquiescing in these transient jealousies, strengthens them, and renders them permanent. They are the remnants of a disease which has been universal, and which, after its cure, has left behind it deep and lasting scars.
Active punishment is that which is inflicted on a man by obliging, or, to use another word, compelling him to act in this or that particular way; to exert this or that particular species of action.
There are two kinds of means by which a man may be compelled to act — physical and moral: the first applies itself to his body; the other to his mind, to his faculty of volition.
The actions which a man may be compelled to perform by physical means are so few, and so unprofitable, both to the patient and to others, as not to be worth taking into the account.
When the instrument is of the moral kind, it is by acting on the volition that it produces its effect. The only instrument that is of a nature to act immediately upon the volition, is an idea; but not every idea — only an idea of pleasure or of pain, as about to ensue from the performance or non-performance of the act which is the object of the volition.
It cannot be an idea of pleasure which can so act upon the volition as to give birth to an act the performance of which shall be a punishment; it must therefore be an idea of pain — of any pain, no matter what, so it be to appearance greater than the pleasure of abstaining from the performance of the penal act.
It is manifest, therefore, that when a punishment of the laborious kind is appointed, another punishment must necessarily be appointed along with it. There are, therefore, in every such case, two different punishments, at least, necessarily concerned. One, which is the only one directly and originally intended, the laborious punishment itself; which may be styled the principal or proper punishment: the other, in case of the former not being submitted to, is called in to its assistance, and may be styled the subsidiary punishment.
This subsidiary punishment may be of any kind that, in point of quantity, is great enough. It ought not, however, to be likewise of the laborious kind; since in that case, as well as in the case of the principal punishment, the will of the patient is necessary to constitute the punishment; and to determine the will, some incident is necessary that does not depend upon the will. It will be necessary, therefore, to employ such punishments as are purely passive, or those restrictive punishments in which the instrument is purely physical.
In regard to this class of punishments, one thing is here to be noted with reference to the instrument. In punishments of this kind, there is a link or two interposed between the instrument and the pain produced by means of it. The instrument first produces the volition; that volition produces a correspondent external act: and it is that act which is the immediate cause by which the pain here in question is produced. This punishment, then, we see, has this remarkable circumstance to distinguish it from other punishments: it is produced immediately by the patient’s own act; it is the patient who, to avoid a greater punishment, inflicts it on himself.
What, then, is the sort of act that is calculated to produce pain in the case of active punishment? It admits not of any description more particular than this: that it is any act whatever that a man has a mind not to do; or, in other words, that on any account whatever is disagreeable to him.
An occupation is a series of acts of the same kind, or tending to the same end. An occupation may be disagreeable on a positive or a negative account; as being productive, in a manner more or less immediate, of some positive pain, or as debarring from the exercise of some more agreeable occupation.
Considered in itself, an occupation may be either painful, pleasurable, or indifferent; but continued beyond a certain time, and without interruption (such is the constitution of man’s nature,) every occupation whatsoever becomes disagreeable: not only so, but such as were in the beginning pleasurable become, by their continuance, more disagreeable than such as were originally indifferent.*
To make the sum of his occupations pleasurable, every man must therefore be at liberty to change from one to another, according to his taste. Hence it is, that any occupation which, for a certain proportion of his time, a man is compelled to exercise, without the liberty of changing to another, becomes disagreeable, and in short becomes a punishment.
Active punishments are as various as the occupations in which, for the various purposes of life, men can have occasion to be employed. These being usually inflicted on all offenders indiscriminately, have been such as all offenders indiscriminately have been physically qualified to undergo. They have consisted commonly in various exertions of muscular force, in which there has been little or no dexterity required in the manner of its application. In general, they have been such as to produce a profit— a collateral benefit in addition to that expected from the punishment as such.
Among the modes of penal labour, a very common one has been that of rowing. This is an exercise performed chiefly by main strength, with very little mixture of skill, and that presently attained. Some vessels, of a bulk large enough to bear any sea, have been made so as to be put in motion in this manner, even without the help of sails. This occupation is more unpleasant in itself than that of an ordinary seaman, as having less variety, besides that the rowers are confined by chains. Such vessels are called gallies, and the rowers galley-slaves. This punishment, though unknown in England, is in use in most of the maritime states of Europe, and particularly in the Mediterranean and Adriatic Seas.
In many countries, malefactors have been employed in various public works, as in the cleansing of harbours† and the streets of towns, in making roads, building and repairing fortifications, and working in mines.
Working in the mines is a punishment employed in Russia and in Hungary. In Hungary, the mines are of quicksilver, and the unwholesome effects of that metal, upon a person who is exposed to the effluvia of it for a length of time, may be one reason for employing criminals in that work, in preference to other persons.
Beating hemp is the most common employment which delinquents are put to in our workhouses — persons of both sexes being subjected to it, without distinction.
From the nature of the service, active punishments may be distinguished into two sorts — specific and indiscriminate. I call it specific, when it consists in the being obliged to do such and such a particular kind or kinds of work: indiscriminate, when it consists in the being obliged to do, not any kind of work in particular, but every kind of work in general, which it shall please such or such a person to prescribe. If such person take all the profit of the work, he is called a master: if the profit is received by some other person, he is called a keeper, or overseer. There are cases of a mixed nature, in which, in certain respects, the servitude is indiscriminate; as to other respects, specific.
At Warsaw, before the partition of Poland, there was a public workhouse, in which convicts were confined in ordinary to particular employments determined by the laws or custom of the place. To this workhouse, however, any person who thought proper might apply, and upon giving security for their forthcomingness, and paying a certain stipulated price for their use, a certain number of the convicts were allotted to him, to be employed in any piece of work for a given time. The services they were employed upon were generally of a rough kind, such as digging a ditch, or paving a court; and a soldier, or a party of soldiers, according to the number of convicts thus employed, was placed over them as a guard.
This custom was also in use in Russia.*
This distinction between specific and indiscriminate servitude, may be illustrated by two examples derived from the English law.
The example of specific punishment is afforded by the statute which directs the employment of certain malefactors on board the hulks. in improving the navigation of the Thames. The statute determines the kind of labour, and the subsidiary punishments by which it is to be enforced.
