The Press. — London, England, 1853-08-27 00:00:00

such ingratitude penal by law. Conversely, the offence of a schoolboy who robs an orchard out of mischief and wantonness, rather than desire of gain, is morally a very slight one. But nobody proposes to refuse to the owner of the orchard that protection to which he is entitled, and which he can only receive through the moderate punishment of the thief. Here, Mr. Hill would say, is a ease of gross injustice. You Hog or fine the boy who has slightly infringed the law ; you let go the man who has openly disregarded one of the first of moral duties. The conclusion, in each instance, is one from which no rational thinker can dissent. Cau the principle which has led to that conclusion be wrong? Surely not. What, then, is the solution ? Merely, in our view, this, that offences against public order — that is, offences of which the law takes cogni sauce—are not to be measured by the amount of criminality, real or supposed, which they involve, but by the amount of injury to the public which follows from their commission. This was Bentham 's canon ; and, often as it has been assailed, we believe it will stand the test. If told that it sets up a standard of in nocence or guilt which is to a certain extent artificial, and so far bad, we admit the truth, but we plead the necessity. The alternative rule, that of ascertaining as far as possible the real moral guilt of the criminal, is simply im possible to be applied. For, in order to apply it, you must know the whole history—birth, parentage, education, and mode of living—of the prisoner; and what are you to do, where, as often happens, these cannot be ascertained? We reply, then, to Mr. Hill's first objection in these words, " The law does not attempt to " fix the moral criminality of whom it punishes. " It proportions the penalty to the degree of " injury, direct or indirect, which the crime " committed was calculated to inflict on the " State. Farther than this human justice can " not go ; for to go farther it would be neces " sary to judge men's motives as well as their " acts." The second question raised by Mr. Hill is far more comprehensive, and, indeed, raises doubts which lie at the bottom of our whole penal system. He contends that, the object of punishment being the prevention of crime, that punishment cannot be well fitted for its purpose which, after its infliction has terminated, allows an offender to be let loose again on society, without regard to the cause of his offence, or to the fact whether such cause has been re• moved; and without reference even to the possibility that the offender may have been hardened and rendered worse by the very punishment itself ; or to the fact that, by having lost his character, the real difficulty of his obtaining an honest livelihood may have been increased, and with it, also, the danger of his committing uew offences. _ _ Granted. But are our punishments such ? Under the transportation system, as admi nistered during the last ten years, offenders were not let loose on society. They were not disabled from earning an honest livelihood; they were put out of the way of vicious haunts and companions ; they were watched and guarded long after liberty of action had been restored ; all external circumstances invited them to industry and repelled from crime. What the effect of the new Ministerial scheme may be we do not now inquire ; but, come what may, we have had penal arrangements which were not open to Mr. Hill's very just and grave objection. Our author's remedy for the evil of setting free unreformed criminals is startling from its novelty—more startling, perhaps, from the manner in which it is stated than from the practical change which it embodies. He pro poses that all terms of imprisonment should be left indefinite in point of time, the prisoner being discharged only when the executive authorities shall declare him cured. Lest we should seem to misrepresent, we quote the passage : No one thinks of sending a madman to a lunatic asylum for a certain number of davit, weeks, or months. We con tent ourselves with carefitlly ascertaining that he is unlit to be at large, and that those in whose hands we are about to place him act under doe inspection, and have the know ledge and skill which affonl the best hope for his rare that they will be kind to him, and inflict no more pain than is necessary for his secure custody and the removal of his malady: and we leave it for them to determine when be can safely be liberated. • • • • S • 0 • In truth, had this iorseticc, so coat,' limbic to common sense, the advantage which the sancti on of time and ex perience causes, instead of having to contend with the THE PRESS. hostile feeling almost always attendant on novelty, any one who should propose to abandon such a system, and to enact that, without regard to au offender's moral condition, he should, at the end of a certain Sized period, be let loose again on society, would prcbably be regarded as little better than a lunatic. The question still presents itself, who is to fix the period ? And few will acquiesce in Mr. Hill's suggestion that this vast power — superseding, in fact, that of the judge—shall be vested in an ordinary governor or inspector of gaols. Again—by what means is the fact of cure to be determined ? Here the parallels of the hospital and lunatic asylum fail alto gether. For as no man enters a hospital on compulsion, so no man quits one until re established in health. Nov, if he should decide on doing so, is there any power to restrain him ? The two things can in no wise be compared. For, to make the analogy com plete, it would first be necessary to show that in cases of moral disease, as in those of bodily sickness, the morbid state is accompanied by a consciousness of suffering, and a consequent desire for relief. From this, the logical result of his argument, Mr. Hili does not shrink. He thinks it likely (p. 167) that " the offender " himself, after the excitement had passed " away under which he had committed his " offence, would not unfrequently feel that it " was best for him to be placed for a time " under control." This is surely—to use the mildest phrase—a very optimist view of the subject. Can we rationally frame a penal system on the assumption that criminals will be found to desire their own punislnnent? Between insanity and crime—between the asylum and the prison—there is doubtless a close resemblance. In both the restraint is involuntary. In both, the patient, as Mr. Hill would call a prisoner, has ceased to be a free agent. But the likeness stops here. A lunatic or madman, not restored to the use of his senses, cannot feign sanity—at least. not for any length of time continuously, or with skill enough to deceive practised eyes. A pickpocket or a burglar, on the contrary, may, by professions of repentance, by assumed in dustry, and by orderly conduct, adopted for a time from motives of policy, deceive