We have before observed, that a penal act is not simple in its effects, does not produce one single evil; that it produces many masses of evil at once. A punishment, considered as an act, may be simple — considered in its effects, complex.
A man is imprisoned: here is a simple punishment, as respects the act on the part of the judge, but as respects the individual, the evils resulting from it may be very various, affecting, in different ways, his fortune, his person, his reputation, and his condition in life.
A simple punishment is that which is produced by a single act of punishment; a compound punishment is that which requires more than one operation. The punishment for an offence may include imprisonment, a fine, a mark of infamy, &c.: if all these are announced by the law — if each of these punishments is expressed by a clear and familiar term, the punishment, though compound or complex, may be a good one.
Improper complex punishments are those of which the integral parts are not known, those which include evils that the law does not announce, which are only expressed by obscure and enigmatical names, which do not exhibit their penal nature in clear characters, and which are only understood by lawyers: of this kind are transportation, felony with and without benefit of clergy, præmunire, outlawry, excommunication, incompetency as a witness, and many others.
Everything which is uncertain, everything which is obscure, offends against the first condition in framing a good law.
The inconveniences attached to complex punishments, when thus defined, are very great, but they may be explained in a few words: the legislator knows not what he does; the subject knows not what is meant by the punishment threatened. It becomes impossible for the legislator to do what is proper in each case; he therefore does either too much or too little: every obscure expression veils from his eyes the nature of the punishment or punishments he employs; he strikes blindfolded, and scatters suffering at hazard. The jury and the judges who witness the inconveniences of the law in each particular case, allow themselves to employ all possible means to avoid them; they usurp the authority of the legislator, and perjury becomes the habitual palliative of his injustice or improvidence.
If the law is executed, what happens? — the judge, in inflicting one useful punishment, is obliged to inflict a multitude of useless punishments — punishments of which the offenders had only an imperfect idea, which produce mischief in pure waste: oftentimes the mischief spreads over persons who are entire strangers to the offence, and the consequences are such, that the legislator would have trembled had he foreseen them.
We have already spoken of incompetency as a witness: we shall now direct our attention to the other punishments above named.
Among the advantages which the North Americans have derived from their independence, there is one which cannot fail to strike every man who has any feeling of national pride: it has saved them from the humiliating obligation of receiving every year an importation of the refuse of the British population; of serving as an outlet for the prisons of the mother country, whereby the morals of their rising people were exposed to injury, by a mixture with all possible kinds of depravity. North America, after having been exposed to this scourge for upwards of a century, no longer serves as a receptacle for these living nuisances: but can any limits be assigned to the moral effects that may have been produced by this early inoculation of vice?
I shall have occasion again to recur to this important topic, when, in speaking of the colony at New South Wales, and of the population now forming there, I shall point out the inconveniences which result from sending thither these periodical harvests of malefactors.
The present object is to show that the system of transportation, as now managed, is essentially different from what it was under the old system, and that, with the change of scene, the punishment itself has in many respects been materially altered: in some respects for the better; in many others for the worse.
Under the old system of transportation to America, power being given for that purpose by Parliament, the convicts destined for transportation were made over by the government to a contractor, who, for the profit to be made by selling their services for the penal term to a master in America, engaged to convey them to the scene of banishment. To banishment — the banishment prescribed by law — was thus added, in all cases in which the individuals were not able to purchase their liberty, the ulterior and perfectly distinct punishment of bondage. But wherever it happened, that, through the medium of a friend or otherwise, the convict could bid more for himself than would be given for his services by a stranger, he was set at liberty in the first port at which he arrived. The punishment was limited, as respected him, to simple banishment: the individual was therefore punished with bondage, rather for his poverty than for the crime he had committed. Thus the most culpable — those who had committed great crimes, and who had contrived to secure the profits of their crimes, were least punished. The minor thieves, novices, and inexperienced malefactors, who had not secured their plunder, bore the double chain of banishment and slavery.
Under the system of transportation to Botany Bay, the whole expense is borne by the government. The governor of the colony always retains an authority over the convicts, and acts as their goaler; he provides them with habitations, employment, and food; they are placed under his sole controul; he may employ them either in public or private works. Hard labour, with some few exceptions, is the lot of all; exemption from it cannot be purchased by money. In this respect, the inequality above spoken of has been greatly corrected, and the punishment having been rendered more certain, is consequently more efficacious.
Transportation to America was attended with another inconvenience: that country presented too many facilities for the return of the convicts. A great number of them availed themselves of these opportunities, and returned to the mother country to exercise their fatal talents with superior skill — some when their terms of banishment had expired, many before that period had arrived. As to the latter, the facility of return was one among the disadvantages attending transportation to America: as to the others, in the eyes at least of those who conceive that the commission of one offence ought not to operate as a forfeiture of all title to justice, this facility of return could not fail to appear as an advantage. On the other hand, the distance of Botany Bay afforded a better security against illegal returns: being situated at the antipodes of Britain, with scarcely any existing commerce when first selected, the return of any of the convict population was an event hardly to be looked for. Whilst, however, a security thus effectual was provided against the return of convicts whose terms had not expired, an equally effectual barrier was raised against the return of those whose terms had expired; and thus, at one stroke, all inferior degrees of this punishment were, in nearly all cases, indiscriminately converted into the highest. Whether such an effect was intended or not, is is needless to inquire; but that such was the effect, is indisputable.
Transportation, under the present system, is a complex punishment, composed, first, of banishment, and second, of hard labour:— banishment, a punishment eminently defective, particularly in respect of its inequality; hard labour, a punishment in itself eminently salutary, but, when connected with banishment, and, as in this case, carried on under every possible disadvantage, failing altogether to produce any beneficial effects.
In order to show how completely adverse the system of transportation to New South Wales is to the attainment of the several objects or ends of penal justice, it will be necessary shortly to recapitulate what those ends or objects are, and then to show, from the accounts which have been furnished respecting the state of the convict population of that colony, in what degree these ends or objects have been respectively fulfilled.
1. The main object or end of penal justice is example— prevention of similar offences, on the part of individuals at large, by the influence exerted by the punishment on the minds of bystanders, from the apprehension of similar suffering in case of similar delinquency. Of this property, transportation is almost destitute: this is its radical and incurable defect. The punishment is not seen by — it is hidden, abstracted from, the eyes of those upon whom it is desirable it should operate in the way of example. Punishments which are inflicted at the antipodes — in a country of which so little is known, and with which communication was so rare, could make only a transient impression upon the minds of people in this country. “The people,” says an author who had deeply considered the effects of imagination, “the mass of the people make no distinction between an interval of a thousand years and of a thousand miles.” It has been already said, but cannot be too often repeated and enforced, that the utility and effect of example is not determined by the amount of suffering the delinquent is made to endure, but by the amount of apparent suffering he undergoes. It is that part of his suffering which strikes the eyes of beholders, and which fastens on their imagination, which leaves an impression strong enough to counteract the temptation to offend. However deficient they may be in respect of exemplarity, the sufferings inflicted on persons condemned to this mode of punishment are not the less substantial and severe: confinement for an unlimited time in prisons or in the bulks — a voyage of from six to eight months, itself a state of constant sufferance from the crowded state of the ships and the necessary restraint to which convicts are subjected — the dangers of the sea — exposure to contagious diseases, which are often attended with the most fatal consequences. Such are some of the concomitants of the system of punishment in question, which serves as the introduction to a state of banishment and bondage in a distant region, in which the means of subsistence have been extremely precarious, and where, by delay in the arrival of a vessel, the whole colony has been repeatedly exposed to all the horrors of famine. It is scarcely possible to conceive a situation more deplorable than that to which the convicts thus transported have been exposed. Constant hard labour, and exposure to depredation, (if they have anything of which they can be plundered,) and occasional starvation, without the means of mending their condition while they remain there, without the hope of ever leaving it: such has been the condition to which persons banished to this colony, for periods that in pretence were limited, have found themselves exposed. Here, then, is punishment, partly intentional, partly accidental, dealt out with the most lavish profuseness; but compared with its effects in the way of example, it may be considered as so much gratuitous suffering, inflicted without end or object. A sea of oblivion flows between that country and this. It is not the hundredth, nor even the thousandth part of this mass of punishment, that makes any impression on the people of the mother country — upon that class of people who are most likely to commit offences, who neither read nor reflect, and whose feelings are capable of being excited, not by the description, but by the exhibition of sufferings. The system of transportation has, moreover, this additional disadvantage, which not merely neutralizes its effects in the discouragement of offences, but renders it, in many cases, an instrument of positive encouragement to the commission of offences: A variety of pleasing illusions will, in the minds of many persons, be connected with the idea of transportation, which will not merely supplant all painful reflections, but will be replaced by the most agreeable anticipations.* It requires but a very superficial knowledge of mankind in general, and more especially of the youth of this country, not to perceive that a distant voyage, a new country, numerous associates, hope of future independence, and agreeable adventures, will be sufficiently captivating to withdraw the mind from the contemplation of the painful part of the picture, and to give uncontrouled sway to ideas of licentious fascinating enjoyment.
II. The second end or object of punishment is reformation— prevention of similar offences on the part of the particular individual punished in each instance, by taking from him the will to commit the like in future. Under this head, what has been done in the colony of New South Wales? By referring to facts, we shall find, not only that in this respect it has been hitherto radically defective, but that, from the nature of things, it ever must remain so.
Connected with the system of transportation to the American colonies, there were two circumstances highly conducive to the reformation of the convicts transported: their admission, upon landing in the country, into families composed of men of thrift and probity; their separation from each other.
When a master in America had engaged a convict in his service, all the members of the family became interested in watching his behaviour. Working under the eye of his master, he had neither the inducements nor the means of giving loose to his vicious propensities. The state of dependence in which he was placed gave him an obvious interest in cultivating the good-will of those under whose authority he found himself placed; and if he still retained any principle of honesty, it could scarcely fail to be invigorated and developed under the encouragement that it would find in the society with which he was surrounded.
Thus it was in America. How is it in New South Wales? To receive the convicts upon their landing, a set of brutes in human shape, a species of society beyond comparison less favourable to colonization than utter solitude — few other inhabitants, but the very profligates themselves, who are sent by thousands from British goals, to be turned loose to mix with one another in this desert — together with the few taskmasters who superintend their work in the open wilderness, and the military men who are sent out with them, in large but still unequal numbers, to help to keep within bounds the mischief they would otherwise be sure to occupy themselves with when thus let loose. Here, then, there were not, as in America, any families to receive the convicts, any means of constantly separating them from each other; no constant and steady inspection. Field-husbandry is, under this system, the principal employment; hence general dispersion — field-husbandry carried on by individuals or heads of families, each occupying a distinct dwelling, the interior of which is altogether out of the habitual reach of every inspecting eye. It is true that the police officers occasionally go their rounds to maintain order and keep the convicts to their work: but what is to be expected from a system of inspection at long intervals, and which is as disgusting to the inspectors as to the inspected? Can this be regarded as a sufficient check against sloth, gaming, drunkenness, incontinence, profaneness, quarrelling, improvidence, and the absence of all honourable feeling? Immediately the back of the inspector is turned, all the disorder which his actual presence had suspended, is renewed. It may easily be imagined how completely all controul may be set at defiance by a set of men who have regularly organized among themselves a system of complicity, and who make it a matter of triumph and agreeable pastime to assist each other in escaping from inspection.
On this subject, the public have long been in the possession of a very valuable document: it is a complete history of the first sixteen years since the establishment of this colony, which, in respect of fidelity, possesses every title to confidence, and which states the events as they happened, in the form of a journal, accompanied with the necessary details. What gives the work the highest claim to confidence is, that the historiographer is also the panegyrist, the professed panegyrist of the establishment — a character which, when accompanied, as in this instance, with that candour and those internal marks of veracity, with which it is so rare for it to be accompanied, renders the testimony, in this point of view, more than doubly valuable.
The general impression left by a perusal of this work is one of sadness and disgust: it is a history of human nature in its most degraded and depraved state — an unmixed detail of crimes and punishments; — the men constantly engaged in conspiracies against the government, always forming plans for deceiving and disobeying their taskmasters, forming among themselves a society of refractory and wily profligates — a society of wolves and foxes; — the women, everywhere else the best part of humanity, prove in New South Wales a remarkable exception to this general rule. The late chief magistrate says, “The women are worse than the men, and are generally found at the bottom of every infamous transaction that is committed in the colony.”* His work abounds with passages to the same effect. Of such materials is it that the foundation of the colony is formed. From such a stock, and under such auspices, is it that the rising generation is to be produced.