Indiscriminate servitude is part of the punishment inflicted by our laws under the name of transportation. This servitude is sometimes limited as to its duration, but is without limitation, and without restriction, in respect of the services which may be required.
All these kinds of labour, whether indiscriminate or specific, require, as a necessary accompaniment, that the individual should be upon that spot where the business is to be done. Some import imprisonment; all of them import restraint upon occupations, to wit, upon all occupations incompatible with those in which they constrain a man to employ himself. The degree of this restraint is in a manner indefinite. To lay a man, therefore, under a particular constraint of any kind, is for that time to lay him under an almost universal restraint. The clear value, then, of the pleasure which a man loses by being compelled to any particular occupation, is equal to that of the greatest of all the pleasures which, had it not been for the compulsion, he might have procured for himself.
Upon examining laborious punishment, we shall find it to possess the properties to be wished for in a mode of punishment, in greater perfection, upon the whole, than any other single punishment.
1. It is convertible to profit. Labour is in fact the very source of profit: not that, after all, its power in this way is so extensive as that of pecuniary punishment; for, from the punishment of one man in this way, all the profit that is to be reaped is that which is producible by the labour of one man — a limited, and never very ample quantity. On the other hand, from the punishment of a man in the pecuniary way, it may happen that a profit shall be reaped equal to the labour of many hundred men. The difference, however, in favour of this punishment is, that money is a casual fund; labour one that cannot fail. Indeed, upon the whole, though pecuniary punishment be in particular instances capable of being more profitable, yet considering how large a proportion of mankind, especially of those most liable to commit the most frequent and troublesome kinds of crimes, have no other possession worth estimating than their labour, laborious punishment, if managed as it might and ought to be, may perhaps be deemed the most profitable upon the whole.
2. In point of frugality to the state, laborious punishment, considered by itself, is as little liable to objection as any other can be. I say, considered by itself; for, when coupled with imprisonment, as it can hardly but be in the case of public servitude, it is attended with those expenses to the public which have been noticed under the article of imprisonment. These, however, are not to be charged to the account of the laborious part of the punishment: so that the advantage which laborious punishment has on this score, over simple imprisonment, is quite a clear one. But the former of these two punishments, though separable from the latter in idea, is not separable in practice. Imprisonment may be made to subsist without labour; but forced labour cannot be made to subsist without imprisonment. The advantage, then, which servitude has in this respect, when compared with imprisonment, ceases when compared with any other mode of punishment. However, the profit gained by the one part is enough, under good management, to do more than balance the expense occasioned by the other; so that, upon the whole, it has the advantage, in point of economy, over any other mode of punishment but pecuniary.
3. It seems to stand equally clear of objection in point of equability. As to the restraint it involves, it accommodates itself of itself to each man’s circumstances; for, with respect to each man, it has the effect of restraining him from following those occupations, whatever they may be, which are to him most pleasurable. The positive servitude itself will be apt to sit heavier on one man than another. A man who has not been used to any kind of labour will suffer a good deal more, for some time at least, than one who has been used to labour, though of a different kind or degree from that in question. But this inconvenience may be pretty well obviated by a proper attention to the circumstances of individuals.
4. In point of variability, though it is not perfect throughout, yet it is perfect as far as it goes. In a very low degree it is not capable of subsisting, on account of the infamy it involves, at least in a country governed by European manners. One of the most odious acts of the reign of the Emperor Joseph II. was the sentencing persons of high rank to labour in the public works. The Protestants of France considered the condemnation of their religious ministers to the galleys as a personal insult done to themselves: in this respect, then, it falls short of pecuniary punishment. After that exception, it is capable of being varied to the utmost nicety: being variable as well in respect of intensity, as of duration.
5. In point of exemplarity, it has no peculiar advantage; neither is it subject to any disadvantage. Symbols of suffering it has none belonging to itself; for the circumstance which distinguishes penal servitude from voluntary labour is but an internal circumstance — the idea of compulsion operating on the patient’s mind. The symbols, however, that belong necessarily to the punishment it is naturally combined with — I mean imprisonment — apply to it of course; and the means of characterizing the condition of the patient by some peculiarity of dress are so obvious, that these may be looked upon as symbols naturally connected with it.
6. In point of subserviency to reformation, it is superior to any other punishment, except that mode of imprisonment which we have already insisted on as being peculiarly adapted to this purpose.* Next to the keeping of malefactors asunder, is the finding them employment while they are together. The work they are engaged in confines their attention in some measure: the business of the present moment is enough to occupy their thoughts; they are not stimulated by the impulse of ennui to look out for those topics of discourse which tend, in the manner that has been already explained, to fructify the seeds of corruption in their minds: they are not obliged, in search of aliment for speculation, to send back their memory into the field of past adventures, or to set their invention in quest of future projects. This kind of discipline does not, indeed, like the other, pluck up corruption by the roots; it tends, however, to check the growth of it, and render the propensity to it less powerful. Another circumstance, relative to the nature of this discipline, contributes to check the progress of corruption: to insure the performance of their tasks, it is necessary that the workmen should be under the eye of overseers. The presence of these will naturally be a check to them, and restrain them from engaging in any criminal topics of discourse.
So much for the tendency which this punishment has to keep men from growing worse. It has, besides this, a positive tendency to make them better. And this tendency is more obvious and less liable to accident than the other. There is a tendency, as has been already observed, in man’s nature, to reconcile and accommodate itself to every condition in which it happens to be placed. Such is the force of habit. Few occupations are so irksome that habit will not in time make them sit tolerably easy. If labour, then, even though forced, will in time lose much of its hardship, how much easier will it become when the duration and the mode are in some measure regulated by the will of the labourer himself; when the bitter ideas of infamy and compulsion are removed, and the idea of gain is brought in to sweeten the employment; in a word, when the labourer is left to work at liberty and by choice!
7. This mode of punishment is not altogether destitute of analogy, at least of the verbal kind, to that class of crimes which are the most frequent, and for which an efficacious punishment is most wanted — crimes, I mean, that result from a principle of rapacity or of sloth. The slothful man is constrained to work: the vagabond is confined to a particular spot. The more opposite the restraint thus imposed is to the natural inclination of the patient, the more effectually will he be deterred from indulging his vicious propensities, by the prospect of the punishment that awaits him.
