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who, if they remained in this country, would almost infallibly commit crime, than by getting rid of actual offenders. But, in proportion to the facility of getting rid of culprits, will be the supineness that prevails as to the means of preventing or obviating the temptation to the commission of crime. In this respect, as well as in its effect upon criminals who regard it as a desirable fate, transportation, in the present system, has tended to multiply crime.
Society ought to be made to feel the inconveniences resulting from the crime which is the fruit of its own neglect, or of unwise legislation. That the increase of delinquency in this country is mainly owing to the neglect of the means of prevention, will not be questioned by any persons who have competently examined the working of our criminal system. And if this be the fact, a facile mode of disposing of criminals, must serve only to render our legislators and magistrates more indifferent to the demoralizing effects of ignorance and pauperism, of game-laws and trespass-laws, of beer-shops and gin-shops, of sabbath-breaking, of precipitate and unnecessary commitments, of crowded and ill regulated gaols, and of those other defects in our criminal institutions which contribute to the multiplication of offences and the encouragement of crime*. It is not till the question becomes embarrassing, What shall we do with our convicts? that there is any chance of obtaining due attention to what ought long ago to have undergone more thorough inquiry, What are the best means of preventing men from becoming criminals?
One obvious means of prevention, too little considered by our magistrates, is, not to treat a man as a criminal before he is proved to be such, which is the direct way to make him one. The extreme readiness of magistrates to commit, instead of accepting bail, is not only a very principal cause of the increase in the number of commitments, but, in its ultimate consequences, a cause of the actual increase of crime. No one comes out of gaol as he went in, as respects either his character or his position in society. Now we have already adverted to the large proportion which the number of persons discharged by grand juries or acquitted, bears to the total number of commitments. By the general acceptance of bail, the number of untried prisoners might be reduced at least one half, without any prejudice to the interests of the community, and with great advantage to the discipline of prisons. Few magistrates are disposed to accept of bail; and their anxiety to avoid responsibility, leads them to fill the gaols with petty offenders who, formerly, would have been discharged after personal chastisement. Nothing is more easy than to get an offender committed. The ultimate cost to the community of
* See, on the Increase and Causes of Crime, Eel. Rev. vol. vii. 3rd Series, pp. 313—324.
such commitment, from its certain effects upon the supposed culprit, is a consideration that seldom troubles the worshipful administrators of our penal injustice.
For injustice it certainly must be deemed, to punish a man who has not been tried or proved guilty of any offence. Now imprisonment is punishment, if any thing is. Nor can any improvement in our system of secondary punishments take place, till a proper distinction is made between the convict sentenced to the forfeiture of his liberty, and the subject of an alleged but unproved charge. Imprisonment may be necessary for the safe keeping of the presumed culprit under charges of a serious nature; but, in that case, it should wear as little as possible the character of punishment, and be simple detention. On the other hand, imprisonment, when inflicted in virtue of a judicial sentence, requires to be rendered much more effective for the purposes of punishment.
'There are three, and only three objects,' remarks Archbishop Whately, 'with a view to which punishments can be inflicted or
* threatened: 1. Retribution; 2. Correction; 3. the Prevention
* of the offence, generally, by the terror of a punishment de'nounced.' As for the first of these purposes, the infliction of just vengeance on the guilty, the learned Prelate contends, that 'it is clearly out of marl's province.
'Setting aside the consideration, that the circumstances on which moral guilt depends, the inward motives of the offender, his temptations, and the opportunities he may have had of learning his duty, can never he perfectly known but to the Searcher of hearts,—setting aside this, it does not appear that man, even if the degrees of moral turpitude could be ascertained by him, would have a right to inflict on his fellow-man any punishment whatever, whether heavy or light, of •which the ultimate object should he, the suffering of the offender. Such a procedure, in individuals, is distinctly forbidden by the Founder of our religion, as a sinful revenge: and it does not appear how individuals combined into a community can impart to that community any right which none of them individually possessed;—can bestow, in short, on themselves what is not theirs to bestow. Our Saviour and his apostles did not mean to deprive even an individual of the right of defending (when there is no other defence to be had) his own person and property; and this right he is competent to transfer, and is considered as having transferred, to the community; but they meant to forbid the "rendering of evil for evil," for its own sake: and as no man is authorized to do this, or can authorize others to exercise such a right, even over himself, so neither can ten men or ten millions possess any such right to inflict vengeance; for " vengeance is mine, saith the Lord."' Whately, pp. 59, 60.
