Czytaj książkę: «Blackwood's Edinburgh Magazine, Volume 58, Number 358, August 1845»

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. Between society and the adult culprit, this is exactly the case. Here the hostile parent strikes, but makes no after overture of kindness. The blow, and the bitterness of the blow, are left unhealed. Nothing is done to take away the sting of anger, to keep the heart tender to reproof, to prevent the growing callousness to shame, and the rising rebellion of the spirit. And here reveals itself, in all its force, another notorious difficulty with which the reformer of penal codes has to contend.

In drawing the picture of the helpless condition of the convicted and punished criminal, how often and how justly does he allude to the circumstance, that the reputation of the man is so damaged that honest people are loath to employ him—that his return to an untainted life is almost impossible—and that out of self-defence he is compelled to resort again to the same criminal enterprises for which he has already suffered. Struck with this view, the reformer would institute a penitentiary of so effective a description, that the having passed through it would be even a testimonial of good character. But who sees not that the infamy is of the very essence of the punishment? A good character is the appropriate reward of the good citizen; if the criminal does not pay the forfeit of his character—if only a certain amount of temporary inconvenience is to be sustained, the terror of punishment is at an end. Here, on the arena of public life, between society and the culprit, are they not manifestly incompatible—the tenderness that would reclaim, and the vigour that must chastise?

There is no question here, we must observe, of that delicate sense of shame which is the best preservative against every departure from rectitude. This has been worn out, and almost ceased to operate on the majority of persons who expose themselves to the penal laws of their country. It is the value of character as a commercial commodity, as a requisite for well-being, that alone has weight with them. Benevolent projectors of reform, more benevolent than logical, are fond of comparing a prison to an hospital; they contend that the inmates of either place are sent there to be cured, and that they should not be restored to society until they are restored, the one to health of body, the other to health of mind. Would they carry out the analogy to its fair completeness, and maintain that the patient from either hospital should be remitted to society with a character equally free from stain? Is the man to be received by the community with the same compassionate welcome who has gone into prison to be cured of a propensity to theft, as one who has entered an hospital to be relieved of a disease?

An hospital is a word of no inviting sound—and physic, no doubt, is sufficiently nauseous to be not inaptly compared to flogging, or any other punitive discipline: but nauseous drugs are not the only means of cure; good nursing, vigilant attendance, sometimes generous diet, have a large share in the curative process. And in the hospital of the mind, the lenitive and fostering measures have a still larger share in the work of a moral restoration. Were this principle of cure, of perfect restoration, to be adopted as the first principle of penal legislation, it would come to this, that a poor man would have no better way of recommending himself to the fatherly care of the state than by the commission of a crime, and that none, in the lower classes of society, would be so well trained and disciplined for advancing their fortunes in the world, as those who commenced their career by violating the laws of their country.

Imprisonment, with its various accompaniments and modifications, is the great reformatory punishment. Indeed, with the exception of death—confined almost entirely to the case of murder—it is the only punishment bestowed on serious offences. Imprisonment of some kind, either at home or in the colonies, is the penal safeguard of society; and we must be cautious that we do not so far diminish its terrors, that it should cease to hold out any threat to a needy malefactor. But before we allude to the discipline of the prison, we must take a glance at this great exception of death, which it is the object of many of our zealous reformers entirely to erase from the penal code.

That this extreme punishment should be reserved for the extreme crime of murder, seems generally admitted; and the practice, if not the letter, of our law has conformed to this opinion. It would be useless, therefore, to argue on the propriety of inflicting this penalty on other and less enormous offences. The question is narrowed to this—shall death continue to be the punishment of the murderer?

Those who contend for the entire abolition of this punishment, are in the habit of enlarging much on the inadequate effect produced upon the multitude who witness the spectacle of an execution. This is their favourite and most frequent theme. They seem to overlook the much more powerful effect produced on the imagination of that far greater multitude who never behold, or are likely to behold, an execution. It is curious to observe how pertinaciously a certain class of reasoners will dwell on the picture which a crowd presents at a public execution;—much like a crowd, we may be sure, at any other public spectacle. Whatever the object which gathers together a mob of the lowest class, they will soon begin to relieve the tedium of expectation by coarse jests, drunkenness, and brawling. Yet these descriptive logicians are never weary of painting to us the grotesque and disgusting scenes which the mass of spectators exhibit on these occasions, as if this were quite decisive of the question. That ragged children, who have never thought of death at all, play their usual pranks at the foot of the gallows—that pickpockets ply their trade in this as in every other gaping crowd—what has all this to do with the impression produced on the mind of every man and woman throughout the kingdom, by the knowledge that if he, through sudden passion, or the instigations of cupidity, take the life of a fellow-creature, he shall be—not a spectator at such an exhibition—but that solitary crawling wretch who, after having spent his days and nights in agony and fear, is thrust forward, bound and pinioned, to be hanged up there like a dog before the scoffing or yelling multitude?