8. With regard to the popularity of this species of punishment in this country, the prejudices of the people are not quite so favourable to it as could be wished. Impatient spirits too easily kindled with the fire of independence, have a word for it, which presents an idea singularly obnoxious to a people who pride themselves so much upon their freedom. This word is slavery. Slavery they say, is a punishment too degrading for an Englishman, even in ruins. This prejudice may be confuted by observing — 1st, That public servitude is a different thing from slavery; 2dly, That if it were not, this would be no reason for dismissing this species of punishment without examination. If, then, upon examination, it is found not to be possessed, in a requisite degree, of the properties to be wished for in a mode of punishment, that, and not the name it happens to be called by, is a reason for its rejection: if it does possess them, it is not any name that can be given to it that can change its nature. But these observations have been more fully insisted on in the chapter on Popularity.
Having thus spoken of this species of punishment in general, let us stop a moment to consider the different kinds of labour which ought to be preferred.
The principal distinction is that of public and private labour.
In public works, the infamy of their publicity tends to render the individuals more depraved, than the habit of working tends to reform them. At Berne there are two classes of forced labourers — the one employed in cleaning the streets, and in other public works; the others employed in the interior of the prison. The latter, when set at liberty, rarely fall again into the hands of justice; the former are no sooner set at liberty than they are guilty of new crimes. This difference is accounted for at Berne, by the indifference to shame they contract in a service, the infamy of which is renewed day by day. It is probable, that after the notoriety of this disgrace, nobody in the country would like to hold communication with, or to employ them.
The rough and painful kinds of labour, which are ordinarily selected for this kind of punishment, do not generally seem suitable. It is difficult to measure the powers of individuals, or to distinguish real from simulated weakness. Subsidiary punishments must be proportioned to the difficulty of the labour, and to the indisposition to perform it. The authority with which an inspector must be armed is liable to great abuses; to rely upon his pity, or even upon his justice, in an employment which hardens the heart, betrays an ignorance of human nature; so soon as it becomes necessary to inflict corporal punishment, the individual who is charged with its execution will become degraded in his own opinion, and he will revenge himself by the abuse of his authority.
Nam nil asperius humili qui surgit in altum.*
Labours which require great efforts ought to be performed by free labourers. The labour obtained by the force of fear is never equal to that which is obtained by the hope of reward. Constrained labour is always inferior to voluntary labour; not only because the slave is interested in concealing his powers, but also because he wants that energy of soul upon which muscular strength so much depends. It would be a curious calculation to estimate how much is lost from this cause in those states where the greater portion of labour is performed by slaves. It would tend greatly to prove that their gradual emancipation would be a noble and beneficial measure.
Labour in mines, except in particular circumstances, is little suitable for malefactors, partly for the reason above given, and partly from the danger of degrading this occupation. The ideas of crime and shame will soon be associated with it; miner and criminal would soon become synonymous: this would not be productive of inconvenience, if the number of malefactors were sufficient for working the mines; but if the contrary is the case, there might be a lack of workmen, from the aversion inspired towards this kind of labour, in those who used to exercise it voluntarily, or who are at liberty to choose respecting it.
Capital punishment may be distinguished into — 1st, simple; 2d, afflictive.
I call it simple, when, if any bodily pain be produced, no greater degree of it is produced than what is necessary to produce death.
I call it afflictive, when any degree of pain is produced more than what is necessary for that purpose.
It will not be necessary, upon the present occasion, to attempt to give an exhaustive view of all the possible modes by which death might be produced without occasioning any, or the least possible quantity of collateral suffering. The task would be almost an endless one: and when accomplished, the only use to which it could be applied would be that of affording an opportunity of selecting out of the catalogue the mode that seemed to possess the desired property in the greatest perfection, which may readily be done without any such process.
The mode in use in England is far from being the best that could be devised. In strangulation by suspension, the weight of the body alone is seldom sufficient to produce an immediate and entire obstruction of respiration. The patient, when left to himself, struggles for some time: hence it is not uncommon for the executioner, in order to shorten his sufferings, to add his own weight to that of the criminal. Strangling by the bowstring may to some, perhaps, appear a severer mode of execution; partly from the prejudice against every usage of despotic governments, partly by the greater activity exerted by the executioners in this case than in the other. The fact, however, is, that it is much less painful than the other, for it is certainly much more expeditious. By this means the force is applied directly in the direction which it must take to effect the obstruction required: in the other case, the force is applied only obliquely; because the force of two men pulling in that manner is greater than the weight of one man.
It is not long, however, even in hanging, before a stop is put to sense; as is well enough known from the accounts of many persons who have survived the operation. This probably is the case a good while before the convulsive strugglings are at an end; so that in appearance the patient suffers more than he does in reality.
With respect to beheading, there are reasons for supposing that the stop put to sensation is not immediate: a portion of sensibility may still be kept up in the spinal marrow a considerable time after it is separated from the brain. It is so, at least, according to all appearance, for different lengths of time in different animals and insects, which continue to move after their heads are separated from their bodies.
To exhaust this part of the subject, it would be necessary to make a catalogue of every various punishment of this description, of which, in practice, there has been any example, adding to them such others as the imagination could be made to supply; but, the ungrateful task performed, of what use would it be? We shall the more willingly refrain from any such labour, as in the more modern European codes these punishments have been altogether discarded; and in those in which they have not been formally abolished, they have long fallen into desuetude. Let us rejoice in these improvements: there are few opportunities in which the philosopher can offer to the governors of the world more just or more honourable congratulations. The importance of the subject, however, will not admit of its being passed over in perfect silence. The system of jurisprudence in question has been too long established; it has had too many apologists, and has had for its supporters too many great names, to allow of its being altogether omitted in a work expressly treating on the subject of punishment. It may besides be of use to show that reason concurs with humanity in the condemning punishments of this description, not merely as being useless, but as producing effects contrary to the intention of the legislator.
If the particular nature of the several species of punishments of this description be examined, as well those that have for a long time past been abolished, such as crucifixion and exposure to wild beasts, as those that have been in use in various parts of modern Europe, such as burning, empaling, tearing to pieces, and breaking on the wheel, it will be found in all of them that the most afflictive part consists in their duration: but this circumstance is not of a nature to produce the beneficial effect that may have been expected from it.
