THE ECLECTIC REVIEW, FOR JUNE, 1833. Art. I. 1. Report from the Select Committee on Secondary Punishments. Ordered by the House of Commons to be printed; June, 1832. With Notes and Appendix by the Committee of the Society for the Improvement of Prison Discipline. 8vo. pp. 80. London, 1832. 2. Thoughts on Secondary Punishments, in a Letter to Earl Grey. By Richard Whately, D.D., Archbishop of Dublin. To which are appended, Two Articles on Transportation to New South Wales, and on Secondary Punishments; and some Observations on Colonization. 8vo. pp. 204. Price 7s. London, 1832. IT T would seem to be the dictate of sound policy, as well as of justice, a principle of common sense, that the criminal and the unoffending victim of misfortune should not be subjected to the same treatment. Yet, in more cases than one, we find this rule practically violated by our social institutions. To instance the punishment of temporary imprisonment. Of the numbers committed to gaol on different charges, varying from the smallest to the most atrocious offence, the proportion of those against whom no bills are found, is about one tenth; of those who are acquitted, nearly a fifth; so that, of those who suffer a degrading and demoralizing imprisonment for a longer or shorter term, about three in ten, or not quite a third, are legally innocent; and of these, a large proportion actually blameless. This is exclusive of vagrants summarily committed, and debtors, whose only crime, in a large proportion of instances, is poverty. Again: there is the heavier punishment of penal bondage. A convict is sentenced to be deprived of his freedom, and to be kept to hard labour, for some aggravated offence against society. But what is the crime of the creole offspring of a negress in one of our West India colonies, for which he is doomed to the perpetual loss of liberty, and to toil in the plantations under the fear of the task-master's VOL. IX.-N.S. 3 L lash? Would it not be more consonant with justice, to give the unoffending slave his freedom, and send the inmates of our hulks to work out their time in the sugar colonies? Once more, there is appointed for crimes of the deepest dye, the punishment of transportation. For this, the capital sentence is often commuted. Yet, call it colonization, and the self-same punishment is continually being inflicted upon scarcely less reluctant, but unoffending exiles, with this only difference; that the convict is sent to run out his bold career under the fine climate of Australia, the emigrant to shiver in Canada. Of all secondary punishments, what is called transportation would seem to be the least efficient and the most objectionable, since its effect depends altogether upon the previous habits and situation of the convict; and in proportion as he deserves punishment, it ceases to be of penal efficacy. Agricultural labourers 'with families', it is remarked in the Report before us, ' dread it extremely; while, to single men, to mechanics who are sure of 'receiving high wages, and generally to all those who feel a desire ' of change, and a vague expectation of pushing their fortunes, it appears to hold out no terrors whatever.' To the great bulk, therefore, of those who are actually transported, the punishment amounts to this; that they are carried to a country whose climate 'is delightful, producing in profusion all the necessaries and most of the luxuries of life;-that they have a certainty of mainte'nance, instead of an uncertainty; are better fed, clothed, and 'lodged than (by honest means) they ever were before; and if their conduct is not intolerably bad, are permitted, even before 'the expiration of their term, to become settlers on a fertile farm, 'which with very moderate industry they may transmit as a sure ' and plentiful provision to their children.' Archbishop Whately may be thought to have here painted transportation in very glowing colours; but the correctness of the statement is borne out by the evidence brought before the Select Committee. The accounts sent home from New South Wales and Van Diemen's Land are stated, in the Report, to be so favourable, as to produce a strong impression, that transportation may be considered as an advantage rather than a punishment. From the structure of society there, these objections can with difficulty be overcome. The labourers are so scarce, that on the arrival of a convict-ship, every convict not retained in the service of the Government, is eagerly engaged by the settlers, who are always ready to take more than can be furnished to them. As the object of a settler, in taking a convict into his service, is to improve his own property, and benefit himself, without reference to any considerations of a public nature, instead of inflicting any punishment on him, he naturally endeavours to render his situation as little irksome as possible. Ample proof will be found in the former part of the Minutes of Evidence to shew, that, the sense of degradation once overcome, the situation of the convict assigned to a settler is in many respects preferable to that of the agricultural labourer in this country; that his food is more abundant, his clothing better, and that, to add to his enjoyments, he has the advantage of a fine climate, with the certainty, if he conducts himself with propriety, of becoming virtually free in a few years, by obtaining a Ticket of Leave. If the condition of agricultural labourers is improved by transportation, mechanics find themselves still more advantageously situated; the demand for their labour is so great, and its remuneration so high, as to render it easy for many who are in the service of Government to purchase the connivance of the overseers (themselves convicts), by which they find means of sleeping out of the Convict Barracks, and of working after-hours at their respective trades; and many others are allowed to do so as a reward for good behaviour. Those mechanics who are assigned to settlers have still greater facilities for indulgence, as their masters find it to their interest to offer them very advantageous terms and privileges wholly inconsistent with a state of punishment, with a view to obtain, in return, the full value of their labour. They are consequently enabled to lead a life of comparative ease, with few of the restraints befitting a state of punishment, and quite inconsistent with moral improvement. Such is, generally speaking, the condition of the labourer or mechanic, while undergoing the severe part of his sentence; but if he so conduct himself as to remain in the service of one master, he is allowed, if transported for seven years, a Ticket of Leave at the end of four years; if for fourteen years, at the end of six years; and if for life, at the end of eight years. The acquisition of a Ticket of Leave may be considered as one step towards emancipation; the possessor of it, though confined to a particular district, and liable to be deprived of it for misconduct, is allowed to work on his own account; and the high rate of wages furnishes him with the means of acquiring