The historian has not confined himself to vague imputations of general immorality and profligacy, but has particularized the acts of delinquency on which those imputations rest. The crimes that are committed at New South Wales, in spite of the alertness of the government and the summary administration of justice, surpass, in the skill and cunning with which they are managed, every thing that has been ever witnessed in this country. Almost every page of his work contains the description of offences against persons, or against property, either of individuals or of the public. Gaming and drunkenness produce perpetual quarrels, which usually end in murder. The crime of incendiarism is there practised to an extent altogether unexampled in any other country. Churches, prisons, public and private property, are all alike subjected to the devouring element, without any regard to the extent of the loss that may be occasioned, or the number of lives that may be sacrificed. “When the public gaol was set on fire,” says the historian, “it will be read with horror, that at the time there were confined within the walls twenty prisoners, most of whom were loaded with irons, and who with difficulty were snatched from the flames. Feeling for each other was never imputed to these miscreants; and yet, if several were engaged in the commission of a crime, they have seldom been known to betray their companions in iniquity.”† The bond of connexion is not sympathy for each other, but antipathy to the government, the common enemy. For the natives they manifest as little feeling, as towards each other. Spite of the rigour of the law, these European savages are guilty of the most wanton acts of barbarity towards the natives of the country; instead of cultivating a good understanding with them, which might have been attended with many advantages, they have converted them into the most determined enemies.
So far from exhibiting any symptoms of reformation, the longer they are subjected to the discipline of the colony, the worse they become. Whatever may be the degree of viciousness ascribed by the historian to the convicts during the continuance of their term, they appear in his history to be in a certain degree honest, sober, and orderly, in comparison with those whose term is expired, and who afterwards become settlers: they then become the prime instigators of all the crimes committed in the colony, and constitute the principal source of the embarrassment to which the government is subjected.
In proof of this assertion, the historian furnishes a most satisfactory piece of evidence. During the first five years subsequent to the establishment of the colony, and when there were no convicts whose terms had expired, the conduct of the convicts was in general orderly, and such as to give hopes of a disposition to reformation: but in proportion as, by the expiration of their respective terms, the number of the emancipated colonists increased, the most ungovernable licentiousness was introduced: not only those that were thus recently emancipated, as if to make up for the time they had lost, abandoned themselves to every species of excess, but they encouraged the natural viciousness of those who still remained in a state of bondage. — The convicts finding among these independent settlers, who were their old companions and associates, receivers of stolen property, and protectors from the punishments denounced by the law, always ready to receive them in their retreat from justice, and to conceal them from detection, became more insolent and refractory, anxiously waiting for the time when they also would be entitled to assume this stage of savage independence.
What possible means can be devised to neutralize this perpetually increasing influx of vice? All the expedients that have hitherto been employed have proved completely fruitless, and there would be no difficulty in showing that so they must ever be. Instruction, moral and religious, seems almost altogether vain: the very nature of the population bids defiance to the establishment of an effectual system of police, or to an uniform administration of the laws: rewards were found as inefficient as good-will in procuring evidence: the enormous consumption of spirituous liquors, the principal cause of all the disorders in the colony, has, from local circumstances, hitherto been found altogether irrepressible. Under each of these heads a few remarks may suffice.
With respect to religious instruction, little could be expected from two or three chaplains for a colony divided into eight or ten stations, each to appearance at too great a distance from the rest to send auditors to any other. To minds so disposed as those of the convicts, of what advantage was the attendance on divine service for one or two hours on one day in the week? And with what profit could religious instruction be expected to be received by men who were “made (as the historian expresses it* ) to attend divine service?” To rid themselves of the occasional listlessness they were thus made to endure, the church was got rid of by an incendiary plot. To punish them (if by accident another building fit for the purpose had not been already in existence) they were to have been employed on the Sunday in the erecting another building for the purpose.† To work on Sunday they might be made; but will they ever be made to lend an attentive ear and a docile heart to authorative instruction? Even the women, says the historian, were extremely remiss in their attendance on divine service, and were never at a loss for mendacious pretences for excusing themselves. In short, instead of being observed as a day dedicated to religious duties, Sunday appears in that colony to have been distinguished only by the riot and debauchery with which it was marked — those who did not attend divine service, taking advantage of the absence of those who did, to plunder their dwellings and destroy their crops.
It has just been seen with how very sparing a hand religious instruction for the Protestant part of the establishment was supplied. For the spiritual instruction of the Catholic part of the colony, which, from the large importations made from Ireland, must now have become very numerous, it does not appear that any provision whatever was made. It is true, that in one of the importations of convicts from Ireland, a priest of the Catholic persuasion, whose offence was sedition, was comprised.‡ If, instead of a seditious clergyman, would not the expense have been well bestowed in sending out a loyalist clergyman of the same religious persuasion?∥
As to the police, it is necessarily in an extreme degree debilitated by the corrupt state of the subordinate class of public functionaries. In a population that warranted the utmost distrust on the part of the government, it was found necessary to restrain the free intercourse between the several parts of the colony. All persons, officers excepted, were forbidden to travel from one district of the settlement to another without passports. These regulations proved, however, altogether nugatory: the constables whose duty it was to inspect these passports,§ either from fear or corruption, neglected to do their duty, whilst, as has been already mentioned, a most effectual bar to the preservation of any well-regulated system of police, was found in those convicts whose terms had expired, and who were ever ready to give protection and assistance to the criminal and turbulent.
With regard to all classes of offences committed in this colony, justice was paralyzed by a principle which ensured impunity, and which it seems impossible to eradicate. With the historian, who was also Judge Advocate, it is a matter of perpetual complaint, that it was scarcely possible to convict an offender who was not taken in the very act of committing an offence. Evidence was on almost all occasions altogether as inaccessible as if there had been a combination and tacit agreement among the majority of the inhabitants of the colony to paralyze the arm of justice, by a refusal to bear testimony. He speaks of five murders in one year* (1796,) which were left unpunished, notwithstanding the strong presumptions which indicated the guilty parties, because the necessary witnesses would not come forward, even though extraordinary rewards were offered. One such fact is sufficient: it is superfluous to cite others of the same nature.
The most prominent cause of this state of abandoned profligacy, is the universal and immoderate passion for spirituous liquors: it is the exciting cause which leads to every species of vice — gaming, dissoluteness, depredation, and murder. Servants, soldiers, labourers, women, the youth of both sexes, prisoners and their gaolers, are all alike corrupted by it: it was carried to such a pitch, that numbers of the settlers were in the practice of selling the whole of their crops, as soon as they were gathered, in order to purchase their favourite liquor. The attempts made from time to time by the government, to check this practice, have proved altogether unavailing. The policy of the government upon this point appears not to have been quite steady: sometimes it has allowed the trade in spirituous liquors, at other times it has been forbidden. But whatever may be the policy of the government, experience shows, that from the diffusiveness of the population, as well as from other causes, no precautions within its power will ever diminish the quantity of this liquid poison consumed in any part of the colony. The greater the population, and the more distant the stations from the seat of government, the more easy will it be to carry on private distilleries, and to prevent them from being detected. And even if the supply thus produced were unequal to the demand, it would be impossible to prevent smuggling on an extent of coast which the whole navy of England would be unequal to guard. If it were found impossible to restrain this evil when the colony was confined to a single station, and a single harbour, can any better success be looked for now that the settlements are spread wide over the face of the country, when there are numerous settlers constantly employed in the manufacture of this article, and every ship that arrives is provided with an abundant supply, the sale of it being more certain and more profitable than that of any other commodity.
Such has been the state of the convict population of this colony — past reformation none — future reformation still more hopeless. We have perhaps dwelt too long upon this part of the subject: fortunately the topics which remain may be compressed into a narrower compass.
III. The third object or end of punishment is incapacitation— taking from the delinquent the power of committing the same crimes.
Transportation accomplishes this object, with relation to a certain place. The convict, whilst in New South Wales, cannot commit crimes in England; the distance between the two places in a considerable degree precludes his illegal return, and this is the sum of the advantage.
Whilst the convict is at Botany Bay, he need not be dreaded in England: but his character remains the same, and the crimes which are mischievous in the mother country are mischievous in the colony; we ought not, therefore, to attribute to this punishment an advantage which it does not possess. That an inhabitant of London should rejoice in the removal to a distance of a dangerous character, is easily comprehended: his particular interest is touched. But a punishment ought not to meet the approbation of a legislature, which, without diminishing the number of crimes committed, only changes the place of their commission.
The security, great as it may appear to be, against returns both legal and illegal, has not been so effectual as might have been expected. The number of convicts who left the colony between the years 1790 and 1796, the accounts of which are scattered over the whole of Collins’ work, amount in the whole to 166, of which 89 consisted of those whose terms had expired, and 76 of those whose terms had not expired. This is, however, very far from being the total amount of either description of those that had quitted the colony, with or without permission. Escapes are in various parts of the work mentioned as being made in clusters, and the numbers composing each cluster not being stated, could not be carried to the above account.
The number of escapes will, most probably, increase as commerce extends, and as the convicts become more numerous, and consequently possess greater facilities for escaping.
IV. The fourth end or object of punishment is the making compensation or satisfaction to the party injured.
On this head, there is but one word to be said:— The system of transportation is altogether destitute of this quality. It is true, that this objection has no weight, except in comparison with a system of punishment in which provision is made, out of the labour of the offender, for compensation to the party injured.
V. The fifth end or object proper to be kept in view in a system of penal legislation, is the collateral object of economy.
If it could be said of the system in question, that it possessed all the several qualities desirable in a plan of penal legislation, its being attended with a certain greater degree of expense would not afford a very serious objection to it; but in this case, this system, the most defective in itself, is at the same time carried on at a most enormous expense.
Upon this subject, the 28th Report of the Committee of Finance contains the most accurate and minute information. From that report it appears, that the total expense incurred during the ten or eleven first years of the establishment, ending in the year 1798, amounted to £1,037,000, which sum being divided by the number of convicts, will be found to amount to about £46 a-head. A possible reduction is in that report contemplated, which might in time cut down the expense to about £37 per head. To this expense, however, must be added the value of each man’s labour, since, if not considered as thrown away, the value ought to be added to the account of expense.
Consider New South Wales as a large manufacturing establishment: the master manufacturer, on balancing his accounts, would find himself minus £46 for every workman that he employed.
What enhances the expense of this manufacturing establishment beyond what it would be in the mother country, are — 1. The expense incurred in conveying the workmen to a distance of between two and three thousand leagues; 2. The maintenance of the civil establishment, consisting of governors, judges, inspectors, police officers, &c.; 3. The maintenance of a military establishment, the sole object of which is to preserve subordination and peace in the colony; 4. The wide separation of the workmen, their untrustworthiness, their profligacy, favoured by the local circumstances of the colony, and the trifling value of the labour that can be extracted by compulsion from men who have no interest in the produce of their labour; 5. The high price of all the tools and raw materials employed in carrying on the manufactory, which are brought from Europe at the risk and expense of a long voyage.
If it be impossible to find a single clerk in Manchester or Liverpool, who would not have taken all these circumstances into his consideration, in making such a calculation as that in question, and if, after, or without having made it, there is not one man of common sense who would have undertaken such a scheme, a necessary conclusion is, that the arithmetic of those who risk their own property, is very different from that of those who speculate at the expense of the public.
In addition to the evils above enumerated, as attending the system of transportation to New South Wales, the punishment thus inflicted is liable to be attended with various species of aggravation, making so much clear addition to the punishment pronounced by the legislator.
When a punishment is denounced by the legislature, it ought to be selected as the one best adapted to the nature of the offence: his will ought to be, that the punishment inflicted should be such as he has directed; he regards it as sufficient; his will is, that it should not be made either more lenient or more severe: he reckons that a certain punishment, when inflicted, produces a given effect, but that another punishment, if by accident coupled with the principal one, whether from negligence or interest on the part of subordinates, exceeding the intention of the law, is so much injustice, and being nugatory in the way of example, produces so much uncompensated evil.