When any particular species of punishment is denounced, that part of it which takes the strongest hold of the imagination is its intensity: its duration makes a much more feeble impression. A slight apparent addition of organical suffering made to the ordinary mode of inflicting the punishment of death, produces a strong effect upon the mind: the idea of the duration of its pains is almost wholly absorbed by the terrors of the principal part of the punishment.
In the legal description of a punishment, its duration is seldom (distinctly) brought to view; it is not mentioned, because in itself it is naturally uncertain: it depends partly upon the physical strength of the patient, and partly upon various other accidental circumstances. To this remarkable and important feature of this species of punishment there is no means by which the attention can be drawn and fixed upon it: upon those who reflect, it produces no impression; upon those who do not reflect, it is altogether lost.
It is true, that the duration of any particular punishment might be fixed by law; the number of hours or minutes might be determined, which should be employed in performing the several prescribed manipulations. This obviously would be a mode of fixing the attention upon this particular feature of the punishment: but even this mode, perfect as it may appear to be, would be found very inadequate to produce the desired effect. By the help of pictures, the intensity of any particular species of punishment may be more or less faithfully represented; but to represent its duration is impossible. The flames, the rack, and all the engines of torture, together with the convulsive throes of the half-expiring and wretched sufferer, may be depicted, but time cannot. A punishment that is to be made to last for two hours will not appear different from a punishment that is to last only a quarter of an hour. The deficiencies of art may, to a certain degree, be compensated for by the imagination: but even then the reality will be left far behind.
It is true, that upon bystanders the duration of the punishment is calculated to make a strong impression; but even upon them, after a certain time, the prolongation loses its effect, and gives place to a feeling directly opposite to that which it is desirable to produce — sentiments of pity and sympathy for the sufferer will succeed, the heart of the spectator will revolt at the scene he witnesses, and the cry of suffering humanity will be heard. The physical suffering will not be confined to the offender: the spectators will partake of it: the most melancholy accidents, swoonings, and dangerous convulsions, will be the accompaniments of these tragic exhibitions. These sanguinary executions, and the terrific accounts that are spread concerning them, are the real causes of that deep-rooted antipathy that is felt against the laws and those by whom they are administered — an antipathy which tends to multiply offences, by favouring the impunity of the guilty.
The only reason that can be given by any government, that persists in continuing to employ a mode of punishing so highly penal, is, that the habitual condition of the people is so wretched that they are incapable of being restrained by a more lenient kind of punishment.
Will it be said that crimes are more frequent in countries in which punishments such as those in question are unknown? The contrary is the fact. It is under such laws that the most ferocious robbers are found: and this is readily accounted for. The fate with which they are threatened hardens them to the feelings of others as well as their own: they are converted into the most bitter enemies, and every barbarity they inflict is considered as a sort of reprisal.
Upon this subject, as upon so many others, Montaigne was far beyond the age in which he lived. All beyond simple death (he says) appears to me to be cruelty. The legislator ought not to expect that the offender that is not to be deterred by the apprehension of death, and by being beheaded and hanged, will be more effectually deterred by the dread of being exposed to a slow fire, or the rack. And I do not know, indeed, but that he may be rendered desperate.*
By the French Constituent Assembly, afflictive punishments were abolished. In the Code Napoléon, beheading is the mode prescribed for inflicting the punishment of death. And it is only in the case of parricide, and of attempts made upon the life of the sovereign, that to the simple punishment of death the characteristic afflictive punishment of cutting off the hand of the offender is added.
In this country, the only crime for which afflictive punishment is in use, is that of high treason. The judgment in high treason consists of seven different operations of the afflictive kind: 1. Dragging at a horse’s tail along the streets from the prison to the place of execution; 2. Hanging by the neck, yet not so as entirely to destroy life; 3. Plucking out and burning of the entrails while the patient is yet alive; 4. Beheading; 5. Quartering; 6. Exposure of the head and quarters in such places as the king directs. This mode of punishment is not now in use. In favour of nobility, the judgment has been usually changed into beheading; in favour of the lower classes, into hanging.
I wish that upon this part of our subject we could end here; but unfortunately there remains to be mentioned an afflictive mode of punishment, most excruciating, and more hideous than any of which we have hitherto spoken, and which is still in use: it is not in Europe that it is employed, but in European colonies — in our own West India Islands.
The delinquent is suspended from a post by means of a hook inserted under his shoulder, or under his breast bone. In this manner the sufferer is prevented from doing anything to assist himself, and all persons are prohibited, under severe penalties, from relieving him. He remains in this situation, exposed to the scorching heat of the day, where the sun is almost vertical, and the atmosphere almost without a cloud, and to the chilling dews of the night; his lacerated flesh attracts a multitude of insects, which increase his torments, and under the fever produced by these complicated sufferings, joined to hunger and thirst, all raging in the most intense degree, he gradually expires.
When we reflect on this complication of sufferings, their intensity surpasses everything that the imagination can figure to itself, and consider that their duration continues not merely for many hours, but for many days, it will be found to be by far the most severe punishment ever yet devised by the ingenuity of man.
The persons to whom this punishment has been hitherto appropriated are negro slaves, and their crime, what is termed rebellion, because they are the weakest, but which, if they were the strongest, would be called an act of self-defence. The constitutions of these people are, to their misfortune, in certain respects so much harder than ours, that many of them are said to have lingered ten or twelve days under these frightful torments.
It is said that this punishment is nothing more than is necessary for restraining that people, and keeping them in their servile state; for that the general tenor of their lives is such a scene of misery, that simple death would be generally a relief, and a death less excruciating would scarce operate as a restraint.
This may perhaps be true. It is certain that a punishment, to have any effect upon man, must bear a certain ratio to the mean state of his way of living, in respect of sufferings and enjoyments. But one cannot well help observing where this leads. The number of slaves in these colonies is to that of freemen as about six to one; there may be about three hundred thousand blacks and fifty thousand whites. Here there are three hundred thousand persons kept in a way of life that upon the whole appears to them worse than death, and this for the sake of keeping fifty thousand persons in a way of life not remarkably more happy than that which, upon an average, the same number of persons would be in where there was no slavery; on the contrary, it is found that men in general are fond, when they have the opportunity, of changing that scene for this. On the other hand, it is not to be disputed that sugar and coffee, and other delicacies, which are the growth of those islands, add considerably to the enjoyments of the people here in Europe; but taking all these circumstances into consideration, if they are only to be obtained by keeping three hundred thousand men in a state in which they cannot be kept but by the terror of such executions: are there any considerations of luxury or enjoyment that can counterbalance such evils?
