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stood as to be suspected of underrating its importance or of doubting its efficacy. We wish only to place in a clear light the essential distinction between the proper design of punishment, and the proper design of discipline, and their diverse operation. In the punishment of the criminal, the benefit of society is the immediate and primary object, not the moral benefit of the sufferer, which may be the accidental result. In attempting his reformation, the good of the individual is the primary object, and the benefit of society is only contemplated as the remote consequence. It is the interest of the community that the vicious should be reclaimed. It is still more desirable that men should be prevented, by the influence of education and religious instruction, from becoming vicious.
We have been led to insist upon this distinction, perhaps somewhat tediously, by finding both in the publication of tne Prison Discipline Committee, and in that of Archbishop Whately, views upon the subject of Punishment which we must regard as obscure and unsound; and though the error which pervades those views is on the side of humane sentiment, even amiable errors are not always harmless. 'La nerite vuut mleux absolument."
The whole system of our secondary punishments demands revision; and it is of the highest importance, that that revision should be based upon sound principles; that it should be clearly understood, what punishment can do, and what it cannot do. There can be no doubt that punishment might be rendered much more effective as a means of deterring from crime by inspiring dread, even without increasing its severity, were it more certain and more speedy. The chances of escape have far more influence upon the calculations of the delinquent, than the degree of suffering which awaits his conviction. Punishment, however, must inspire dread, or it is altogether deprived of its efficiency. This is the case, to a great extent, with capital punishments, which carry little terror to the hardened and desperate offender, and with transportation. The dread of hard labour, of seclusion, and of restraint, is adapted to operate still more powerfully upon a large class of offenders; and this species of punishment has the additional advantage, that it may be converted into a powerful instrument of moral correction, by reforming the habits of the criminal. The American system of penitentiary discipline is strongly recommended to the attention of the Legislature in the publications before us.
'This system combines all the advantages which transportation has not; it begins immediately after sentence; it is painful in the extreme, by enforcing strict silence and hard work by day, and solitude by night; it is constant and uniform; in cheapness, it far exceeds every other punishment except death; and it affords the best chance of reformation which any mode of reclaiming depraved persons can afford. inasmuch as it connects labour and instruction with their most agreeable associations, as silence is never broken except by the voice of the teacher; and where conversation and amusement are forbidden, labour itself is a relief.' Whately, p. 165.
Add to which, this discipline admits of a great variety of combination, and is therefore adapted to the treatment of offenders of different classes of criminality.
'The beneficial effects which the penitentiary system, when fairly tried, has thus produced, prove that imprisonment may be rendered efficacious for all the just purposes of penal legislation, without resorting to extreme severity. The adoption of a similar discipline in this country, under certain modifications, would prove a salutary substitute for the penalty of Death ; and its principle has long been recognised by the Legislature. The 19th Geo. III. c. 74. (an Act drawn by Sir \Vm. Blackstone assisted with the advice of Mr. Howard,} has this preamble: "Whereas if many offenders convicted of crimes for which transportation has been usually inflicted, were ordered to solitary imprisonment, accompanied by well-regulated labour and religious instruction, it might be the means, under Providence, not only of deterring others from the commission of the like crimes, but also of reforming individuals and inuring them to habits of industry."' Report, p. 43.
The whole subject will, we trust, before long undergo a full discussion preparatory to introducing those economical reforms into the existing system, which enlightened policy and humanity unite to recommend. We hope to see the system of penal transportation wholly done away. Instead of employing it as an inefficient engine of punishment, let it be held out as a relief and a reward, and both the mother country and our Australian colonies will derive advantage from the change.
The preceding remarks were in the hands of our Printer, when a pamphlet reached us, entitled, 'Hints on the Necessity of a 'Change of Principle in our Legislation, for the efficient protec'tion of Society from Crime': reprinted from the Edinburgh Law Journal. The ingenious and philanthropic Writer has fallen into the common error of mistaking one side of a subject for the whole truth. Because punishment is inefficacious for the purpose of reform, he jumps to the conclusion, that it is useless, and that, being inefficacious, it is cruel. He asserts, that' formid'able punishment and reformation cannot be united;' and he would therefore abolish entirely the penal character of the treatment of criminals, and attend exclusively to their reform. In a word, he would convert all prisons into asylums. The following remarks are intended to serve as the philosophical basis of the Writer's argument.