We willingly concede that a public execution is not an edifying spectacle. The coarse minds who can endure, and who court it, are the last to whom such a spectacle should be presented. And, although the punishment might lose some portion of its terrors, we should prefer that the execution should take place in a more private manner; in the court-yard, for instance, of the prison, and before a selected number of witnesses, partly consisting of official persons, as the sheriffs and magistrates, and partly of a certain number of persons who might be taken from the several jury lists—the option being given to them either to accept or decline this melancholy office. This would be a sufficient publicity to ensure an impartial administration of the laws. The only doubt that remains is, whether it would be sufficient to prevent the spread of false rumours, and absurd suspicions, amongst the people. It is a prevailing tendency with the mob, whenever any one at all above their own condition is executed, to believe that he has been favoured and allowed to escape. Even in the face of the most public execution, such rumours are circulated. We understand that Mr Tawell is confidently reported to be living at this moment in America. Such suspicions, however ridiculous and absurd, must be cautiously guarded against.

After all, the mode of execution is but of secondary importance; arrange it how you will, it is a lamentable business. Like all other punishments, and still more than all other punishments, the actual infliction of it is an evil to society. When the law passes from the threat to the execution, it is a social disaster. The main point is, that we present to the imagination of every man a great threat—that of almost immediate extermination—if he lift his hand against his neighbour's life.

That which renders the punishment of death peculiarly appropriate, in our estimation, in the crime of murder, is not by any means its retaliative character; the sentiment, that "blood must have blood," is one which we have no desire to foster; and if some less grievous penalty would have the same effect in deterring from the crime, we should, of course, willingly adopt it. Our ground of approval is this, that it presents to the mind an antagonist idea most fit to encounter the temptation to the crime. As this temptation must generally be great, and often sudden, that antagonist idea should be something capable of seizing upon the apprehension at once—of exercising at once all its restraining efficacy. Imprisonment for length of years—the mind must calculate and sum up the long list of pains and penalties included in this threat, before its full import is perceived. But death! And then the after-death! For what makes the punishment of death so singularly applicable to the case of murder is this, that it awakens whatever may exist of religious terror in the mind of him who contemplates the crime. On the one hand, he is about to commit a deed on which there are not two opinions; it is not a crime made such by the laws; it is not even a robbery, for which he may frame excuses out of his destitution, and the harsh distinctions of society; it is murder, which heaven and earth, rich and poor, equally denounce. On the other hand, his guilt will bring him almost immediately before the tribunal of God, as well as the judgment-seat of man. No long interval weakens the impression, no long space holds out the vague prospect of repentance and amendment, and compensatory acts of goodness; but if he will lift the knife, if he will mingle the poison, there is the earthly executioner at hand to transfer him to the still more dreadful sentence of the after-world! The same opinion which condemns the crime of murder here on earth, as the most atrocious that can be committed, follows him to that other tribunal; and all that his imagination has been accustomed to depict of the horrors of internal and eternal punishment, rushes at once upon him.

When the temptation comes in the shape of sudden anger and impetuous passion, there is a threat as sudden to encounter it. When the crime is revolved in the secret and guilty recesses of the mind—as when some individual stands between the tempted man and the possession of a fortune, or some other great object of desire—there is religious terror as stealthy, as secret, as unconquerable, as the strongest desire that takes possession of the human heart, to assist always at his deliberations.