At the same time, what admits of very little doubt is, that the defenders of these punishments, in order to justify them, exaggerate the miseries of slavery, and the little value set by the slaves upon life. If they were really reduced to such a state of misery as to render necessary laws so atrocious, even such laws would be insufficient for their restraint; having nothing to lose, they would be regardless of all consequences; they would be engaged in perpetual insurrections and massacres. The state of desperation to which they would be reduced would daily produce the most frightful disorders. But if existence is not to them a matter of indifference, the only pretence that there is in favour of these laws falls to the ground. Let the colonists reflect upon this: if such a code be necessary, the colonies are a disgrace and an outrage on humanity: if not necessary, these laws are a disgrace to the colonists themselves.
In making this examination, the following plan will be pursued. The advantageous properties of capital punishment will in the first place be considered: we shall afterwards proceed to examine its disadvantageous properties. We shall, in the last place, consider the collateral ill effects resulting from this mode of punishment: effects more remote and less obvious, but sometimes more important, than those which are more immediate and striking.
The task thus undertaken would be an extremely ungrateful and barren one, were it not that the course of the examination will lead us to make a comparison between this and other modes of punishment, and thus to ascertain which is entitled to the preference. On the subject of punishment, the same rule ought, in this respect, to be observed as on the subject of taxes. To complain of any particular tax as being an injudicious one, is to sow the seeds of discontent, and nothing more: to be really useful, this in itself mischievous discovery, should be accompanied by the indication of another tax which will prove equally productive, with less inconvenience.
1. The most remarkable feature in the punishment of death, and that which it possesses in the greatest perfection, is the taking from the offender the power of doing further injury: whatever is apprehended, either from the force or cunning of the criminal, at once vanishes away; society is in a prompt and complete manner delivered from all alarm.
2. It is analogous to the offence in the case of murder; but there its analogy terminates.
3. It is popular in respect of that same crime, and in that alone.
4. It is exemplary in a higher degree, perhaps, than any other species of punishment, and in countries in which it is sparingly employed, an execution makes a deep and lasting impression.
It was the opinion of Beccaria, that the impression made by any particular punishment was in proportion to its duration, and not to its intensity. “Our sensibility,” he observes, “is more readily and permanently affected by slight but reiterated attacks, than by a violent but transient affection. For this reason, the putting an offender to death forms a less effectual check to the commission of crimes, than the spectacle of a man kept in a state of confinement, and employed in hard labour, to make some reparation by his exertions for the injury he has inflicted on society.”*
Notwithstanding such respectable authority, I am apt to think the contrary is the case. This opinion is founded principally on two observations: 1. Death in general is regarded by most men as the greatest of all evils, and they are willing to submit to any other suffering whatever in order to avoid it. 2. Death, considered as a punishment, is almost universally reckoned too severe, and men plead, as a measure of mercy, for the substitution of any other punishment in lieu of it. In respect to duration, the suffering is next to nothing. It must therefore, I think, be some confused and exaggerated notion of the intensity of the pain of death, especially of a violent death, that renders the idea of it so formidable. It is not without reason, however, that, with respect to the higher class of offenders, M. Beccaria considers a punishment of the laborious kind, moderate we must suppose in its degree, will make a stronger impression than the most excruciating kind of death that can be devised. But for the generality of men, among those who are attached to life by the ties of reputation, affection, enjoyment, hope, capital punishment appears to be more exemplary than any other.
5. Though the apparent suffering in the punishment of death is at the highest pitch, the real suffering is perhaps less than in the larger portion of afflictive punishments. In addition to their duration, they leave after them a train of evils which injure the constitution of the patient, and render the remainder of his life a complication of sufferings. In the punishment of death, the suffering is momentary: it is a negation of all sensation.
When the last moment only is considered, penal death is often more gentle than natural death, and, so far from being an evil, presents a balance of good. The suffering endured must be sought for in some anterior period. The suffering consists in apprehension. This apprehension commences from the moment the delinquent has committed the crime; it is redoubled when he is apprehended; it increases at every stage of the process which renders his condemnation more certain, and is at its height in the interval between sentence and execution.
The more solid argument in favour of the punishment of death, results from the combined force of the above considerations. On the one hand, it is, to men in general, of all punishment, of the greatest apparent magnitude, the most impressive, and the most exemplary; and on the other hand, to the wretched class of beings that furnish the most atrocious criminals, it is less rigorous than it appears to be. It puts a speedy termination to an uneasy, unhappy, dishonoured existence, stript of all true worth:—Heu! Heu! quam male est extra legem viventibus.†
1. The punishment of death is not convertible to profit: it cannot be applied to the purpose of compensation. In so far as compensation might be derived from the labour of the delinquent, the very source of the compensation is destroyed.
2. In point of frugality, it is pre-eminently defective. So far from being convertible to profit, to the community it produces a certain loss, both in point of wealth and strength. In point of wealth, a man chosen at random is worth to the public that portion of the whole annual income of the state which results from its division by the number of persons of which it consists. The same mode of calculation will determine the loss in respect of strength. But the value of a man who has been proved guilty of some one or other of those crimes for which capital punishment is denounced, is not equal to that of a man taken at random. Of those by whom a punishment of this sort is incurred, nine out of ten have divested themselves of all habits of regular industry: they are the drones of the hive; and with respect to them, death is therefore not an ineligible mode of punishment, except in comparison with confinement and hard labour, by which there is a chance of their being reformed, and rendered of some use to society.
3. Equability is another point, and that a most important one, in which this punishment is eminently deficient. To a person taken at random, it is upon an average a very heavy punishment, though still subject to considerable variation; but to a person taken out of the class of first-rate delinquents, it is liable to still greater variation: to some it is as great as to a person taken at random; but to many it is next to nothing.