The punishment of transportation, which, according to the intention of the legislator, is designed as a comparatively lenient punishment, and is rarely directed to exceed a term of from seven to fourteen years, under the system in question is, in point of fact, frequently converted into capital punishment. What is the more to be lamented is, that this monstrous aggravation will, in general, be found to fall almost exclusively upon the least robust and least noxious class of offenders — those who, by their sensibility, former habits of life, sex and age, are least able to contend against the terrible visitation to which they are exposed during the course of a long and perilous voyage. Upon this subject the facts are as authentic as they are lamentable.
In a period of above eight years and a half, viz. from the 8th of May 1787, to the 31st December 1795, of five thousand one hundred and ninety-six embarked, five hundred and twenty-two perished in the course of the voyage; nor is this all, the accounts being incomplete. Out of twenty-eight vessels, in twenty-three of which the mortality just spoken of is stated to have taken place, there are five in respect of which the number of deaths is not mentioned.*
A voyage, however long it may be, does not necessarily shorten human existence. Captain Cook went round the world, and returned without the loss of a single man. It necessarily follows, therefore, that a voyage which decimates those that are sent upon it, must be attended with some very peculiar circumstances. In the present case, it is very clear that the mortality that thus prevailed arose partly from the state of the convicts, partly from the discipline to which they were subjected. Allow them to come on deck, everything is to be apprehended from their turbulent dispositions: confine them in the hold, and they contract the most dangerous diseases. If the merchant, who contracts for their transportation, or the captain of the ship that is employed by him, happen to be unfeeling and rapacious, the provisions are scanty and of a bad quality. If a single prisoner happen to bring with him the seeds of an infectious disorder, the contagion spreads over the whole ship. A ship (The Hillsborough) which, in the year 1799, was employed in the conveyance of convicts, out of a population of 300 lost 101.* It was not, says Colonel Collins, a neglect of any of the requisite precautions, but the gaol fever, which had been introduced by one of the prisoners, that caused this dreadful ravage.
Whatever may be the precautions employed, by any single accident or act of negligence, death, under its most terrific forms, is at all times liable to be introduced into these floating prisons, which have to traverse half the surface of the globe, with daily accumulating causes of destruction within them, before the diseased and dying can be separated from those who, having escaped infection, will have to drag out a debilitated existence in a state of bondage and exile.
Can the intention of the legislator be recognised in these accumulated aggravations to the punishment denounced? Can he be said to be aware of what he is doing, when he denounces a punishment, the infliction of which is withdrawn altogether from his controul — which is subjected to a multiplicity of accidents — the nature of which is different from what it is pronounced to be — and in its execution bears scarce any resemblance to what he had the intention of inflicting? Justice, of which the most sacred attributes are certainty and precision — which ought to weigh with the most scrupulous nicety the evils which it distributes — becomes, under the system in question, a sort of lottery, the pains of which fall into the hands of those that are least deserving of them. Translate this complication of chances, and see what the result will be: “I sentence you,” says the judge, “but to what I know not — perhaps to storm and shipwreck — perhaps to infectious disorders — perhaps to famine — perhaps to be massacred by savages — perhaps to be devoured by wild beasts. Away — take your chance — perish or prosper — suffer or enjoy: I rid myself of the sight of you: the ship that bears you away saves me from witnessing your sufferings — I shall give myself no more trouble about you.”
But it may perhaps be said, that however deficient in a penal view, New South Wales possesses great political advantages: it is an infant colony; the population will by degrees increase; the successively rising generations will become more enlightened and more moral; and after the lapse of a certain number of centuries, it will become a dependent settlement, of the highest political importance.
The first answer to this is, if it be thought to require any, that of all the expedients that could have been devised for founding a new colony in this or in any other place, the most expensive and the most hopeless was the sending out, as the embryo stock, a set of men of stigmatized character and dissolute habits of life. If there be any one situation more than another that requires patience, sobriety, industry, fortitude, intelligence, it is that of a set of colonists transported to a distance from their native country, constantly exposed to all sorts of privations, who have everything to create, and who, in a newly-formed establishment, have to conciliate a set of savage and ferocious barbarians, justly dreading an invasion on their lives and property. Even an old-established and well-organized community would be exposed to destruction, from an infusion of vicious and profligate malefactors, if effectual remedies were not employed to repress them: such characters are destitute of all qualities, both moral and physical, that are essential in the establishing a colony, or that would enable them to subdue the obstacles opposed by nature in its rude and uncultivated state.
Where colonization has succeeded, the character of the infant population has been far different. The founders of the most successful colonies have consisted of a set of benevolent and pacific Quakers— of men of religious scruples, who have transported themselves to another hemisphere, in order that they might enjoy undisturbed liberty of conscience — of poor and honest labourers accustomed to frugal and industrious habits.†
The plans of Mr. Bentham upon this subject are already before the public: for the purpose of the present work, it will be only necessarily shortly to explain the three fundamental ideas which he lays down:—
I. A Circular, or Polygonal Building, with cells on each story in the circumference; in the centre, a lodge for the inspector, from which he may see all the prisoners, without being himself seen, and from whence he may issue all his directions, without being obliged to quit his post.
II. Management by Contract.— The contractor undertaking the whole concern at a certain price for each prisoner, reserving to himself the disposal of all the profit which may arise from their labours, the species of which is left to his choice.
Under this system, the interest of the governor is, as far as possible, identified with his duty. The more orderly and industrious the prisoners, the greater the amount of his profits. He will, therefore, teach them the most profitable trades, and give them such portion of the profits as shall excite them to labour. He unites in himself the characters of magistrate, inspector, head of a manufactory and of a family, and is urged on by the strongest motives faithfully to discharge all these duties.
III. Responsibility of the Manager.— He is bound to assure the lives of his prisoners. A calculation is made of the average number of deaths in the year, among the mixed multitude committed to his care, and a certain sum is allowed to him for each; but at the end of the year, he is required to pay a similar sum for every one lost by death or escape. He is therefore constituted the assurer of the lives and safe custody of his prisoners; but to assure their lives, is at the same time to secure the multitude of cares and attentions, on which their health and well-being depend.
Publicity is the effectual preservative against abuses. Under the present system, prisons are covered with an impenetrable veil: the Panopticon, on the contrary, would be, so to speak, transparent — accessible, at all hours, to properly authorized magistrates — accessible to everybody, at properly regulated hours, or days. The spectator, introduced into the central lodge, would behold the whole of the interior, and would be a witness to the detention of the prisoners, and a judge of their condition.
Some individuals, pretending to a high degree of sensibility, have considered this continual inspection, which constitutes the peculiar merit of Mr. Bentham’s plan, as objectionable. It has appeared to them as a restraint more terrible than any other tyranny: they have depicted an establishment of this kind as a place of torment. In so doing, these men of sensibility have forgotten the state of most other prisons, in which the prisoners, heaped together, can enjoy tranquillity neither day nor night. They forget, that under this system of continual inspection, a greater degree of liberty and ease can be allowed — that chains and shackles may be suppressed — that the prisoners may be allowed to associate in small companies — that all quarrels, tumults, and noise, bitter sources of vexation, will be prevented — that the prisoners will be protected against the caprices of their gaolers, and the brutality of their companions; whilst those frequent and cruel instances of neglect which have occurred, will be prevented by the facility of appeal which will be afforded to the principal authority. These real advantages are overlooked by a fantastic sensibility which never reasons.
Let us suppose a prison established upon this plan; and then observe in what manner it contributes to the several ends of punishment:—
It would be placed in the neighbourhood of the metropolis, where the greatest number of persons are collected together, and especially of those who require to be reminded, by penal exhibitions, of the consequences of crime. The appearance of the building, the singularity of its shape, the walls and ditches by which it would be surrounded, the guards stationed at its gates, would all excite ideas of restraint and punishment; whilst the facility which would be given to admission would scarcely fail to attract a multitude of visitors. And what would they see? — a set of persons deprived of liberty which they have misused — compelled to engage in labour, which was formerly their aversion — and restrained from riot and intemperance, in which they formerly delighted; the whole of them clothed in a particular dress, indicating the infamy of their crimes. What scene could be more instructive to the great proportion of the spectators? What a source of conversation, of allusion, of domestic instruction! How naturally would the aspect of this prison lead to a comparison between the labour of the free man and the prisoner — between the enjoyments of the innocent, and the privations of the criminal! And, at the same time, the real punishment would be less than the apparent:— the spectators, who would have only a momentary view of this doleful spectacle, would not perceive all the circumstances which would effectively soften the rigours of this prison. The punishment would be visible, and the imagination would exaggerate its amount; its relaxations would be out of sight; no portion of the suffering inflicted would be lost. The greater number even of the prisoners, being taken from the class of unfortunate and suffering individuals, would be in a state of comfort; whilst ennui, the scourge of ordinary prisons, would be banished.
Idleness, intemperance, and vicious connexions, are the three principal causes of corruption among the poor. When habits of this nature have become to such a degree inveterate, as to surmount the tutelary motives, and to lead to the commission of crimes, no hope of reformation can be entertained but by a new course of education — an education that shall place the patient in a situation in which he will find it impossible to gratify his vicious propensities, and where every surrounding object will tend to give birth to habits and inclinations of a nature altogether opposite. The principal instrument which can be employed on this occasion is perpetual superintendence. Delinquents are a peculiar race of beings, who require unremitted inspection. Their weakness consists in yielding to the seductions of the passing moment. Their minds are weak and disordered, and though their disease is neither so clearly marked nor so incurable as that of idiots and lunatics, like these they require to be kept under restraints, and they cannot, without danger, be left to themselves.
Under the safeguard of this continual inspection, without which success is not to be expected, the penitentiary house described includes all the causes which are calculated to destroy the seeds of vice, and to rear those of virtue.
1. Labour.— It is admitted that constraint, instead of inspiring a taste for labour, is calculated to augment the aversion to it. It must, however, be recollected that, in this case, labour is the only resource against ennui — that being imposed upon all, it will be encouraged by example, and rendered more agreeable by being carried on in the company of others; it will be followed by immediate reward, and the individual being allowed a share in the profits, it will lose the character of servitude, by his being rendered, in some measure, a partner in the concern. Those who formerly understood no lucrative business, will, in this new course of education, obtain new faculties and new enjoyments; and when they shall be set free, will have learned a trade, the profits of which are greater than those of fraud and rapine.
2. Temperance.— We have already had occasion to show that nearly all the crimes committed at Botany Bay either originate or are increased by the use of spirituous liquors, and that it is impossible to prevent their use. Here the evil is arrested in its source: it will not be possible to smuggle in a drop of this poison; transgressions will therefore be impossible. Man yields to necessity: difficulties may stimulate his desires, but an absolute impossibility of satisfying them destroys them, when they are not supported by long established habits. There is much humanity in a strict rule, which prevents not only faults and chastisements, but temptations also.
3. Separation into Classes.— The Panopticon is the only practicable plan which admits of the prisoners being divided into little societies, in such manner as to separate those whose vicious propensities are most contagious. These associations can hardly fail to afford opportunities for the performance of reciprocal services, for the exercise of the affections, and the formation of habits favourable to reformation. The relation of master and scholar will gradually be formed among them; opportunities will thus be given for bestowing rewards for instruction — for exciting emulation in learning, and the creation of a sentiment of honour and self-esteem, which will be among the first fruits of application. Ideas of improvement and lawful gains will, by degrees, supplant those of licentiousness and fraudulent acquisition. All these advantages arise out of the very nature of the establishment.
Why should not unmarried prisoners be allowed to intermarry? It would operate as a powerful spur to those who aimed at attaining this reward, which should only be bestowed on account of orderly conduct and industry.
These little societies present an additional security, arising from their mutual responsibility. It is both just and natural to say to them, “You live together, you act together; you were able to have prevented this crime, and if you have not so done, you are accomplices in it.” Thus the prisoners would be converted into guardians and inspectors of each other. Each cell would be interested in the good conduct of every one of its members. If any one of them should be distinguished for its good order, some distinction might be bestowed upon it, which should be visible to all. By such means, a feeling of honour might be excited even in the abode of ignominy.