'The material to be worked upon is the Will Op Man. In relation to the impulses and tendencies of this will, minute and attentive observation has shewn, and the parables of the Talents and the Sower illustrate the observation, that human beings present 'three classes. First, those whose animal appetites or propensities are so powerful as to overbalance the restraining force of their moral and intellectual faculties, and, like thorns, choke any good seed sown in them. Beings of this constitution of mind are under the dominion of strong lusts, violent passions, and intense selfishness. Their impressions of moral duty are so weak as to offer no restraint to the gratification of their selfishness, at any cost of property, limb, or life, to those, no matter how unoffending, who stand in their way; while in most of them a limited intellect has obscure views of the real nature of things, confused perceptions of consequences, overweening confidence in their own power of concealment, evasion, and escape, total blindness to the guilt of their actions, a fixed rejection in their own case of all idea of retribution,—on the contrary, a persuasion that all restraint imposed on themselves is the unwarrantable act of the strongest; and, finally, the feeblest powers of controlling their passions, even when they do see the fatal consequences of yielding to their sway. Any better endowment of intellect in this class is always perverted to the purposes of crime; hence expert plan-laying thieves, pickpockets, swindlers, and forgers.
'The second class of mankind are very numerous; those whose animalism is nearly as strong as in the first class, but whose moral and intellectual powers of restraint are so much greater, as to bring the tendencies to indulgence and forbearance almost to a balance. External circumstances in such persons turn the scale. In low life, uneducated, neglected, and destitute, they have often become criminals; in a more favourable condition of education and society, they have continued respectable; but, within the influence of bad example, they will be found sensual and often profligate, and they are always selfish and self-indulging. In them is the scriptural want of earth to preserve the plant which springs up, from the withering action of the sun.
'The third class are the good ground, that produces in different degrees, but all plentifully. They are those who, the Apostle says, are "a law unto themselves." In them the animal propensities are sufficient for their legitimate ends; but the decided predominance of intellect and moral feeling, as faculties of their minds, renders it nearly a moral impossibility, that the inferior tendencies should ever master them so far as to impel them to commit a crime. It is physically possible for such men to rob, or steal, or torture, or murder, but it is morally impossible; and they would attempt any physical difficulty in preference. They enjoy strong moral and intellectual perceptions. Their passions, sometimes vigorous, are reined by their higher feelings; they feel the law written in their hearts with the same Finger that graved it on tables of stone; instead of all their inspirations and aims being selfish, they have time, and thought, and exertion, and money, to spare for their fellow creatures; and are made happy by the extension of the virtuous enjoyment of life throughout the world. They cannot exist in a grovelling atmosphere, and tend upwards into a purer moral medium, when by circumstances depressed into vicious contact. These, lastly, are the men who are sincerely, conscientiously, rationally, and practically religious, and whose morality is based in the
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Divine will and the precepts of Christianity. It is manifestly the Creator's design, that such men, from intellectual as well as moral power, shall rise to the guidance of society; and liberty, and light, and national happiness, are in the direct ratio of their ascendancy. An enlightened and effective criminal code will emanate from them alone.