Death is the absence of all pleasures indeed, but at the same time of all pains. When a person feels himself under temptation to commit a crime punishable with death, his determination to commit it, or not to commit it, is the result of the following calculation: He ranges on one side the clear portion of happiness he thinks himself likely to enjoy in case of his abstaining: on the other, he places the clear happiness he thinks himself likely to enjoy in case of his committing the crime, taking into the account the chance there appears to him to be, that the punishment threatened will abridge the duration of that happiness.
Now then, if in the former case there appear to be no clear happiness likely to accrue to him, much more if there appear to be a clear portion of unhappiness; in other words, if the clear portion of happiness likely to befal him appear to be equal to 0,* or much more if it appear to be negative, the pleasure that constitutes the profit of the crime will act upon him with a force that has nothing to oppose it: the probability of seeing it brought to an abrupt period by death will subtract more or less from the balance; but at any rate there will be a balance.
Now this is always the case with a multitude of malefactors. Rendered averse to labour by natural indolence or disuse, or hurried away by the tide of some impetuous passion, they do look upon the pleasures to be obtained by honest industry as not worth living for, when put in competition with the pains; or they look upon life as not worth keeping, without some pleasure or pleasures which, to persons in their situation, are not attainable but by a crime.
I do not say that this calculation is made with all the formality with which I have represented it: I do not say that in casting up the sum of pains on the one side, and pleasures on the other, exact care is always used to take every item into the account. But however, well or ill, the calculation is made; else a man could not act as he is supposed to do.
Now then, in all these cases, which unhappily are but too frequent, it is plain the punishment of death can be of no use.
It may be said, no more would any other punishment; for any other punishment, to answer its purpose, must have the effect of deterring or otherwise disabling the person in question from committing the like crimes in future. If, then, he is thus deterred or disabled, he is reduced to a situation in which, by the supposition, death was to him an event desirable upon the whole. Being, then, in his power, he will produce it.
The conclusion, however, is not necessary. There are several reasons why the same impulse which is strong enough to dispose a man to meet death at the hands of justice should not be strong enough to dispose him to bring on himself that event with his own hand.
In the first place, the infliction of it as a punishment is an event by no means certain. It is in itself uncertain; and the passion he is supposed to be influenced by, withdrawing his attention from the chances that are in favour of its happening, makes it look still more uncertain.
In the next place, although it were certain, it is at any rate distant: and the mortification he undergoes, from the not possessing the object of his passion, is present.
Thirdly, death is attended with much more pain when a man has to inflict it on himself with his own hand, than when all he does is simply to put himself in a situation in which it will be inflicted on him by the hands of another, or by the operation of some physical cause. To put himself in such a situation, requires but a single and sudden volition, and perhaps but a single act in consequence, during the performance of which he may keep his eyes shut, as it were, against the prospect of the pain to which he is about to subject himself: the moment of its arrival is at an uncertain distance. The reverse is the case where a man is to die by his own hand. His resolution must be supported during the whole period of time that is necessary to bring about the event. The manner is foreseen, and the time immediate. It may be necessary, that even after a part of the pain has been incurred, the resolution should go on and support itself, while it prompts him to add further pain before the purpose is accomplished.
Accordingly, when people are resolved upon death, it is common for them, when they have an opportunity, to choose to die rather by the hand of another than by their own. Thus Saul chose to die by the hand of his armour-bearer; Tiberius Gracchus by that of his freeman; so again the Emperor Nero by one of his minions.
Fourthly, when a man is prompted to seek relief in death, it is not so much by the sudden vehemence of some tempestuous passion, as by a close persuasion that the miseries of his life are likely to be greater than the enjoyments; and, in consequence, when the resolution is once taken, to rest satisfied without carrying it immediately into effect; for there is not a more universal principle of human conduct, than that which leads a man to satisfy himself for awhile with the power, without proceeding immediately, perhaps without proceeding ever, to the act. It is the same feeling which so often turns the voluptuous man to a miser.
Now this is likely enough to be the condition of those who, instead of death, may have been sentenced to another punishment. They defer the execution of their design from hour to hour — sometimes for want of means, sometimes for want of inclination; till at last some incident happens that puts in their heads a train of thought which in the end diverts them from their resolution. In the mental, as well as in the material part of the human frame, there is happily a strong disposition to accommodate itself by degrees to the pressure of forced and calamitous situations. When a great artery is cut or otherwise disabled, the circumjacent smaller ones will stretch and take upon themselves the whole duty of conveying to the part affected the necessary supplies. Loss of sight improves the faculty of feeling; a left hand learns to perform the offices of the right, or even the feet, of both; an inferior part of the alimentary canal has learned to perform the office, and even to assume the texture of the stomach.
The mind is endowed with no less elasticity and docility, in accommodating itself to situations which at first sight appeared intolerable. In all sufferings there are occasional remissions, which, in virtue of the contrast, are converted into pleasure. How many instances are there of men who, having suddenly fallen from the very pinnacle of grandeur into the gulphs of misery, have, when the old sources of enjoyment were irrecoverably dry, gradually detached their minds from all recollections of their customary enjoyments, and created for themselves fresh sources of happiness. The Comte de Lauzun’s spider, the straw-works of the Bicêtre, the skilfully wrought pieces of carved work made by the French prisoners, not to mention others, are sufficient illustrations of this remark.
Variability is a point of excellence in which the punishment of death is more deficient than in any other. It subsists only in one degree; the quantity of evil can neither be increased nor lessened. It is peculiarly defective in the case of the greater part of the most malignant and formidable species of malefactors — that of professed robbers and highwaymen.*
4. The punishment of death†is not remissible. Other species of afflictive punishments, it is true, are exposed to the same objection; but though irremissible they are not irreparable: for death there is no remedy.