4. Instruction.— Indigence and ignorance are the parents of crime. The instruction of those prisoners who are not too old to learn, confers upon them many benefits at once: it affords great assistance in changing the habits of the mind, and elevating them, in their own estimation, from the class of beings who are degraded on account of the inferiority of their education. Different studies may usefully fill up the intervals of time, when mechanical operations are suspended — both prudence and humanity dictating the occupation of those intervals, instead of abandoning to themselves minds to whom idleness is a burthen difficult to bear. But the object is much more important, especially with regard to young offenders, who form the largest proportion of the whole. The prison should be their school, in which they should learn those habits, which should prevent their ever entering it again.
The services of religion ought to be rendered attractive, in order that they may be efficacious. They may be performed in the centre of the building, without the prisoners quitting their cells. The central lodge may be opened for the admission of the public; the worship adapted to the nature of the establishment may be accompanied with solemn music, to add to its solemnity. The chaplain engaged in its performance would not be a stranger to the prisoners: his instructions should be adapted to the wants of those to whom they are addressed: he would be known to them as their daily benefactor, who watches over the progress of their amendment, who is the interpreter of their wishes, and their witness before their superiors. As their protector and instructor, as a friend who consoles and who enlightens them, he would unite all the titles which can render him an object of respect and affection. How many sensible and virtuous men would seek a situation which presents, to a religious mind, opportunities for conquests more interesting than the savage regions of Africa and Canada!
There is, at all times, great reason for distrusting the reformation of criminals. Experience too often justifies the maxim of the poet,
“L’honneur est comme une ile escarpée et sans bords:
On n’y peut plus rentrer dès qu’on en est dehors.”
But those who are most distrustful and incredulous of good, must acknowledge at least that there is a great difference to be made in this respect, on account of the age of the delinquents and the nature of their offences. Youth may be moulded like soft wax, whilst advanced age will not yield to new impressions: many crimes are not deeply rooted in the heart, but spring up there from seduction, example, and above all, indigence and hunger. Some are sudden acts of vengeance, which do not imply habitual perversity. These distinctions are just, and not controverted. It must also be admitted, that the plan we have described presents the most efficacious means for the amendment of those who have preserved some remains of honest principle.
Whatever may be its effects in producing internal reformation and correcting the will, the Panopticon unites all the conditions requisite for the prevention of the commission of new offences.
Under this head, the prisoners may be considered at two periods — the period of their imprisonment; the period posterior to their liberation.
During the first, suppose them as wicked as you will, what crimes can they commit whilst under uninterrupted inspection — divided by cells at all times sufficiently strong to resist a revolt — unable to unite or to conspire without being seen — responsible the one for the other — deprived of all communication with the exterior — deprived of all intoxicating liquors (those stimulants to dangerous enterprises)— and in the hand of a governor who could immediately isolate the dangerous individual? The simple enumeration of these circumstances inspires a feeling of perfect security. When we recall the picture of Botany Bay, the contrast becomes as striking as it can be rendered.
The prevention of crimes on the part of delinquent prisoners is also in proportion to the difficulty of their escape; and what system affords in this respect a security comparable to that of the Panopticon?
With respect to discharged prisoners, the only absolute guarantee is in their reformation.
Independently of this happy effect, which may be expected in this plan more than upon any other, the liberated prisoners would, for the most part, have acquired, by the savings made for them out of their part of the profit of their labour, a stock which will secure them from the immediate temptations of want, and give them time to avail themselves of those resources of industry, which they have acquired during their captivity.
But this is not all. I have reserved for this chapter the mention of an ingenious plan, which the author of the Panopticon has proposed as a supplement to this scheme of punishment. He has paid particular attention to the dangerous and critical situation of discharged prisoners, when re-entering the world after a detention, perhaps, for many years: they have no friends to receive them — without reputation to recommend them — with characters open to suspicion; and many times, perhaps, in the first transports of joy for recovered liberty, as little qualified to use it with discretion, as the slaves who have broken their fetters. By these considerations, the author was led to the idea of an auxiliary establishment, into which the discharged prisoners might be admitted when they left the Panopticon, and be allowed to continue for a longer or shorter period, according to the nature of their crimes, and their previous conduct. The details of the plan would be foreign to the present subject. It must suffice to say, that in this privileged asylum they would have different degrees of liberty, the choice of their occupations, the entire profit of their labour, with fixed and moderate charges for their board and lodging, and the right of going and returning, on leaving a certain sum as a security; they would wear no prisoner’s uniform, no humiliating badge. The greater number, in the first moment of their embarrassment, whilst they have no certain object in view, would themselves choose a retreat so suitable to their situation. This transient sojourn, this noviciate, would serve to conduct them by degrees to their entire liberty; it would be an intermediate state between captivity and independence, and afford a proof of the sincerity of their amendment; it would afford a just precaution against individuals in whom an immediate and absolute confidence could not be reposed without danger.
In most systems of jurisprudence, when a delinquent has been corporally punished, justice is thought to have been satisfied: it is not in general required that he should make compensation to the party injured.
It is true, that in the greater number of cases, compensation could not be exacted of him: delinquents are commonly of the poorer class — ex nihilo, nihil fit.
If they are idle during their imprisonment, far from being able to render satisfaction, they constitute a charge upon society.
If they are condemned to public works, these works, rarely sufficiently lucrative to cover the expense of undertaking them, cannot furnish any surplus.
It is only in a plan like the Panopticon, in which, by the combination of labour and economy in the administration, it is possible to obtain a profit sufficiently great to offer at least some portion of indemnity to the parties injured. Mr. Bentham had made engagements upon this head in his contract with the Ministers. In the prisons of Philadelpnia, they levy upon the portion of profit allowed to the prisoner, the expenses of his detection and prosecution. One step more, and they will grant indemnity to the parties injured.
To say that, of two plans of equal merit, the most economical ought to be preferred, is to advance a proposition which must appear trivial to all those who do not know that the expense of an enterprise is often its secret recommendation, and that economy is a virtue against which there exists a general conspiracy.
In the conract for the Panopticon, one thousand convicts were to have cost the state £12 per head, without including the expense of constructing the prison, which was estimated at £12,000, and the ground at £10,000; upon which, reckoning interest at £5 per cent., £1: 10s. ought to be added for the annual expense of each, making the total expense of each individual, £13: 10s. per annum.
It should be recollected, that at this time the average expense of each convict in New Holland, was £37 per annum, nearly three times as much. Besides, the author of the panopticon assured —
1. An indemnity to the parties injured.
2. He allowed a fourth part of the profits of their labour to the prisoners.
3. He was to make a future reduction in the expense to government.
A new undertaking, like that of the Panopticon, intended to embrace many branches of industry, would not yield its greatest profits at first; it would be expensive at first, and only become profitable by degrees. Time would be required for establishing its manufactories, and for the cultivation of the grounds applicable to the support of the establishment; for forming its pupils, and regulating their habits; in a word, bringing to perfection the whole economy of its system. Mr. Bentham had expressly stipulated for the publicity of his accounts; and if the advantages, as was expected, had become considerable, the government would have been enabled to take advantage of them in obtaining more favourable terms in its subsequent contracts. Mr. Bentham reckoned, from the calculations he had made, and respecting which he had consulted experienced persons, that after a short time the convicts would cost the government nothing.
Laying aside everything hypothetical, it is clear that a penitentiary at home ought to be less expensive than a colonial establishment. The reasons for this opinion have been given when speaking of transportation to Botany Bay.
I have shown the excellence of this plan with reference to all the ends of punishment: it remains to be observed, that it attains its object without producing any of those collateral inconveniences which abound in colonial transportation. There is no prolonged sojourn in the hulks — none of the dangers of a long sea voyage — no promiscuous intercourse of prisoners — no contagious sickness — no danger of famine — no warfare with the savage natives — no rebellions — no abuse of power by the persons in authority — in short, an entire absence of the accidental and accessory evils, of which every page of the history of the penal colony affords an example. What an immense economy in the employment of punishment! It will no longer be dissipated and lost upon barren rocks, and amid far distant deserts: it will always preserve the nature of legal punishment — of just and merited suffering, without being converted into evils of every description, which excite only pity. The whole of it will be seen: it will all be useful; it will not depend upon chance; its execution will not be abandoned to subordinate and mercenary hands; the legislator who appoints it, may incessantly watch over its administration.
The success which may be obtained from a well-regulated penitentiary is no longer a simple probability founded upon reasoning. The trial has been made; it has succeeded even beyond what has been hoped. The quakers of Pensylvania have the honour of making the attempt: it is one of the most beauteous ornaments of the crown of humanity which distinguishes them among all other societies of christians. They had for a long time to struggle with the ordinary obstacles of prejudice and indifference on the part of the public — the routine of the tribunals, and the repulsive incredulity of frigid reasoners.
The penitentiary house at Philadelphia is described, not only in the official reports of its governor, but also in the accounts of two disinterested observers, whose agreement is the more striking, as they brought to its examination neither the same prejudices nor views. The one was a Frenchman, the Duke de Liancourt, well acquainted with the arrangements of hospitals and prisons; — the other an Englishman, Captain Turnbull, more occupied with maritime affairs than politics or jurisprudence.
Both of them represent the interior of this prison as a scene of peaceful and regular activity. Hauteur and rigour are not displayed on the part of the gaolers, nor insolence nor baseness on the part of the prisoners. Their language is gentle; a harsh expression is not permitted. If any fault is committed, the punishment is solitary confinement, and the registration of the fault in a book, in which every one has an account opened, as well for good as for evil. Health, decency, and propriety, reign throughout. There is nothing to offend the most delicate of the senses; no noise, no boisterous songs nor tumultuous conversation. Every one, engaged with his own work, fears to interrupt the labours of others. This external peace is maintained as favourable to reflection and labour, and well calculated to prevent that state of irritation so common elsewhere among prisoners and their keepers.
“I was surprised,” said Captain Turnbull, “at finding a woman exercising the functions of gaoler. This circumstance having excited my curiosity, I was informed that the husband having filled the same situation before her, amidst the attentions he was paying to his daughter, he was seized with the yellow fever and died, leaving the prisoners to regret that they had lost a friend and protector. In consideration of his services, his widow was chosen to succeed him. She has discharged all the duties with equal attention and humanity.”
Where shall we find similar traits in the registers of a prison? They call up the pictures of a future golden age depicted by the prophet, when “the wolf shall lie down with the lamb, and a little child shall lead them.”
I cannot refuse to transcribe two other facts, which do not stand in need of any commentary:—“During the yellow fever in 1793, there was much difficulty in obtaining nurses for the sick in the hospitals at Bush Hill. Recourse was had to the prison. The question was asked; the danger of the service was explained to the convicts; as many offered themselves as were wanted. They discharged their duties faithfully till the conclusion of that tragic scene, and none of them demanded any wages till the period of their discharge.”
The females gave another proof of good conduct during the course of the contagion. They were requested to give up their bedsteads for the use of the hospital: they willingly offered their beds also.
Oh Virtue! where wilt thou hide thyself? exclaimed the philosopher, upon witnessing an act of probity on the part of a beggar. Would he have been less surprised at this act of heroic benevolence in a criminal prison?
Had this good conduct of the prisoners been only a simple suspension of their vices and crimes, it would have been a great point gained; but it extended much further:—
“Of all the criminals who have been found guilty,” says Turnbull, “there has not been five in each hundred who have been in the prison before.”
At New York, although the result has not been so favourable, it exhibits the good effects of the system:—“During the five years ending in 1801,” says Mr. Eddy, the principal governor of the Penitentiary, in the account rendered to his fellow-citizens, “of three hundred and forty-nine prisoners who have been set at liberty at the expiration of their sentences, or by pardons, twenty-nine only have been convicted of new offences; and of this twenty-nine, sixteen were foreigners. Of eighty-six pardoned, eight have been apprehended for new offences; and of this eight, five were foreigners.”
It must, however, be remembered, that we may guard against exaggeration, that of these liberated prisoners, many may have expatriated themselves, and committed crimes in the neighbouring States, being unwilling to expose themselves to the austere imprisonment of New York or Philadelphia; for it is a fact, that the risk of death is less frightful to men of this temper, than laborious captivity.
The success of these establishments is, without doubt, owing in great measure to the enlightened zeal of their founders and inspectors; but it has permanent causes in the sobriety and industry established, and the rewards bestowed for good conduct.
