Excerpt
ON PUNISHMENT.
How to punish crime, and in so doing reform the criminal; how to uphold the man as a terror to evil-doers, and yet at the same time be implanting in him the seeds of a future more happy and prosperous life—this is perhaps the most difficult problem of legislation. We are far from despairing of some approximation to a solution, which is the utmost that can be looked for; but we are also convinced that even this approximation will not be presented to us by those who seem willing to blind themselves to the difficulties they have to contend with. Without, therefore, assuming the air of opposition to the schemes of philanthropic legislators, we would correct, so far as lies in our power, some of those misconceptions and oversights which energetic reformers are liable to fall into, whilst zealously bent on viewing punishment in its reformatory aspect.
We have selected for our comments the pamphlets of Captain Maconochie, not only because they illustrate the hasty and illogical reasonings, the utter forgetfulness of elementary principles, into which such reformers are apt to lapse; but also for the still better reason, that they contain a suggestion of real value; a contribution towards an efficient prison-discipline, which merits examination and an extensive trial. We have added to these pamphlets a brief work of Zschokke's, the venerable historian of Switzerland, on death-punishment, in order that we might extend our observations over this topic also. It is evident that the question of capital punishment, and the various questions relating to prison discipline, embrace all that is either very interesting or very important in the prevailing discussions on penal legislation. Transportation forms no essentially distinct class of punishment, as the transported convict differs from others in this only, that he has to endure his sentence of personal restraint and compulsory labour in a foreign climate.
Reformatory punishment! Alas, there is an incurable contradiction in the very terms! Punishment is pain, is deprivation, despondency, affliction. But, would you reform, you must apply kindness, and a measure of prosperity, and a greater measure still of hope. There is no genial influence in castigation. It may deter from the recommission of the identical offence it visits, but no conversion, no renewal of the heart, waits on its hostile presence; the disposition will remain the same, with the addition of those angry sentiments which pain endured is sure to generate. No philosopher or divine of these days would invent a purgatory for the purifying of corrupted souls. No—he would say—your purgatory may be a place of preparation if you will, but not for heaven. You may make devils there—nothing better; he must be already twice a saint whom the smoke of your torments would not blacken to a demon.
We may rest assured of this, that the actual infliction of the punishment must always be an evil, as well to mind as body—as well to society at large as to the culprit. If the threat alone could be constantly efficacious—if the headlong obstinacy, the passion, and the obtuseness of men would not oblige, from time to time, the execution of the penalty, for the very purpose of sustaining the efficacy of the threat—all would be well, and penal laws might be in full harmony with the best educational institutions, and the highest interests of humanity. But the moment the law from a threat becomes an act, and the sentence goes forth, and the torture begins, a new but unavoidable train of evils encounters us. There is war implanted in the very bosom of society—hatred, and the giving and the sufferance of pain. And here, we presume, is to be found the reason of the proverbially severe laws of Draco, which, being instituted by a man of virtue and humanity, were yet said to have been written in blood: he desired that the threat should be effective, and that thus the evils of punishment, as well as of crime, should be avoided.
Whatever is to be effected towards the genuine reformation of the culprit, must be the result, not of the punishment itself, but of some added ingredient, not of the essence of the punishment; as when hopes are held out of reward, or part remission of the penalty, on the practice of industry and a continuance of good behaviour.
And yet—some one may here object—we correct a child, we punish it, and we reform. The very word correction has the double meaning of penalty and amendment. If the plan succeeds so well with the infant, that he who spares the rod is supposed to spoil the child, why should it utterly fail with the adult? But mark the difference. You punish a child, and a short while after you receive the little penitent back into your love; nay, you caress it into penitence; and the reconcilement is so sweet, that the infant culprit never, perhaps, has his affections so keenly awakened as in these tearful moments of sorrow and forgiveness. The heart is softer than ever, and the sense of shame at having offended is kept sensitively alive. But if you withdrew your love—if, after punishment inflicted, you still kept an averted countenance—if no reconcilement were sought and fostered, there would be no reformation in your chastisement....