No man, how little soever he may have attended to criminal procedure, but must have been struck at the very slight circumstances upon which the life of a man may depend; and who does not recollect instances in which a man has been indebted for his safety to the occurrence of some unlooked-for accident, which has brought his innocence to light? The risk incurred is doubtless greater under some systems of jurisprudence than under others. Those which allow the torture to supply the insufficiency of evidence derived from other sources; those in which the proceedings are not public, are, if the expression may be used, surrounded with precipices. But it may be said, is there, or could there be devised, any system of penal procedure which could insure the judge from being misled by false evidence or the fallibility of his own judgment? No; absolute security in this branch of science is a point which, though it can never be attained, may be much more nearly approached than it has hitherto been. Judges will continue fallible; witnesses to depose falsehood, or to be deceived; whatever number may depose to the same fact, the existence of that fact is not rendered certain: as to circumstantial evidence, that which is deemed incapable of explanation, but by supposing the existence of the crime, may be the effect of chance, or of arrangements made with the view of producing deception. The only sort of evidence that appears entitled to perfect conviction, is the voluntary confession of the crime by the party accused; but this is not frequently made, and does not produce absolute certainty, since instances have not been wanting, as in the case of witchcraft, in which individuals have acknowledged themselves guilty, when the pretended crime was impossible.
These are not purely imaginary apprehensions, drawn from the region of possibility: the criminal records of every country afford various instances of these melancholy errors; and these instances, which, by the concurrence of a number of extraordinary events, have attained notoriety, cannot fail to excite a suspicion that, though unknown, many other innocent victims may have perished.
It must not be forgotten either, that the cases in which the word evidence is most apt to be employed, are not unfrequently those in which the testimony adduced is exposed to most suspicion. When the pretended crime is among the number of those that produce antipathy towards the offender, or which excite against him a party feeling, the witnesses almost unconsciously act as accusers. They are the echoes of the public clamour; the fermentation goes on increasing, and all doubt is laid aside. It was a concurrence of such circumstances which seduced first the people, and then the judges, in the melancholy affair of Calas.
These melancholy cases, in which the most violent presumptions, which fall little short of absolute certainty, are accumulated against an individual whose innocence is afterwards recognised, carry with them their own excuse: they are the cruel effects of chance, and do not altogether destroy public confidence. To produce any such effect, we must be able to detect in such erroneous decisions proofs of temerity, ignorance, and precipitation, of an obstinate and blind adherence to vicious forms, and of those determined prejudices which the very situation of Judge is apt to generate. A judge, whose business it is to deal with human nature in its worst forms, having daily before his eyes the false pretences and mendacity to which the guilty have recourse, perpetually contriving expedients for unvailing imposture, gradually ceases to believe in the innocence of those accused, and by anticipation expects to find a criminal using all his arts to deceive him. That it is the character of all judges to be actuated by these prejudices, I am far from thinking; but when the propriety of arming men with the power of indicting the punishment of death is the question under consideration, it ought not to be forgotten, before putting into their hands the fatal weapon, that they are not exempted from the weaknesses of humanity; that their wisdom is not increased, neither are they rendered infallible, by thus arming them.
The danger attending the use of capital punishment appears in a more striking point of view when we reflect on the use that may be made of it by men in power, to gratify their passions, by means of a judge easily intimidated or corrupted. In such cases, the iniquity covered with the robe of justice may escape, if not all suspicion, at least the possibility of proof. Capital punishment, too, affords to the prosecutor as well as to the judge, an advantage that in all other modes is wanting — I mean greater security against detection — by stifling by death all danger of discovery arising from the delinquent, at least: while he lives, to whatever state of misery he may be reduced, the oppressed may meet with some fortunate event by which his innocence may be proved, and he may become his own avenger. A judicial assassination, justified in the eyes of the public by a false accusation, with almost complete certainty assures the triumph of those who have been guilty of it. In a crime of an inferior degree, they would have had everything to fear; but the death of the victim seals their security.
If we reflect on those very unfrequent occurrences, but which may at any time recur — those periods at which the government degenerates into anarchy and tyranny, we shall find that the punishment of death, established by law, is a weapon ready prepared, which is more susceptible of abuse than any other mode of punishment. A tyrannical government, it is true, may always re-establish this mode of punishment after it has been abolished by the legislature. But the introducing what would then become an innovation, would not be unattended with difficulty: the violence of which it was to be the precursor would be too much exposed, the tocsin would be sounded. Tyranny is much more at its ease when exercised under the sanction of law, when there is no appearance of any departure from the ordinary course of justice, and when it finds the minds of people already reconciled and accustomed to this mode of punishment. The Duke of Alba, ferocious as he was, would not have dared to sacrifice so many thousand victims in the Low Countries, if it had not been a commonly received opinion that heresy was a crime which merited the punishment of death. Biren, not less cruel than the Duke of Alba — Biren, who peopled the deserts of Siberia with exiles, caused them previously to be mutilated, that being the most severe punishment that was in use in that country — he very rarely ventured to punish them capitally, because capital punishment was not in use: so little do even the most arbitrary despots dare to violate established customs. Hence we may draw a strong reason for seizing upon periods of tranquillity for destroying these dangerous instruments, which, though no longer dreaded when covered with rust, are with such facility brought into use again, when passion invites their employment.
The objection arising from the irremissibility of the punishment of death applies to all cases, and can be removed only by its complete abolition. Upon this occasion it is necessary to bear in mind that there are two branches of security, for each of which it is necessary to make provision. Security against the errors and corruptions in judicial procedure, and security against crimes. If the latter were not to be attained but at the expense of the former, there would be no room for hesitation. With respect to crimes, from whom is it that the terror is felt? From every person that is capable of committing a crime; that is to say, from all men, and at all times. With respect to the errors and corruptions of justice, these are the exceptions, the accidental and rare occurrences.
This punishment is far from being popular; and it becomes less and less so every day, in proportion as mankind become more enlightened, and their manners more softened. The people flock in crowds to an execution; but this eagerness, which at first might appear so disgraceful to humanity, does not proceed from the pleasure expected from the sight of men in the agonies of death: it arises from the pleasure of having the passions strongly excited by a tragic scene. There is, however, one case in which it does seem to be popular, and that in a very high degree; I mean the case of murder. The attachment seems to be grounded partly on the fondness for analogy, partly on the principle of vengeance, and partly, perhaps, by the fear which the character of the criminal is apt to inspire. Blood, it is said, will have blood, and the imagination is flattered with the notion of the similarity of the suffering, produced by the punishment, with that inflicted by the criminal.