'One grand error in criminal legislation has been, that the threefold distinction now drawn has never been taken into account as true in nature. There is no practical belief that it exists. We do not find it adverted to in any of the thousand and one treatises already written, and by the most talented of men, on criminal legislation. Yet we venture to predict that, till it shall be acted upon as a practical truth, speculation after speculation, code after code, and institution after institution, for the protection of society from crime, will fall to the ground. The prevalent practical belief of the million, and of the law-makers in whom they confide, is, that in power to obey the laws there is among men no difference of mental constitution ; that a good man has trilled to be virtuous, and a bad man has willed to be vicious, and that either might have willed equally easily the opposite character;—that it was a mere voluntary choice that, on the one hand, filled the prisons with wretches whom a Howard visited, and that determined Howard, on the other, to visit them. Hence the indignation and resentment felt against the criminal, and the tendency to visit upon him the retribution considered due to a deliberate choiceof the wrong, in spite of a clear perception and feeling of the right. Now, the truth will challenge the strictest investigation, that the great majority of criminals in this country have minds so constituted, and that independently of their own volition, as to rank them in the Jirst class above described. They are born with a greatly preponderating animalism, which grows with their growth, and strengthens with their strength. Belonging to the lower, and often the lowest, ranks of life, having neither moral nor religious training and exercise, little or no intellectual education, no habit or practice of industry, frugality, sobriety, or self-denial; strangers to all encouragement from a higher moral society to value character; on the contrary, familiar from infancy with the example of debauchery, profligacy, and recklessness, and crime in their very parents and relations, trained often to early mendicity, and always to thieving, habituated to hear debauchery and successful villany lauded in the society with which they mix, and morality and justice ridiculed or defied, they may be said to be indeed born in iniquity, and bred in crime. Such are the beings whose acts create resentment and retributive revenge in the minds of the unreflecting, the untempted, and, in regard to a sound philosophy of man, the uninformed.
'Now, minds so constituted ought not to be judged of in the same manner as those of a more moral and intellectual constitution. Justice demands a large allowance for their unfortunate constitution and not less unhappy circumstances; and, above all, observing that punishment, however severe, docs Not operate upon them as example, it would consider whether there are not means, at once more just and more effectual, of protecting society from the acts of these its dangerous and reckless members/
That punishment has no exemplary force, even upon num
bers of this first class, is an assumption by no means warranted; and if it were true, its operation upon the second class would justify its infliction upon individuals who might he referred to the first. The classification, however, it must be recollected, is purely theoretical. The Writer contends, indeed, that those 'decidedly predisposed to crime' are much more of a class than is supposed; that they are ' a class nearly all of whom, at least in 'the lower ranks, come in contact with the law;' and that 'a 'proper penitentiary system is nearly certain of getting them all 'into its hands.' Were this the fact, it would surely be practicable to deal with them before they came in contact with the law, by a preventive benevolence. Of this policy, it is but justice to the Writer to say, that he is the zealous advocate; and he confidently relies upon Infant schools, conducted upon a religious basis, as the most rational and the only effectual preventive of crime. Next to Infant Schools, in efficiency, he seems to rank Prison Education.
'When, by an enlightened age, penitentiaries shall be held to be hospitals for moral patients, and not engines to protect society, by holding out the spectacle of the sufferings of perfectly free agents, either paying back that loss which their actions have occasioned, or deterring others from crimes by their example, the duration of the convict's detention will depend, not upon the mere act which brought him there, but upon the continuance of his disease. As long as penitentiary discipline shall consist of severe and degrading compulsory labour, of stripes, irons, insults, and brutality, without an attempt at improvement mental or moral, beyond being herded into a chapel on Sunday for an hour or two,—and this constituted the old idea of a house of correction,—a prescribed and short duration of such irrational usage is imperative. Nay, it was and is the prominent problem of criminal legislation, to proportion punishments to crimes,—to weigh out, to an odd scruple, the quantum of suffering which shall counterpoise the quantum of guilt in the act committed; and certainly it would be monstrous to detain the convict, on such a principle, one moment longer in the place of mere suffering, than the exact time necessary to permit society to take out, in his groans, the supposed debt ex delicto contracted by him. But no one is ever sent to an hospital for a previously prescribed period. Sixty days of the infirmary, or the madhouse, as a medical prescription, would be justly ridiculed, in and out of the faculty; and so it will come to be, when moral infirmaries, applying rational and effectual means of cure to those afflicted with that worst of diseases called a proclivity to crime, and being withal mild, benevolent, and encouraging to the patient, are substituted for the present irrational treatment. The unhappy criminal will then be regarded more in relation to his moral constitution than his conduct; or, if the latter be estimated, it will be in the way of evidence of the former. His sentence for an overt act of crime will be the restraint of the penitentiary, till an authority, beyond all question as to intelligence, and all suspicion as to uprightness and benevolence, shall deem