The rule which has ensured sobriety, has been the entire exclusion of strong liquors: no fermented liquor is allowed, not even small beer. It has been found more easy to insure abstinence than moderation. Experience has proved that the stimulus of strong liquors has only a transitory effect, and that an abundant and simple nourishment, with water for the only drink, fits men for the performance of continued labours. Many of those who entered the prison of New York with constitutions enfeebled by intemperance and debauchery, have regained, in a short time, under this regime, their health and vigour.
The Duke de Liancourt and Captain Turnbull have entered into more precise details. We learn from them, that since the adoption of this system, the charge for medicines, which amounted annually to more than twelve hundred dollars, has been reduced to one hundred and sixty. This fact affords a still stronger proof of the salubrity of this prison.
This exposition, in which I have omitted many favourable circumstances, without suppressing anything of a contrary nature, is sufficient to show the superiority of penitentiaries over the system of transportation. If the results have been so advantageous in America, why should they be less so in England? The nature of man is uniform: criminals are not more obstinate in the one place than the other: the motives which may be employed are equally powerful. The new plan proposed by the author of the Panopticon, presents a sensible improvement upon the American methods:— the inspection is more complete — the instruction more extended — escape more difficult; publicity is increased in every respect; the distribution of the prisoners, by means of cells and classes, obviates the inconvenient association which subsists in the Penitentiary at Philadelphia. But what is worth more than all the rest is, that the responsibility of the governor in the Panopticon system is connected with his personal interest in such manner, that he cannot neglect one of his duties, without being the first to suffer; whilst all the good he does to his prisoners redounds to his own advantage. Religion and humanity animated the founders of the American Penitentiaries: will these generous principles be less powerful when united with the interests of reputation and fortune? the two grand securities of every public establishment — the only ones upon which a politician can constantly rely — the only ones whose operation is not subject to relaxation — the only ones which, always being in accordance with virtue, may perform its part, and even replace it when it is wanting.
Felony is a word of which the signification seems to have undergone various revolutions. It seems at first to have been vaguely applied to a very extensive mode of delinquency, or rather for delinquency in general, at a time when the laws scarce knew of any other species of delinquency cognizable by fixed rules, than the breach of a political engagement, and when all political engagements were comprised in one, that of feudal obligation. Upon feudal principles, everything that was possessed by a subject, and was considered as a permanent source of property and power, was considered as a gift, by the acceptance of which the acquirer contracted a loose and indefinite kind of engagement, the nature of which was never accurately explained, but was understood to be to this effect: that the acceptor should render certain stipulated services to the donor, and should, in general, refrain from everything that was prejudicial to his interests. It was this principle of subjection, in its nature rather moral than political, which at the first partition of conquered countries, bound the different ranks of men, by whatever names distinguished, to each other — as the barons to the prince, the knights to the barons, and the peasants to the knights. If, then, the acceptor failed in any of these points — if in any one of his steps he fell from the line which had been traced for him, and which at that time was the only line of duty, he was not such a man as his benefactor took him for; the motive for the benefaction ceased. He lost his fief, the only source of his political importance, and with it all that was worth living for. He was thrust down among the ignoble and defenceless crowd of needy retainers, whose persons and precarious properties were subject to the arbitrary disposal of the hand that fed them. So striking and impressive a figure did such a catastrophe make in the imaginations of men, that the punishment of death, when, in course of time, it came in various instances to be superadded to the other, showed itself only in the light of an appendage.* It came in by custom, rather than by any regular and positive institution: it seemed to follow rather as a natural effect of the impotence to which the inferior was reduced, than in consequence of any regular exertion of the public will of the community.
This seems to have been the aspect of the times at the first dawnings of the feudal polity; but it was impossible things should long remain in so unsettled a state. It is in such times, however, that we are to look for the origin of a word which, sometimes as the name of a crime, sometimes as a punishment, is to be met with in the earliest memorials that are extant of the feudal law.
Some etymologists, to show they understood Greek, have derived it from the Greek: if they had happened to have understood Arabic, they would have derived it from the Arabic. Sir Edward Coke, knowing nothing of Greek, but having a little stock of Latin learning, which he loses no opportunity of displaying, derives it from fel, gall. Spelman, who has the good sense to perceive that the origin of an old northern word is to be looked for in an old northern language, rejecting the Greek, and saying nothing of the Latin, proposes various etymologies. According to one of them, it is derived from two words —fee, which in ancient Anglo-Saxon had, and in modern English has, a meaning which approaches to that of property or money; and lon, which in modern German, he says, means price: fee lon is therefore pretium feudi. This etymology, the author of the Commentaries adopts, and justifies by observing, that it is a common phrase to say, such an act is as much as your life or estate is worth. But felony, in mixed Latin felonia, is a word that imports action. I should therefore rather be inclined to derive it from some verb, than from two substantives, which, when put together, and declined in the most convenient manner, import not any such meaning.
The verb to fall, as well as to fail, which probably was in its origin the same as the other, by an obvious enough metaphysical extension, is well known to have acquired the signification of to offend; the same figure is adopted in the French, and probably in every other language.†
In Anglo-Saxon there is such a word as fellan,‡ the evident root of the English word now in use. In German, there is such a word as faellen, which has the same signification. This derivation, therefore, which is one of Spelman’s, is what seems to be the most natural. So much for the origin of the word: not that it is of any consequence whence it came, so it were but gone.
As the rigours of the feudal polity were relaxed, and fiefs became permanent and descendible, the resumption of the fief upon every instance of trivial delinquency became less and less of course. A feudatory might commit an offence that was not a felony. On the other hand, it was found, too, that for many offences the mere resumption of the feud was not by any means a sufficient punishment; for a man might hold different feuds of as many different persons. The Sovereign, too, interposed his claim on behalf of himself and the whole community, and exacted punishments for offences which, to the immediate lord of the feudatory, might happen not to be obnoxious. In this way, for various offences, pecuniary and corporal punishments in various degree, and even death itself, came in some instances to be substituted — in others, to be superadded, by positive laws to that original indiscriminating punishment, which used at first to follow from almost every offence. That punishment remained still inseparably annexed to all those offences which were marked by the highest degree of corporal punishment, the punishment of death; partly with a view of giving the lord an opportunity of ridding himself of a race of vassals tainted by an hereditary stain; partly in order to complete the destruction of the delinquent’s political as well as natural existence. The punishment of forfeiture, being the original punishment, still continued to give denomination to the complex mass of punishment of which it now constituted but a part. The word felony now came to signify a punishment, viz. the complex mode of punishment, of which that simple mode of punishment, which anciently stood annexed to every delinquency a feudatory could incur, was a main ingredient.
At this period of its history, when the above was its signification, the word felony was, as a part of the Norman jurisprudence, imported into this country by the Norman conquerors; for among the Saxons there are no traces of its having been in use. At this period, it stood annexed only to a few crimes of the grossest nature — of a nature the fittest to strike the imagination of rude and unreflecting minds, and these not very heterogeneous. Theft, robbery, devastation when committed by the ruinous instrument of fire, or upon the whole face of a country with an armed force; these, and homicide, the natural consequences of such enterprises, or of the spirit of hostility which dictated them, were included by it. At this time, the import of the word felony was not, either as the name of a punishment or as the name of an offence, as yet immeasurably extensive. But lawyers, by various subtleties, went on adding to the mass of punishment, still keeping to the same name. At the same time, legislators, compelled by various exigencies, went on adding to the list of offences punishable by the punishment of that name; till at length it became the name not of one, but of an incomprehensible heap of punishments; nor of one offence only, but of as many sorts of offences almost as can be conceived. Tell me now that a man has committed a felony, I am not a whit the nearer knowing what is his offence: all I can possibly learn from it is, what he is to suffer. He may have committed an offence against individuals, against a neighbourhood, or against the state. Under any natural principle of arrangement, upon any other than that which is governed by the mere accidental and mutable circumstance of punishment, it may be an offence of any class, and almost of every order of each class. The delinquents are all huddled together under one name, and pelted with an indiscriminating volley of incongruous, and many of them, unavailing punishments.
Felony, considered as a complex mode of punishment, stands at present divided into two kinds: the one styled Felony without benefit of Clergy, or, in a shorter way, Felony without Clergy, or as capital punishment is one ingredient in it, Capital Felony; the other, Felony within benefit of Clergy, Felony within Clergy, or Clergyable Felony. The first may be styled the greater — the latter, the lesser felony. There are other punishments to which these are more analogous in quality, as well as in magnitude, than the one of them is to the other. Such is the confusion introduced by a blind practice, and, as the consequence of that practice, an inapposite and ill-digested nomenclature.
How punishments so widely different came to be characterized in the first place by the same generic name, and thence by specific names, thus uncouth and inexpressive, shall be explained by and by, after we have analyzed and laid open the contents of the greater felony, of which the other is but an off-set detached from the main root.
The Christian religion, ere yet it had gained any settled footing in the state, had given birth to an order of men, who laid claim to a large and indefinite share in the disposal of that remote, but boundless mass of pains and pleasures, which it was one main business of that religion to announce. This claim, in proportion as it was acquiesced in, gave them power: for what is power over men, but the faculty of contributing in some way or other to their happiness or misery? This power, in proportion as they obtained it, it became their endeavour to convert (as it is in the nature of man to endeavour to convert all power) into a means of advancing their own private interest; — first, the interest of their own order, which was a private interest as opposed to the more public one of the community at large; and then of the individuals of that order. In this system of usurpation, a few perhaps had their eyes open; but many more probably acted under the sincere persuasion, that the advancement of their order above that of others, was beneficial to the community at large. This power, in its progress to those ends, would naturally seek the depression, and by degrees the overthrow, of the political power of any other that opposed it. These operations, carried on by an indefinite multitude of persons, but all tending to the same end, wore the appearance of being carried on in concert, as if a formal plan had been proposed and unanimously embraced by the whole clergy, to subdue the whole body of the laity: whereas, in fact, no such plan was ever universally concerted and avowed, as in truth there needed none. The means were obvious — the end was one and the same. There was no fear of clashing: each succeeding operator took up the work where his predecessor had left off, and carried it on just so far as interest prompted and opportunity allowed.
In pursuance of this universal plan, not concerted, but surer than if it had been the result of concert, were those exemptions laid claim to, which, by a long and whimsical concatenation of causes and effects, were the means of breaking down the punishment of felony into the two species of it that now subsist.
The persons of these favoured mortals, honoured as they pretended they were by a more immediate intercourse with the divinity, and employed as they were incessantly in managing the most important, and indeed only important concerns of mankind, were of course to be accounted sacred— a word of loose, and therefore the more convenient, signification, importing, at bottom, nothing more than that the subject to which it was attributed, was or was not to be accounted an object of distant awe and terror. They were therefore not to be judged by profane judgments, sentenced by profane mouths, or touched, in any manner that was unpleasant to them, by profane hands. The places wherein that mysterious intercourse was carried on, imbibed the essence of this mysterious quality. Stones, when put together in a certain form, became sacred too. Earth, within a certain distance round about those stones, became sacred too. Hence the privilege of sanctuary. In short, the whole of the material as well as intellectual globe became divided into sacred and profane; of which, so much as was sacred was either composed of themselves, or become subjected to their power. The rest of it lay destitute of these invaluable privileges, and, as the name imports, tainted with a note of infamy.
I pass rapidly over the progress of their claim of exemption from profane judicature: the reader will find it ably and elegantly delineated in Sir W. Blackstone’s Commentaries.
As to the causes, those which come under the denomination of felonies are the only ones with which at present we have to do. Contining our consideration, therefore, to these causes: as to persons, it was first claimed, one may suppose, for those of their own order — by degrees, for as many as they should think fit, for that particular purpose, to recognise as belonging to that order. By degrees, the patience of profane judges was put to such a stretch, that it could hold no longer; and they seem to have been provoked to a general disallowance of those exceptions, which had swelled till they had swallowed up in a manner the whole rule. This sudden and violent reformation, wearing the appearance of an abuse, the clergy had influence enough in the legislature to procure an act* to put a stop to it. By this act it was provided, that all manner of clerks, as well secular as religious, which shall be from henceforth convict before the secular justices, for any treasons or felonies touching other persons than the King himself, or his Royal Majesty, shall from henceforth freely have and enjoy the privilege of Holy Church, and shall be, without any impeachment† or delay, delivered to the Ordinaries‡ demanding them.