those who have charge of him into a belief of his real reformation. If any such prospect as that of release—not after a fixed period of sentence, but immediately on the supposed accomplish ment of a change in his disposition and mental habits—were held out, the result would be an immense encouragement to hypocrisy, a slight probable increase in the orderly conduct of prisoners generally, and a total subversion of that wise judicial system according to which latitude and discretion in measuring out punishments is assigned to the judges of the Crown. - -- The error involved in this theory is, as it seems to us, One of principle, and not of admi nistrative detail. Mr. Hill, in tacitly assuming that crime is only a form of mental or moral disease, rejects utterly the penal elements of punishment, and chooses to consider it only as a reformatory process, intended for the good of the individual. He is carried away by his desire to reclaim the offender, and forgets the interests of the community. Again we invoke the authority of Bentham, certainly no anti-reformer, and who dovoted the best years of his life to this question of crimes and punishments. Bentham lays it down as a rule that among the objects of legal punishment the first is example—intimidation of uncon- victed offenders—reformation of the individual convict being only the second. The common sense of mankind, in all ages, has supported this view ; anti we do not apprehend that in practice it will ever be disputed. Mr. Hill's doctrine, we readily admit, is only the ex aggeration of a salutary principle. Our fore fathers erred in the opposite direction. With them the penal or deterring element was every thing—the reformatory process nothing. We have discovered and are amending the error ; but we should not, therefore, rush from ex treme to extreme. Our authors practical recommendations, founded on experience, are much better worth attention than his theory. He advises (1) reformatory schools, as proposed in Mr. Ad derley's bill, in lieu of prisons for juvenile offenders ; (2) sonic kind of surveillance or SATURDAY, supervision to be exercised over the prisoner after the expiration of his sentence—a provi sion more easily recommended than carried out in practice ; (3) in certain cases, the sub stitution for fixed periods of imprisonment of fixed allotments of work—so much to be done before the prison doors are opened. This plan originated with Captain Maconochie, a well-known authority on such subjects. It has the great merit of stimulating industry, rousing instead of paralysing the energies of the prisoner, and saving him from the inanity, approaching to idiocy, which often results from long confinement. The obvious objection to it lies in the difficulty of fixing the amount of work to be done with reference to the bodily strength or weakness of the individual. Thus, a strong man, or a skilled artisan, might des patch in a week what would take his weak or inexperienced neighbour a fortnight. Nor could this inequality be remedied beforehand ; for it is only by actual trial that the strength or skill of each can be known. Having stated the difficulty, we quote with approval equal to that which Mr. Hill bestows upon it the passage in which Captain Maconochie states his theory If we look abroad into ordinary life, we cannot but be struck with the resemblance which our present forms of secondary punishment bear to everything that is in this most enfeeblino and deteriorating, and how directly op posed they are to those forms of adversity which, under the influence of providential wisdom, reform character and invigorate it. Slavery deteriorates—long seclusion date riorates—every condition, in a word, more or less dete riorates, which leaves no choice of action, requires no notice but obedience, affords no stimulus to exertion beyond this, supplies the wants of nature without effort with a view to them, and restores to prosperity, through lapse of time, without evidence that such restoration is deserved. Yet this is our present system of secondary punish ment. What improves, on the contrary, is, a condition of adversity from which there is no escape but by continuous effort, which leaves the degree of that effort much in the individual's own power, but, if he relaxes, his suffering is deepened and prolonged, and it is only alleviated and shortened if he struggles manfully—which makes exertion necessary even to earn daily bread—and something more, prudence, self-command, voluntary economy, and the like, to recover prosperity.—Page 42. _ Mr. Hill objects to capital punishment as useless for the purpose of deterring; as tend• Mg to create, by the sight of death, a morbid desire of bloodshed ; and generally as demo ralising in its effect on those who witness it. He also argues against transportation ; and proposes to retain, as penal agencies, only im prisomnent, tine, and the taking of securities for good conduct. Prison discipline is a subject not in itself attractive, and, until of late, very little consi dered. Not twenty years ago it was held enough if a gaoler maintained a decent show of order within the walls, and kept discipline sufficient to prevent escapes. Instruction, labour, classification of prisoners, were all unknown. These things have sprung up in a single generation, not without grievous mis giviugs anti doubts on the part of many excel lent persons, lest, by removing the most ob vious sources of pain to the criminal, the pe nalties intended to deter from crime should lose their effect. Such apprehensions, not unreasonable, perhaps, on on ti priori view, have been dispelled by the result. Let the gaol buildings be as clean as they may—the food as careffilly prepared—the clothing as good—the ventilation as diligently studied—it is only an outward show of comfort which is thus created. The punishment inflicted may be less apparent to a casual visitor, but it is not less real. Loss of liberty—perpetual con finement within four walls—exclusion from all society—every action regulated and controlled —life passed mechanically in a routine of un varied actions—all these are no light priva tions to any man, and arc indifferently compen sated by comfortable acconnnodation and wholesome fare. And the criminal feels the effects of ]►rison discipline more than another would. Hear Mr. Hill : For what, owing generally to wretched training, are the habits of criminals ? idleness, late rising, and indulgence in drinking, smoking, anti gambling. Anti what regard is rid to these habits, however strong they maybe, on enter ing a Scottish prison? Not the slightest. However great a sluggard, he must rise, the sett' morning after his stl mission, even in the middle of winter. when the clock strikes six. Then. although he would probably prefer remaining in his dirt to the trouble of making himself clean, he must immediately wash himself, and that thoroughly. So soon as that is done, he must, if he has