In other cases, the punishment of death is unpopular; and this unpopularity produces different dispositions, all equally contrary to the ends of justice: a disposition on the part of the individuals injured not to prosecute the offenders, for fear of bringing them to the scaffold; a disposition on the part of the public to favour their escape; a disposition on the part of the witnesses to withhold their testimony, or to weaken its effect; a disposition on the part of the judges to allow of a merciful prevarication in favour of the accused; and all these anti-legal dispositions render the execution of the laws uncertain, without referring to that loss of respect which follows upon its being considered meritorious to prevent their execution.
The punishment of death, it has been observed, possesses four desirable properties:—
1. It is in one case analogous to the offence.
2. In that same case it is popular.
3. It is in the highest degree efficacious in preventing further mischief from the same source.
4. It is exemplary, producing a more lively impression than any other mode of punishment.
The two first of these properties exist in the case of capital punishment when applied to murder; and with reference to that species of offence alone, are they sufficient reasons for presevering in its use? Certainly not: each of them, separately considered, is of very little importance. Analogy is a very good recommendation, but not a good justification. If in other respects any particular mode of punishment be eligible, analogy is an additional advantage: if in other respects it be ineligible, analogy alone is not a sufficient recommendation: the value of this property amounts to very little, because, even in the case of murder, other punishments may be devised, the analogy of which will be sufficiently striking.
In respect also of popularity, the same observations apply to this mode of punishment. Every other mode of punishment that is seen to be equally or more efficacious will become equally or more popular. The approbation of the multitude will naturally be in proportion to the efficacy of the punishment.
The third reason, that it is efficacious in preventing further mischief from the same source, is somewhat more specious, but not better founded. It has been asserted, that in the crime of murder it is absolutely necessary; that there is no other means of averting the danger threatened from that class of malefactors. This assertion is, however, extremely exaggerated: its groundlessness may be seen in the case of the most dangerous species of homicide — assassination for lucre, a crime proceeding from a disposition which puts indiscriminately the life of every man into immediate jeopardy. Even these malefactors are not so dangerous nor so difficult to manage as madmen; because the former will commit homicide only at the time that there is something to be gained by it, and that it can be perpetrated with a probability of safety. The mischief to be apprehended from madmen is not narrowed by either of these circumstances. Yet it is never thought necessary that madmen should be put to death. They are not put to death: they are only kept in confinement; and that confinement is found effectually to answer the purpose.
In fine, I can see but one case in which it can be necessary, and that only occasionally. In the case alleged for this purpose by M. Beccaria — the case of rebellion, or other offence against government of a rebellious tendency, when by destroying the chief you may destroy the faction, where discontent has spread itself widely through a community, it may happen that imprisonment will not answer the purpose of safe custody. The keepers may be won over to the insurgent party, or if not won over, they may be overpowered. They may be won over by considerations of a conscientious nature, which is a danger almost peculiar to this case; or they may be won over by considerations of a lucrative nature, which danger is greater in this case than in any other, since party projects may be carried on by a common purse.
What, however, ought not to be lost sight of in the case of offences of a political nature is, that if by the punishment of death one dangerous enemy is exterminated, the consequence of it may be the making an opening for a more formidable successor. “Look,” said the executioner, to an aged Irishman, showing him the bleeding head of a man just executed for rebellion —“look at the head of your son.” “My son,” replied he, “has more than one head.” It would be well for the legislator, before he appoints capital punishment, even in this case, to reflect on this instructive lesson.
The fourth reason is the strongest. The punishment of death is exemplary, pre-eminently exemplary: no other punishment makes so strong an impression.
This assertion, as has been already noticed, is true with respect to the majority of mankind: it is not true with respect to the greatest criminals.
It appears, however, to me, that the contemplation of perpetual imprisonment, accompanied with hard labour and occasional solitary confinement, would produce a deeper impression on the minds of persons in whom it is more eminently desirable that that impression should be produced, than even death itself. We have already observed, that to them life does not offer the same attractions as it does to persons of innocent and industrious habits. Their very profession leads them continually to put their existence in jeopardy; and intemperance, which is almost natural to them, inflames their brutal and uncalculating courage. All the circumstances that render death less formidable to them, render laborious restraint proportionably more irksome. The more their habitual state of existence is independent, wandering, and hostile to steady and laborious industry, the more they will be terrified by a state of passive submission and of laborious confinement, a mode of life in the highest degree repugnant to their natural inclinations.
Giving to each of these circumstances its due weight, the result appears to be, that the prodigal use made by legislators of the punishment of death has been occasioned more by erroneous judgments [arising from the situation in which they are placed with respect to the other classes of the community] than from any blameable cause. Those who make laws belong to the highest classes of the community, among whom death is considered as a great evil, and an ignominious death as the greatest of evils. Let it be confined to that class, if it were practicable, the effect aimed at might be produced; but it shows a total want of judgment and reflection to apply it to a degraded and wretched class of men, who do not set the same value upon life, to whom indigence and hard labour is more formidable than death, and the habitual infamy of whose lives renders them insensible to the infamy of the punishment.
If, in spite of these reasons, which appear to be conclusive, it be determined to preserve the punishment of death, in consideration of the effects it produces in terrorum, it ought to be confined to offences which in the highest degree shock the public feeling — for murders, accompanied with circumstances of aggravation, and particularly when their effect may be the destruction of numbers; and in these cases, expedients, by which it may be made to assume the most tragic appearance, may be safely resorted to, in the greatest extent possible, without having recourse to complicated torments.
The punishment of death, when applied to the punishment of offences in opposition to public opinion, far from preventing offences, tends to increase them by the hope of impunity. This proposition may appear paradoxical; but the paradox vanishes when we consider the different effects produced by the unpopularity of the punishment of death. In the first place, it relaxes prosecution in criminal matters; and in the next place, foments three vicious principles:— 1. It makes perjury appear meritorious, by founding it on humanity; 2. It produces contempt for the laws, by rendering it notorious that they are not executed; 3. It renders convictions arbitrary, and pardons necessary.
The relaxation of criminal procedure results from a series of transgressions on the part of the different public functionaries, whose concurrence is necessary to the execution of the laws: each one alters the part allotted to him, that he may weaken or break the legal chain by which he is bound, and substitute his own will for that of the legislator;* but all these causes of uncertainty in criminal procedure are so many encouragements to malefactors.
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