This statute, one should have thought, would have been sufficiently explicit, on the one hand, to secure the exemption to all persons in clerical orders; so, on the other hand, to exclude all persons not possessed of that qualification. To prove a person entitled to the exemption, the obvious and only conclusive evidence was the instrument of ordination. But the different ranks of persons who were all comprised under the common name of clerks, and as such partook more or less of the sacred character, were numerous; and some of these seem to have been admitted to their offices without any written instrument of ordination. Whether this omission was continued on purpose to let in a looser method of evidence, or whether it was accidental, so it is that the clergy had the address to get the production of that written evidence dispensed with. In the room of it, they had the address to prevail on the courts to admit of another criterion, which, ridiculous as it may seem at this time of day, was not then altogether so incompetent: “Orders,” they said, or might have said, “may be forged, or may be fabricated for the purpose; but as a proof that the man really is of our sacred order, you shall have a proof that can neither be forged nor fabricated; he shall read as we do.” The book was probably at first a Latin book — the Bible, or some other book made use of in church service. At that time, few who were not clergymen could read at all, and still fewer could read Latin. And the judges, if they happened to see through the cheat, might in some instances, perhaps, not be sorry to connive at it, in favour of a man possessed of so rare and valuable a qualification. But one book was easily substituted for another: a man might easily be tutored so as to get by rote a small part of a particular book; and as society advanced to maturity, learning became more and more diffused. We need not wonder, therefore, if by the time of Henry VIIth, it was found that as many laymen as divines were admitted to the ecclesiastical privilege — I should suppose a great many more, for there is something in the ecclesiastical function, that in the worst of times will render them less liable than others of the same rank and fortune to fall into open and palpable enormities. A statute,∥ therefore, was made to apply a remedy to this abuse; and what would one imagine was that remedy? To oblige persons, claiming the benefit of clergy, to produce their orders? No; but to provide, that persons claiming it, and not being in orders, should not be allowed it more than once; and that all persons who had once been allowed it, should have a mark set upon them, whereby they might be known. Real clergymen — clergymen who had orders to produce, were by an express provision of the statute, entitled to claim it toties quoties, as often as they should have need, which privilege they have still.
When a felon was admitted to his clergy, he was not absolutely set free, but delivered to the ordinary. The great point then was, if we may believe lay judges, who, it is to be confessed, are not altogether disinterested witnesses, to prove him innocent; for this tended to discredit the profane tribunal. This business of proving him innocent was called his purgation. If this were impracticable, he was put to penance; that is, subjected to such corporal punishment as the ordinary thought proper to inflict upon him, which we may imagine was not very severe. Thus it was that the clergy contrived to bind even the most stubborn spirits under the yoke of their dominion: the honest and credulous by their fears; the profligate, though incredulous, by their hopes.
Circumstances, however, are not wanting, which tend pretty strongly to make it probable, that when once a man got into the hands of the clergy, he almost always stood the purging, and proved innocent; and it is what the lay judges seem to have taken for granted would be the case of course. When, therefore, they made a point of making the offender suffer the train of punishments that stood annexed to acknowledged guilt, (death excepted, which was too much for them to attempt) they knew no other way of compassing it, than by insisting on his not being admitted to make purgation. These punishments, the imprisonment excepted, consisted altogether of forfeitures and civil disabilities; penalties with which the ecclesiastical superior had nothing to do, and which it lay altogether within the province of the temporal judge to enforce. One should have thought, then, it would have been a much less apparent stretch of authority in the latter, to give effect to the proceedings of his own judicature, than to lay a restraint on the ecclesiastical judge in the exercise of what was acknowledged to be his. But it were too much to expect anything like consistency in the proceedings of those rude ages. The whole contest between the temporal judge and the spiritual was an irregular scramble, the result of which was perpetually varying, according to the temper of individuals and the circumstances of the time.
By the time of Queen Elizabeth it came to be generally understood that purgation, which originally meant trial, was synonymous to acquittal.* This is so true, that when by a statute of that reign, purgation came to be abolished,† the legislature, instead of appointing a trial, appointed punishment. Persons claiming the benefit of clergy, instead of being delivered to the ordinary to make purgation, were now, after being burnt in the hand, to be forthwith delivered out of prison, unless the temporal judge should think proper to sentence them to imprisonment, which he was now for the first time empowered to do, for any time not exceeding a year.
It will here be asked, what was done with the pecuniary punishments, the forfeitures, the corruption of blood, and the disabilities? The answer is, nothing at all — they were never thought of. However, by one means or other, there is now an end of them. The legislator neither then nor since has ever opened his mouth upon the subject. But the judge, drawing an argument from that silence, has opened his, and construed them away.
This bold interpretation is a farther proof how entirely the ideas of purgation had become identified with that of acquittal. When a man was admitted to make purgation, he was acquitted: by that means he was discharged from these pecuniary penalties. Now, then, that the legislature has appointed that in the room of going free, the delinquent may now be punished by a slight punishment, and that not of course, but only in case the judges should think fit to order it of their own accord, we cannot, said the judges, suppose that it meant to subject him to a set of punishments so much severer than those it has named. Therefore, as to all but these, coming in place of an acquittal, we must look upon it as a pardon. Having, by this chain of reasoning, got hold of the word pardon, they went on applying it to other purposes in a very absurd manner; but, as we have already had occasion to observe, with a beneficial effect.
One would imagine, that being to suffer nothing, (what has been mentioned only excepted) first, because he was acquitted, next, because he was pardoned, there was an end of all pecuniary penalties, of the one species of forfeiture as well as the other. This, however, neither was nor is the case. A man did then, and does still, continue subject to the forfeiture of his personal estate. The reason of this is of true legal texture, and altogether characteristic of ancient jurisprudence. Forfeiture of real estate is not to take place till after judgment: forfeiture of personal estate, without the least shadow of a reason for the difference, is to take place before judgment; to wit, upon conviction. Now, ever since the days of Henry VI., it has not been the way to admit a man to plead his clergy till after conviction. Now, then, if a man comes and pleads his clergy, whatever goods he had, the king has got them. This being the case, having had your clergy, you are innocent, or, what comes to the same thing, you are forgiven. All this is very true; but as to your money, the king, you hear, has got it, and when the king has got hold of a man’s money, with title or without title, such is his royal nature, he cannot bear to part with it; for the king can do no man wrong, and the law is the quintessence of reason. To make all this clear, let it be observed there is a kind of electrical virtue in royal fingers, which attracts to it light substances, such as the moveables and reputed moveables of other men; there is, moreover, a certain glutinous or viscous quality, which detains them when they have got there.
Such are the grounds upon which the forfeiture of personal estate, in cases of clergyable felony, still continues to subsist.
This act gave the finishing stroke to the abusive jurisdiction of the clergy. The still more abusive exemption remained still, but so changed and depreciated by a lavish participation of it with the laity, that its pristine dignity and value was almost entirely obliterated. By the turn they had given to it, it was originally an instrument of unlimited dominion over others: it was now sunk into a bare protection, and that no longer an exclusive one, for themselves.
At last came the statute of Queen Anne,* which gives the benefit of clergy to all men whatsoever, whether they can read, or cannot. This, together with a statute of the preceding reign,† which had already given the same benefit to all women, gave quite a new import to the phrase. In words, it confirmed and extended the abusive privilege; in reality, it abolished it. It put the illiterate altogether upon a footing with the literate; providing, at the same time, that in the case of the offences to which it extended, both classes alike should suffer, not the punishment which the unprivileged, but that which the privileged, had been used to suffer before.
Since then, to allow the benefit of clergy to any offence, is to punish all persons who shall have committed that offence, in the same manner as lettered persons were punished before: it is to punish in a certain manner all persons for that offence. To take away this benefit, is to punish in a certain other manner, much more severe, all persons for that offence. The difference between the having it and the taking it away, is now the difference between a greater and a lesser degree of punishment: the difference formerly was the allowing, or not allowing, an oppressive and irrational exemption.
But these entangled and crooked operations have been attended with a variety of mischiefs, which are not by any means cured as yet, and of which scarce anything less than a total revision of the criminal law can work a total cure. Such a veil of darkness, such a cobweb work of sophistry, has been thrown over the face of penal jurisprudence, that its lineaments can scarcely be laid open to public view but with great difficulty, and with perpetual danger of mischief.
Of the mischief and confusion that has thus been produced, I will mention one instance, which will probably be thought enough.
In a statute of Henry VIII,‡ by a strange caprice of the legislature, the benefit of clergy was taken away in the lump from all offences whatever, which should happen to be committed on the high seas. He might as well have said, or in such a county, or by men whose hair should be of such a colour. In point of expediency, of a provision like this, one knows not what to make. Considered with reference to other parts of the legal system, it is reasonable, as doing something towards abolishing an unreasonable distinction. Considered in the same point of view, it is unreasonable, as making that abolition no more than a partial one, and grounding it, as far as it went, on a circumstance totally unconnected with the mischievousness of the offence. Considered by itself, it is again unreasonable, as tending to subject to the punishment of death for a great many offences, a great many persons for whom a less punishment might suffice.
In point of fact, however, what the legislature meant by it is clear enough: it meant that all men, without exception, privileged persons as well as others, should suffer death and so forth, who should be guilty of any kind of felonies upon the high seas, instead of their being made, some of them, to suffer death, others a punishment beyond comparison less severe. Would any one imagine what has been the effect of this provision? The effect of it has been, that these privileged persons, instead of suffering death, have suffered no punishment at all: yes, absolutely no punishment — not even that slight degree of punishment to which they before were subject. Now the case is, that at present, if one may be indulged in a solecism established by the legislature, all persons are privileged; so that now, all persons who may think proper to commit clergyable felonies on the high seas are absolutely dispunishable. This situation of things, in itself, is not altogether as it ought to be; but the means whereby it has been brought about are still worse. When a man is indicted of a clergyable offence within that jurisdiction, let his guilt be ever so plainly proved, the constant course is, for the judge to direct the jury to acquit him.* The man is proved to be guilty, in such a manner that no one can make a doubt about it. No matter; the judges direct the jury to say upon their oaths that he is not guilty.
In the ecclesiastical tribunal we have above been speaking of, things were so ordered, that, according to the author of the Commentaries, “felonious clerks” were not constantly, but “almost constantly” acquitted. I do beseech the reader to turn to that book, and observe in what energetic terms (partly his own, partly adopting what had been said on the same subject by Judge Hobart) the learned author has chosen to speak of this unjustifiable practice:† —“Vast complication of perjury and subornation of perjury — solemn farce — mock trial — good bishop — scene of wickedness — scandalous prostitution of oaths and forms of justice — vain and impious ceremony — most abandoned perjury.” Such are the terms he uses; — to the reader it is left to make an application of them.
As to felony without benefit of clergy, I will, in the first place, state the ingredients of which this mode of punishment is compounded.
Of punishments included under the title of felony without benefit of clergy, we must distinguish, in the first place, such as are made to bear upon the proper object — punishments in personam propriam; and in the second place, such as are thrown upon the innocent — punishments in personam alienam.
Of punishments in personam propriam, it includes the following:—
1. A total forfeiture of goods and chattels, whether in possession or in action at the time of the forfeiture taking place. It is a sweeping punishment of the pecuniary kind. It takes place immediately upon conviction; that is, upon a man’s being found guilty — and does not wait for judgment; that is, for sentence being pronounced upon him.
2. Forfeiture of lands and tenements. This also is a sweeping punishment of the pecuniary kind. It does not take place till after judgment. This and the other forfeiture between them include the whole of a man’s property, whether in possession or in action at the time of the forfeiture taking place. If he does not lose it by the one, he loses it by the other.
3. The corporal punishment of imprisonment till such time as the conclusive punishment is executed upon him. The length of it depends partly on the judge, partly on the king.
4. The disability to bring any kind of suit. This operates as a punishment in such cases only in which a long interval, as sometimes happens, intervenes between the sentence and the actual infliction of the ultimate punishment.