Tbere is, however, an important distinction, assuredly, between judicial retribution and private revenge. According to the argument in the above extract, murder being absolutely forbidden by the law of God, the magistrate can have no better right than an individual, to take away the life of a criminal, since 'indivi'duals combined into a community, cannot impart to that com'munity any right which none of them individually possess.' The same mode of argument would prove every species of punishment to be at variance with Christianity, since individuals are enjoined to suffer wrong patiently, and not to resist evil, to give to him that asketh, to forgive their debtors. Taken literally, these precepts would preclude the obtaining of civil compensation, as much as they do the principle of vindictive retaliation. But the fact is, they were never intended by Our Lord as maxims of government or public justice. We are forbidden to avenge ourselves, or to act in the spirit of revenge or retaliation: if our enemy hunger, we are to feed him; if he thirst, to give him drink. Can public laws be administered upon this principle? If retribution belongs to God, is it not also said, that the magistrate is "the minister of God, a revenger to execute wrath upon him that "doeth evil" (Rom. xiii. 4.); and that he "beareth not the sword in vain?" The ' infliction of just vengeance on the guilty,' is clearly, then, within the province of the magistrate; although it by no means follows, that the suffering of the offender is 'the 'ultimate objecf of retribution, whether Divine or human. To represent this as the character of the Divine wrath, would be impious. The principle and design of judicial retribution are altogether incorrectly described by the learned Writer; and his theory of punishment partakes of the vicious ethics of King and Paley, which would rest the eternal principles of justice upon general expediency. They are doubtless ever in accordance with expediency; but, for the laws which govern human actions, there are higher reasons.
Of the other two legitimate objects of punishment, the learned Author remarks, ' the prevention of a repetition of the offence by 'the same individual, whether by his reform or removal, is of 'incalculably less importance than the other,—the prevention of 'crime generally, by the terror of example or of threat.'
* If we could ever so completely attain the other objects, by some expedient which would yet fail of, or very inadequately accomplish, this last, such a system must be at once pronounced inefficacious. Could we be sure of accomplishing the reformation of every convicted criminal, at the same time making his services available to the public, yet, if the method employed should be such as to deter no one from committing the offence, society could not exist under such a system. On the other hand, if the punishment denounced had no other tendency whatever but to deter, and could be completely effectual in that, it is plain that it would entirely supersede all other expedients, since it mould never even be inflicted. This truth, though self-evident, is frequently overlooked in practice, from the necessary imperfection of all our expedients. Hardly any denunciation of punishment ever was thus completely effectual; and thence men are often led to look to the actual infliction as the object contemplated. Whereas it is evident, that every instance of the infliction of a punishment is an instance, as far as it goes, of the failure of the legislator's design. No axiom in .Euclid can be more evident, than that the object of the legislator, in enacting that murderers shall be hanged and pilferers imprisoned or transported, is, not to load the gallows, fill the gaol, and people New Holland, but to prevent the commission of murder and theft; and that consequently every man who is hanged, or transported, or confined, is an instance, pro tanto, of the inefficacy, i. e. want of complete efficacy of the law. The imprisonment may reform the offender; death removes him from the possibility of again troubling society; and the example may in either case operate to deter others in future; but the very necessity of inflicting the punishment, proves that the dread of that punishment has, so far at least, failed of producing the desired effect. This absolute perfection indeed—the entire prevention of crime—is a point unattainable; but it is a point to which we may approach indefinitely;—it is the point towards which our measures must be always tending, and we must estimate their wisdom by the degrees of their approach to it.' Whately, pp. 60, 61.