capital, with which he is enabled, at the expiration of his sentence, to set up in business; and it is stated, that instances are not unfrequent of persons sent out originally as convicts having become possessed of considerable wealth.' Report, pp. 26, 27. There is this further evil in transportation, noticed by Archbishop Whately as peculiar to this equivocal punishment, that when a convict is transported, (the execution of the sentence being itself uncertain,) there is an immense variety of lots that may befall him. He may live either in the town or in the country; may serve the government or a settler; have a good or a bad master; remain poor or be well or ill treated; be a tutor or a shepherd; a governgrow rich; ment clerk or a tavern waiter : whence it arises, that every one selects the condition which is most agreeable to himself, and expects to meet with that particular destination: any case of hardship which may come to his ears, he sets down as a lamentable accident for the unhappy sufferer, who is much to be pitied for his misfortune; but he never thinks of applying it to his own case. The banker's clerk, or the London thief, expects to be a tutor, or to be employed in a public office: the mechanic expects to cheat the government and work for his own profit: the agricultural labourer to have little fatigue, and be well fed, clothed, and lodged. And the truth is, that they are generally right in their respective calculations, as the government is forced to employ them in the way which best suits their former habits; in other words, in the way most agreeable to themselves. Transportation may, indeed, be said to unite in itself all the attributes of a bad punishment; to furnish a model for a penal system which should be imitated by contraries. Even if it were rendered certain by making it the only secondary punishment, this change would rather aggravate the evil. For its chief defect is its extreme mildness and want of terrors, and the happy facility with which it adapts its various pleasures to the case of each individual. Hence, by persons under sentence in England, it is coveted rather than dreaded, and is an object of ambition rather than aversion. While of the convicts, some are tormented with the fear of death; some depressed with the disgrace of a conviction in their native country; some with the dread of the hulks, others of the penitentiary; and while most are intent on the prospect of wealth and importance in a new home, the tickets of the lottery are drawn, and happy they who get the prize of transportation. "Alii panduntur inanes Suspensi ad ventos; aliis sub gurgite vasto Quisque suos patimur manes: exinde per amplum The pain inflicted by this punishment is insufficient in amount, irregular in its operation, often unknown on account of the distance at which it is endured, and if known, so uncertain as not to be reckoned on its disgrace is not felt, because the sufferers are out of the sight of those whom they respect it injures the mother country by substituting the semblance for the reality of punishment: it injures the colony by forming a society of the most worthless and abandoned wretches drafted from the prisons of a large community. By annually pouring in fresh supplies of this moral poison; by concentrating, multiplying, and perpetuating the scattered and transitory forms of vice, it has made this new and wealthy settlement a storehouse of depravity, one vast heap of moral corruption. It is a system from which nothing is to be hoped, and everything to be feared; a system of elaborate mischief and consistent impolicy, originating in helplessness, continued in ignorance, and tolerated only by supine and culpable indifference.' Whately, pp. 161–164. This is very strongly put; but really, the more the system is examined in all its bearings, in its costliness, its inefficiency, its irregular and unequal operation, and its prejudicial consequences, the more astonishing it will appear that it should so long have been persisted in. The only recommendations of this punishment are wholly foreign from its penal efficiency. They are, so far as we can discover, simply these two; that it provides the Australian provinces with bond-servants, and that it gets rid of the individuals, as regards the country which sends them out, but which pays dearly for the riddance. As to the first point, it seems, that all proposals to discontinue the annual shipments of 'convicts to the Australian provinces, meet with great opposition from the free inhabitants of those colonies, who consider that they have a vested right to be provided with bond-slaves at the public expense; and that the system, which might have been 'less objectionable in the early state of the colony, is to be maintained for their benefit, however injurious it may prove to the 'lasting interests both of the mother country and the colony itself. Of all imaginary vested rights', (the phrase is an absurd one,) this is, perhaps, the most extraordinary that was ever made the subject of a claim with a view to resist an important melioration. The opposition of the Australian colonists to the discontinuance of a system which operates as a bounty upon crime, in order to qualify offenders to become their bondsmen, will not, it may confidently be hoped, be allowed to weigh much with the home Government. But then, there is the recommendation which the system presents, not as a punishment, but as an expedient for getting rid of the malefactor. Let us examine this; for, if it be necessary to get rid of him, and this be the cheapest and best way of accomplishing it, then, though in itself a bad punishment, it may be a useful regulation for the interests of society. 6 The old plan of ridding society of malefactors was by hanging them. Death, if not the most formidable of all punishments to the offender, is perhaps the most economical." But capital punishments not only lose their salutary effect in deterring from the commission of crime, by their frequency and by the indiscriminate application of the same extreme penalty to crimes of different malignity: they also defeat their own purpose, by multiplying the chances of impunity, arising from the general reluctance to prosecute and to convict where the life of the culprit is at stake. And they have moreover an injurious effect on society as tending to lessen the horror for crime, by converting minor offenders into objects of pity, and sometimes dignifying even greater criminals with a sort of heroism. Thus, as, with a rapidly increasing population, the number of crimes is augmented, at the same time that civilization advances, it becomes impossible to enforce the capital penalty in that wholesale application which the laws formerly authorized, or to keep down the population of the prisons by this convenient but ruthless expedient. We do not at present enter into the question of the lawfulness of capital punishments, but confine ourselves to the fact, that they are found to be, in the present state of society, inexpedient and, upon a large scale, impracticable. |