5. The corporal punishment of death, viz. simple death by hanging. As this punishment in general puts a speedy period to all the rest, the dwelling upon the effect of any other is what may, at first sight, appear useless: but this is not absolutely the case; for the execution of this punishment may, at the pleasure of the king, be suspended for any length of time, and in some instances has actually been suspended for many years.‡
Thus much for punishment in propriam personam. Punishments in alienam personam included under it, are the following; some of them are instances of transitive, others of merely random punishment:—
His heirs-general, that is, that person or persons of his kindred who stand next to him, and so to one another in the order of succession to real property unentailed, forfeit all property of that denomination which he had enjoyed, and which, without an express appointment of his to the contrary, they would have been entitled to from him. This results as a consequence of the doctrine of corruption of blood: this is an instant forfeiture: it is a sweeping punishment of the pecuniary kind upon the heir. It may amount to a forfeiture, total or partial, of all the immoveable property the heir would be worth, or to no forfeiture at all. If, previously to the commission of the offence, the offender had settled upon his heir-apparent the whole or any part of what property he had of the kind in question, this the heir will not be deprived of.
2. His heir, as before, forfeits his hope of succession to all such real property as he must make title to through the delinquent, as standing before him in the order of consanguinity to the person last seized. This is a remote contingent forfeiture — another pecuniary punishment of the sweeping kind. In this the uncertainty is still greater than in the former case.
3. Any creditors of his, who have had real security for their debts, forfeit such security, in case of its having been granted to them subsequently to the time of the offence committed. This, where it takes place, is a fixed punishment of the pecuniary kind. It is uncertain as to the person; but if there be a person on whom it falls, it is certain as to the event.
4. Any persons who may have purchased any part of his real property, forfeit such property, in case of this purchase having been made by them subsequently to the time of the offence. This, again, is a fixed punishment of the pecuniary kind. It is uncertain whether it shall fall upon any person, because it is uncertain whether there be a person so circumstanced; but if there be, it is certain as to the event of its falling.
5. Any persons who hold lands or tenements of him under a rent, are obliged to pay over again, to the person on whom the forfeiture devolves, whatever they may have paid to the delinquent subsequently to the time of the offence.
These four last denominations of persons are made to suffer in virtue of the doctrine of back-relation. According to legal notions, it is the delinquent that suffers, by the forfeiture being made to relate back to the time of the offence: as if it were a new suffering to a man to be made to have parted with what he had already parted with of his own accord. In plain English, it is the people themselves — the tenants, purchasers, and creditors, that suffer: it is they who forfeit, and not he.
Again, by virtue of the forfeiture of what is called his personal property, the following denominations of persons are made to suffer:—
1. His wife: by being deprived of whatever she would have been entitled to under his will, or under the law of distributions.
2. His children, or others next of kin: by losing what they might, in the same manner, have become entitled to.
3. His creditors: by losing all claim upon his personal estate. By this forfeiture, added to what takes place in the case of real estate, all his creditors whatever are defrauded; such only excepted as may have been fortunate enough to have obtained a real security previous to the commission of the offence.
We now come to Felony within Clergy. The mass of punishments included within this title are much less various, as well as less severe.
Of punishments in propriam personam, it includes only the first and third of those which are included under the other species of felony.
In the room of the fifth and last punishment, the punishment of death, there is one that takes place, or rather is said to take place, of course: I mean, marking in the hand.* Others there are, which, besides the former, take place optionally, at the discretion of the judge; conjunctively, with respect to the three former — disjunctively, with respect to one another.
This punishment of marking is now become a farce. It is supposed to be inflicted in open court, immediately after the convict, in order to exempt himself from the punishment of the other felony, has been made — if a woman, to plead the statute — if a man, to tell the solemn lie that he is a clerk. The mark to be inflicted is, according to the statute, to be the letter T, unless the offence be murder, in which case it is to be an M; murder, at that time, not as yet having been taken out of the benefit of clergy: as it has, however, since, the mark ought now to be that of a T in all cases. The part to be marked is the brawn of the left thumb; so that if a man happens to have lost his left thumb, he cannot be marked at all; or, if afterwards he chooses to cut it off, he may prevent its answering the purpose it was meant to answer, that of distinguishing him from other men.
The instrument originally employed was a heated iron, with a stamp upon it of the shape of the letter to be marked. To the judges of that time, this was the only expedient that occurred for marking upon the human skin such a mark as should be indelible. At present, the practice is to apply the iron, but it is always cold: this is what is called burning with a cold iron, that is, burning with an iron that does not burn; in consequence, no mark at all is made. The judge presides at this solemn farce: by no one is it complained of; by many it is approved; it is mildness, humanity: it is true that the law is eluded, and turned into ridicule; but the judge spares himself the pain of hearing the cries of a man to whose flesh a red-hot iron is applied. It may be asked, why do not the judges propose that the law should be made conformable to the practice? I cannot tell.
The judge that first disregarded the statute was guilty of the assumption of illegal power: he who should now have the courage to obey it, might now affix the prescribed mark without putting the delinquent to any considerable pain.†
The other punishment, which in all cases of felony within clergy, may, at the discretion of the judge, be superadded or not to those which we have seen, are those of imprisonment and transportation.
For the second offence of a clergyable felony, capital felony is the punishment.*
Clerks in orders are alone exempted:† peers are not: women are expressly subjected to it. It is certainly a distinction highly honourable to the clergy, that they may go on pilfering, while other people are hanged for it.
Why a man, having been punished for one act of delinquency, should be punished more than ordinarily for a second act of the same species of delinquency, or even for any other offence of the same species of delinquency, there is at least an obvious, if not a conclusive reason. But why, when a man has been punished by a certain mode of punishment, and then commits an offence as different as any offence can be from the former, the punishment for this second offence is, because it happens to be the same with that for the first, to be changed into a punishment altogether different, and beyond comparison more penal, is what it will not, I believe, be easy to say. Is it because the first mode of punishment having been tried upon a man, the next above it, in point of severity, is that of capital felony? That is not the case; for præmunire is greatly more penal than clergyable felony. I mention this as being impossible to justify, not as being difficult to account for, since nothing better could consistently be expected from the discernment of those early times.
There is one thing which a clergyable felon does not forfeit, and which every other delinquent would forfeit for the most venial peccadillo, and that is reputation: I mean that special share of negative reputation which consists in a man’s not being looked upon as having been guilty of such an offence. This share of reputation the law, in the single instance of clergyable felony, protects a delinquent, in so far forth as it is in the power of law, by brute violence, to counteract the force of the most rational and salutary propensities. If a man has stolen twelve-pence, and been convicted of it, call him a thief and welcome. But if he had stolen but eleven-pence halfpenny, and been convicted of it, and punished as a felon, call him a thief, and the law will punish you. This has been solemnly adjudged.
I say convicted and punished as a felon; for if he has not been convicted of it, in virtue of the general rule in case of verbal defamation, you may call him so if you can prove it; but when the law, by a solemn and exemplary act, has put the matter out of doubt, then you must not mention it. Would any one suspect the reason? It is because the statute which allows the benefit of clergy operates as a pardon. It has the virtue to make that not to have been done which has been done; and it was accordingly observed, that a man could no more call another thief who had been punished for it in this way, (thief say they in the present time) than say he hath a shameful disease when he had had it, and has been cured of it.‡
It is there also said, with somewhat more colour of reason, though in despite of the last-mentioned rule, “that there is no necessity or use of slanderous words to be allowed to ignorants,” and that, though the arresting of a pardoned felon, by one who knows not of the pardon, may be justifiable, because this is in “advancement of justice; yet so it is not to call him thief, because that is neither necessary, nor advanceth nor tends to justice.” He who said this knew not, or did not choose to know, how mighty is the force, and how salutary the influence, of the moral sanction; how much it contributes to support, and in what a number of important instances it serves to controul the caprices, and supply the defects, of the political. It was perhaps Sir Edward Coke — a man who, from principle, was a determined enemy, though, from ill humour, upon occasion an inconsistent and unsteady friend to political liberty — who in his favourite case, de libellis famosis, has destroyed, as far as was in his power to destroy, the safeguard of all other liberties, that of the press; — proscribing all criticism of public acts; silencing all history; and vying in the extent of his anathemas with the extravagance of the most jealous of the Roman Emperors.
The punishment of Præmunire∥ consists in the being “put out of the King’s protection,” and “in the forfeiture of lands and tenements, goods and chattels;” but such is the uncertainty of English law, that some add to the above, imprisonment during the King’s pleasure, and others say for life. Sir Edward Coke is for adding loss of credibility: he might as well have added, loss of ears; but I do not find that this conceit has been taken up by anybody else.
The offences to which this punishment has been applied are as heterogenous as any that can be imagined. The offence to which it was first applied was an offence against government; since that, besides a multitude of other offences against government, it has been applied to various offences against the property, against the personal liberty of individuals, and against trade!*
What it is that in such a variety of laws should have tempted the legislature, instead of the known and ordinary names of punishment, to devise a new and unexpressive name, to which no meaning whatever could be annexed, without rummaging over a confused parcel of old French statutes, is not easy to assign. There is nothing gained by it in any way, not in point of brevity; for in one of the statutes in which it is described with the most conciseness, I find more words are taken up by this uncouth description, than would be by the plain one: there is nothing gained by it in point of precision; for the word has no signification whatever, but by reference to the words of the old statute, and consequently cannot be more precise than they are.
The only recommendation I can find for it is, that it is a Latin word; added to the notion, perhaps, that, as being less intelligible than most other names of punishments, it might be more tremendous.
If this has been the design, it has been in some measure answered. Terrible, indeed, is the name of Præmunire; it is become a kind of bugbear, in which shape it has descended even among the lowest mob. It is used as synonymous with a scrape; not that the sort of persons last mentioned have any much clearer idea of the particular sort of scrape, than those have who bring others into it by solemn acts of legislation.
The punishment known in practice by the name of Outlawry, consists of the following ingredients:—
1. Forensic disability, which may be called simple outlawry.
2. Forfeiture of personal estate.
3. Forfeiture of the growing profits of the real estate.
4. Imprisonment, &c.
This is the punishment inflicted for the offence of absconding from justice, in all cases, except where the punishment for the principal offence amounts to felony: in this case, a man against whom a sentence of outlawry is pronounced, is punished as if he had been convicted of the principal offence.
As the offence of absconding is a chronical offence, the punishment applied to it should be a chronical punishment, such an one as, being made to cease upon the cessation of the offence, may operate only as an instrument of compulsion. All these punishments are capable of being made so: but none are so upon the face of them; none were so originally. They are by this time, however, rendered so in great measure by modern practice, which has corrected the inordinate severity of the original institution.
This punishment applies in most cases, but not in all cases: in all cases where the prosecution for the original offence was in the criminal form; that is, in other words, in all criminal suits: it applies in most, but not in all civil suits. In the same civil suit, it applies or does not apply, according as the suit happens to be commenced before one court or another. In the same suit, and that carried on in the same court, it does or does not apply, according as the suit happens to have been commenced by one kind of jargon or another: all this without the least relation to the merits.
The punishment of forensic disabilities is applied to a multitude of offences; namely, to all those which are punished either by capital felony, or præmunire, or excommunication. In felony, it is useless, because the effect of it is merged in the punishment of death. In præmunire, it is justifiable, in as far as the punishment of total and perpetual impoverishment is an eligible mode of punishment, for of this it makes a necessary part. In excommunication, it is ineligible, on account of its inequality. To make it answer in an equable manner the purpose of impoverishment, is impracticable, for want of the punishment of forfeiture, of which it can come in only as an appendage.
Taking it by itself, and laying aside what is necessary to make it answer the purpose of impoverishment, it is superfluous when added to the punishment of imprisonment.
Whatever may be the offences cognizable in the ecclesiastical court, either corporal punishment is enough for them without pecuniary, or it is not. If it be enough, simple outlawry in addition to it is too much; if not, it is too little. All this is upon the supposition that the delinquent is forthcoming for the purpose of undergoing imprisonment.