That it forms no part of the legitimate object of penal laws, to promote the reformation of the offender, must, we apprehend, be admitted. The simple object of penal sanctions is to deter, by the influence of fear, from the violation of the law; and the design of the law is the protection of society. 'The law worketh wrath,' i. e. penal vengeance; and moral discipline or paternal chastisement seems to be wholly foreign from the stern operation of criminal statutes. It is strange, that the learned Prelate should explain ' correction,' as 'the prevention of a repetition of offence 'by the same individual, whether by his reformation or his re'moval.' His removal, it is true, whether by death or by transportation, is designed to secure society against a repetition of the crime by the same individual; but how can this mode of prevention be termed correction? Correction is punishment, which may or may not lead to reform; but its design is to prevent a repetition of the offence, by producing fear of a repetition of the punishment, as well as to strike terror into others by the example of the culprit. In short, the three-fold object of punishment resolves itself into one; namely, to restrain from crime by the operation of the principle of fear. Human laws, in this respect, strike in with the general law of the Divine Government, which indissolubly connects vice and suffering, crime and penalty, in the ultimate issue. But, although necessary, this connexion is not obvious, tangible, or immediate, the consequence being remote and indefinite; whereas the efficacy of punishment upon the ignorant and sensual, upon all in whom the moral principle is enfeebled, as well as upon children and animals, depends upon the speediness and certainty with which it follows transgression. Hence, the fear inspired by penal laws is found to operate upon those who are not restrained by religious fear, because in them the principle of faith is absent.
The prevention of crime by fear of suffering is, then, we should say, the only object of penal sanctions. But other means of preventing crime than those contemplated by the criminal law, fall within the province, and demand the attention of an enlightened Government. A wise economy, not less than the dictates of philanthropy, recommends the adoption of any plan that may promote the reformation of the delinquent, although that moral benefit is neither comprehended in the theory of punishment, nor is the natural effect of suffering. The two objects may be pursued together, and both may be attained by a judicious system of prison discipline and punishment; but they are distinct objects,— equally claiming the concern of the rulers of a State, but still as distinct as education and criminal law. We agree, therefore, with Dr. Whately, that the reformation of the convict, desirable as it is in itself, is, as regards the penal laws, a secondary object, or rather an incidental advantage not belonging to punishments as such. We admit it to be 'an indispensable object of prison dis'cipline,' but not of penal enactments. 'The design of punish'ment,' it is said, 'is not merely to inflict pain and deprivation.' The infliction of suffering is allowable only as it may ' deter, 'correct, and reclaim."' (Report, note 15.) But to deter and to reclaim are two very different things. Men are deterred from crime by fear of suffering, but they are never reclaimed by suffering, nor is this the use of punishment. To reclaim the vicious, whether criminals or not, is both the interest and the duty of a Christian community; but the law deals with the vicious, not as such, but simply as criminals. 'Unjustifiable as are vindictive 'penalties, the offender must be made to feel that punishment 'attends the violation of the law.' And others must be made sensible of this by his example. Here, the end of punishment and its efficacy terminate. Yet, that 'the prevention of crime 'will never be effected by the influence of fear alone,' that is by punishment alone, we are fully sensible. Nay, we contend that the best mode of preventing crime does not fall within the province of penal legislation, but consists in the impartation of religious instruction, which is the duty not so much of the magistrate as of the minister. 'Religious instruction forms, in fact,' say the Committee of the Prison Discipline Society, 'an indis'pensable branch of prison regulation: it is a component part of 'the system. Without such reformation, the object of prison 'discipline cannot be attained. 'Without religious impressions, 'reformation is hopeless.' (p. 64.) We need not say how entirely we concur in these sentiments. Advocates as we have ever been of a reformatory discipline, we cannot be so far misunder