When a man absconds, and has no property in possession, or none that is sufficient to answer the demand upon him, in this case, and in this only, the punishment of simple outlawry is expedient. Why? not because it is eligible in itself, but because it is the only one the case admits of. When a man has no visible property in his own country, and has made his escape into another, generally speaking, his own country has no hold of him. This may happen, suppose in nine instances out of ten; but in the tenth, it may happen that he may have a debt due to him, which he may want the assistance of the laws of his own country to recover. If this debt be more in value to him than what is equivalent to the punishment he would be likely to suffer for the original offence which made him fly, he will return and submit to justice. The punishment of simple outlawry in this case will answer its purpose. It is eligible, therefore, in this case, because it has some chance of compassing its end, and no other punishment has any.*
To this mode of punishment, the objection of inequality applies with peculiar force. The fund out of which a man who has a fund of his own subsists, is either his labour, or his property. If he has property, it consists either in immoveables, or in moveables. If in immoveables, it is either in his own hands, or in those of other persons: if in moveables, it is either in public hands, or in private: if in private, either in his own hands, or in those of other persons.
A man who subsists by his labour, is in general scarcely at all affected by this punishment. He receives his pay, if not before he does his work, at least as soon as a small quantity of it is done.
A man whose fund of subsistence consists in immoveable property, is very little affected by this punishment, if that property is in his own hands. The utmost inconvenience it can subject him to, is the obliging him to deal for ready money. If his property is in the funds, he is not at all affected. There seems no reason to suppose that those who have the management of those funds, would refuse a man his dividend on the ground of any such disability. They would have no interest in such a refusal; and the importance of keeping up public credit would probably be a sufficient motive to keep them in this instance from departing from the general engagement.
If a man’s property consists in moveable property which is in his own hands — for instance, stock in trade, it affects him indeed, but not very deeply. The utmost it can do, is to oblige him to deal for ready money; to preclude him from selling upon credit. It does not preclude him from buying upon credit, since, though others are not amenable to him, he is to others.
It is only where a man’s property consists in credits — for example, in immoveables in the hands of a tenant, in a sum due for goods sold on credit, or in money out upon security, that it can affect him very deeply. Of such a man it may be the utter ruin.
In this case, whether a man suffer to the extreme amount, or whether he suffer at all, depends upon what? upon the moral honesty of those he happens to have to do with.
There are two circumstances, therefore, on which the quantum of this mode of punishment depends: 1st, The nature of the fund from whence he draws his subsistence; 2d, The moral honesty of the people he happens to have to do with. But neither of these circumstances is any ways connected with the degree of criminality of any offence for which a man can be thus punished. Of two men, both guilty, and that in the same degree, one may be ruined, the other not all affected. The greater punishment is as likely to fall upon the lesser offender as upon the greater: the lesser upon the greater offender, as upon the lesser.
Another objection applies to this mode of punishment, on the score of immorality. The punishment being of a pecuniary nature, there is a profit arising out of it, which accordingly is to be disposed of in favour of somebody. And in whose favour is it disposed of? in favour of any one, who, having contracted an engagement with the delinquent, can, for the sake of lucre, be brought to break it.
It may be said, that the engagement being by the supposition rendered void, there is no harm in its being broken. True; it is void, as far as concerns the political sanction, but it is not void by the moral. All that the law does is not to compel him to perform it; but the interests of society require, and, accordingly, so does the moral sanction require, that a man should be ready to perform his engagement, although the law should not compel him. If a man can be brought in this way to break his engagement, it is a sign that the power of money over him is greater than that of the moral sanction. He is therefore what is properly termed an immoral man; and it is the law that either has begotten in him that evil quality, or at least has fostered it.
The dispensations, therefore, of the political sanction, are, in this case, set at variance with those which are, and ought to be, those of the moral sanction. It invites men to pursue a mode of conduct which the moral sanction, in conformity to the dictates of utility, forbids.
Various and manifold are the evils which the punishment of excommunication inflicts, or proposes to inflict: various are the sources from whence they flow. It does not confine itself to the political sanction: it calls in, or makes as if it would call in, the two others to its assistance.
Of excommunication, there are two species, or degrees — the greater and the lesser. The greater contains all that the lesser does, and something more. I will first, then, give an account of those that are contained in the lesser, and then take notice of those that are peculiar to the other.
Those contained in the lesser are as follows:—
1. Imprisonment — the time unlimited, depending on the good pleasure of the judge: the severity of it is determined by the circumstance of its being in the common jail.
2. Penance, as a condition to the termination of the other punishment. By penance is meant, a corporal punishment of the ignominious kind. The particular manner of inflicting it shall be considered hereafter.
3. In lieu of the penance, commutation money. The quantum of it is not limited in a direct manner, but is in an indirect manner: it cannot be more than a man chooses to give, in order to avoid the corporal penance.
These two last are accidental ingredients in this complex mass of punishment. Their infliction or omission depends, in some measure, upon the will of the prosecutor. Those which follow, are inseparable.
4. Disability to sue, either in a court of law or equity. This is a punishment of a pecuniary nature, contingent in its nature, and uncertain as to time.
5. Disability of acting as an advocate,* or as an attorney, or procurator, for another:† that is, I suppose, in the ecclesiastical courts, and not in any other. This is a punishment of the class of those that affect a man’s condition: in the present instance, it affects a man chiefly on a pecuniary account.
6. Disability of acting as a juryman.‡
7. Disability of being presented to an ecclesiastical benefice:∥ of this, the same account may be given as of the last disability but one.
8. Disability of bringing a suit, or action, as an executor.§ This is a punishment in alienam personam; affecting those who have a beneficial interest under the will.
9. Incapacity of being constituted or continued an administrator; or, at least, danger of being subjected to that disability.
10. Disability of being a witness. This, likewise, is another punishment in alienam personam; affecting those persons to whom this evidence, if given, would be beneficial in respect of their lives, fortunes, liberties, and every other possession that is in the protection of the law.
11. The being looked upon as a heathen and a publican. This, I suppose, is meant as a sort of infamy.¶
12. Exclusion from all churches: this is a species of personal restraint, that involves in it consequences that belong to the religious sanction.
13. Exclusion from the benefit of the burial service. I do not know under what class to rank this punishment: I do not very precisely know what benefit it is to a man, after he is dead, to have the service read over his body: if it be anything, it belongs to the religious sanction.
14. Exclusion from the benefit of the sacraments of baptism and the Lord’s Supper: this belongs altogether to the religious sanction.
So much for the lesser excommunication: the greater adds two other circumstances to the catalogue.
1. Exclusion from the commerce and communion of the faithful.*
2. Disability of making a Will.† This is a punishment that affects the power of the party; viz. in the present case, the investitive power performable in a particular manner, with respect to the ownership of such property as he shall die entitled to. In as far as the power of making a will includes that of appointing a guardian to a child, as also that of an executor to manage the property of a person of whom the party in question was executor, it is a punishment in alienam personam: the child may suffer for want of a proper guardian; the persons interested in the effects of the first testator may suffer for want of a proper person to manage those effects.
This is the mode, and the only mode of punishment, inflicted by those courts that go by the name of ecclesiastical, or spiritual courts. This they are forced to make serve for all occasions; they have neither less nor greater: it is the only punishment they have. When this punishment is pronounced, they have exhausted their whole penal code. If its brevity be its recommendation, it must be confessed that it has no other. Let us consider a little more particularly the punishments of which it is composed. Of imprisonment, nothing in particular need be said at present.
The punishment of penance demands more attention. It consists in the penitent being exposed, bare-headed and bare-legged, with a white sheet wrapped round the body, either in the parish church, or in the cathedral, or in the public market,‡ there to pronounce a certain form of words containing the confession of his crime. This, as has been already observed, is a corporal punishment of the ignominious kind, and might, if defined with precision, be employed with the same advantage as are other punishments of that description. The time at which it should take place, and the duration of the penance, ought to be determined; but there is nothing fixed with regard to them, so that it may continue for several hours, or only for an instant: it may take place before a crowd of spectators, or in the most absolute solitude. Besides this, there is a vast difference between the parish church of a village, and the cathedral of a great city, or the public market of a district. The larger or smaller concourse of spectators will render the punishment more or less severe.
The penitent ought to pronounce a formula containing an acknowledgment of his crime; a different formula ought therefore to be provided for every crime by law. This formula may be pronounced either distinctly or indistinctly: a man can hardly be expected, willingly, to proclaim his own shame. It would therefore be proper that he should only be required to repeat the words, which should be clearly and distinctly pronounced by an officer of justice, as is practised with respect to the administration of oaths. Certain persons, also, should be nominated to preside over the ceremony, and ascertain that everything is done according to law.
Till these points are regulated, this mode of punishment, though good in itself, will always be subject, as it is at present, to the greatest abuses: it will be executed with inequality, and capriciously, according to the condition of the individuals, rather than according to their crimes, and according as the character of the judge is more or less severe.
Penance is the punishment usually imposed, says Dr. Burn, “in the case of incest or incontinency.” These two offences are classed together by the ecclesiastical compiler, and opposed to what he calls smaller offences and scandals. When we consider how far these two first offences are removed from one another, one is astonished to see them classed together, and visited with the same punishment. Far be it from me to treat lightly the exposure of innocence to infamy, the disturbance of domestic felicity, or to degrade the chaste raptures of the marriage bed to a level with the bought smiles of harlots. But there are degrees in guilt, which I see not why it should be meritorious to confound.
It is not often that we hear of this punishment being put in practice: examples of it were more frequent in former times, but now it is most commonly commuted for by the payment of a sum of money.
3. As to the different legal incapacities which form part of this punishment, the objections to which they are liable have been pointed out elsewhere. (See Book IV. Misplaced Punishments.)
4. Part of the punishment consists in the delinquent’s being looked upon, if men think fit to look upon him in that light, as a beathen and a publican.
To try the effect of generals, the only way is to apply them to particulars. A. is not willing, or not able, to pay his proctor’s, or another man’s proctor’s fees: he is in consequence excommunicated. Amongst his other punishments, he is to be looked upon as a heathen or a publican; that is, as being such a sort of man as Socrates, Cato, Titus, Marcus Antoninus, a collector of taxes, or a Lord of the Treasury. The heaping of hard names upon a man might, at one time, have been deemed a punishment; but such legal trifling now-a-days, serves only to render the laws ridiculous.
5. Exclusion from the churches. In our days, an exclusion of this sort shows rather oddly under the guise of punishment. The great difficulty is now not to keep people out of the churches, but to get them in. The punishment, however, was not ill-designed, if it were intended to increase the desire of attending there, by forbidding it — the general effect of every prohibition being to give birth to a desire to infringe it: it affords a presumption, that what is prohibited is in itself desirable, or at least desirable in the opinion of the legislator, or he would not have prohibited it. Such is the natural supposition, when the interdiction relates to an unknown object; but even when it relates to an object which has been tried, and neglected from distaste, the prohibition gives to it another aspect. The attention is directed to the possible advantages of the act: having begun to think of them, the individual fancies he perceives them, and goes on to exaggerate their value: on comparing his situation with that of those who enjoy this liberty, he experiences a feeling of inferiority; and, by degrees, a most intense desire often succeeds to the greatest indifference.
Those who are forward to refer the propensity to transgress a prohibition of any kind to an unaccountable perversity, and unnatural corruption in human nature, as if it were not reconcileable to the known dominion of the ideas of pain and pleasure over the human mind, do an injustice to man’s nature, in favour of their own indolence. Man, according to these superficial moralists, is a compound of inconsistencies: everything in him is an object of wonder; everything happens contrary to what they would expect: strangers to the few simple principles which govern human nature, the account they give of everything is, that it is unaccountable.
With respect to those parts of the punishment of excommunication which belong to the religious sanction, such as exclusion from the sacraments, their most striking imperfection is their extreme inequality: their penal effect depends on the belief and sensibility of the individuals. The blow which would produce torments of agony in one person, will only cause the skin of another to tingle. There is no proportion in these punishments, and nothing exemplary: those who suffer, languish in secrecy and silence; those who do not suffer, make a jest and a laughing-stock of the law in public. They are punishments which are thrown at hazard among a crowd of offenders, without care whether they produce any effect or none.
I speak of these punishments with reference only to the present life; for who is there that supposes that a sentence of excommunication can carry with it any penal consequences in a future state? For what man, reasoning without prejudice, can believe that God hath committed so terrible a power to beings so feeble and so imperfect, or that the Divine justice could bind itself to execute the decrees of blind humanity — that it could allow itself to be commanded to punish otherwise than it would have punished of itself. A truth so evident could only have been lost sight of by an abasement, which could only have been prepared by ages of ignorance.*
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