M. Zschokke's little treatise, to which we have alluded, contains the usual, together with some unusual, arguments against the punishment of death, and contributes also a novel substitute for it. He begins, in true German manner, by explaining (inter alia) the difference between reason and understanding; the exact distinction between man and the rest of the animal creation; and some other metaphysical generalities, which, fortunately, are not concerned with the business in hand. For, as no two writers agree in their explanations, and as none succeeds in perfectly satisfying either his reader or himself, it would be impossible, if such preliminaries were first to be adjusted, ever to arrive at the discussion itself. The work is written in letters, addressed to a young prince; and, at the thirteenth letter—there are but sixteen in the whole—he approaches his main question—"Nun denn es sei zur sache!" "Now then to the matter." And first he protests that death is no punishment at all. The venerable historian absolutely flies to such aphorisms as were the delight of Seneca, to prove that death is no evil, and can consequently be no punishment; although there are some who, under the dominion of mere instinct, may deem it such. "The death," he writes, "of the criminal is no punishment; but for him, as for every other mortal, only the end of earthly troubles, cares, and sufferings. In vain," he continues, "does the multitude of suicides show us daily that death is no evil, and therefore no punishment; for the men who thus abridge their days manifestly prefer death to the endurance of the evils of life."

It has been said, that "he who can look at death starts at no shadows." And certainly, reason on the matter how you will, and prove life to be as worthless as you please, if a man can defy death, and solicit it, there is no other punishment that can be effective. It would be all but impossible to prevent a criminal, if so resolved, from laying violent hands upon himself; and altogether impossible to prevent him from contemplating suicide as his last resort in case of detection, and so nullifying the threat of any other punishment. There is no hold whatever on the man in whom the love of life, or the fear of death, is really extinct. But we are far from thinking that Seneca and the Stoics have yet made so deep an impression on mankind that there is a very general indifference to death, especially to a death inflicted by others—the ignominious sentence of the law.

Again, this author objects, as some others have done, to the punishment of death, because it is incapable of an adjustment to the degrees of guilt. What punishment is? Or how can any tribunal determine on degrees of moral guilt? It is not a criminal, it is a crime, that the law punishes. To determine between two thieves, which had the better motive, which had the least of thief in him, is not the function of a judge, nor could he perform it, if imposed upon him. It has been remarked by those who have had wide opportunities of judging—and the annals of criminal jurisprudence support the observation—that murderers, taken as a class, are not, as men, the worst order of criminals. Some sudden impulse, or some one obstinate desire, got the better of their reason; or it might happen, that the motive for committing a great crime was not of so dark a dye as that which often induces to one of less turpitude. And yet neither our author, nor any one else, would hesitate to accord to the crime of murder the very severest penalty that stands upon the code.

But M. Zschokke's main argument against the reasonableness and justice of death-punishment is this, that every man has an original imprescriptible right, prior to, and in the face of all society—to be a man—"mensch zu sein"—"to develope himself as man." Society may limit the exercise of this right, but not annul it; may mutilate the man as it thinks fit, but must leave so much of him behind as may bear the name of man. What is to be said of such metaphysical vagaries as these? If this pass for reasoning, the unlawfulness of imprisonment may be proved in the same manner; one has but to assert that man has an a priori indefeasible right to the use of the limbs which nature has given to him. But no man has any right whatever, but under the implied condition of performing corresponding duties. This individual, whom the law will not any longer allow to develope his humanity, should, if he had wished to develope himself further, have allowed the like liberty to others.

But that which most remarkably distinguishes M. Zschokke's little performance is the substitute for the punishment of death which it suggests. We believe it was here that M. Sue derived an idea which occupies so conspicuous a place in his Mysteries of Paris. That substitute is blindness. "The blinded man," writes our author, "is an eternal prisoner, without need of prison walls. He must envy other culprits their chains—their darkest dungeons; for in the darkest dungeons hope may penetrate, and they may one day see the light again. He must envy the dead, on whom the executioner has done his utmost; for to him life itself has become one endless punishment. He is bound without fetters—bound more securely than if he were locked to the oar or welded to the rock. Every step, every movement, tells him of his weakness and of his guilt. The living world around him—he has lost it all; he retains only its sources of pain, and the unfading memory of his own crime. Scoffed at by the unfeeling, pitied by some, by all shunned—contempt and commiseration and scorn are the smarting scourges to which he stands defenceless for the residue of his days."

A frightful punishment truly! But we are far from approving of it as a substitute for death. In the first place, it is equally irrevocable; and it is one, and perhaps the most cogent argument against death-punishment, that it admits of no recall in case of error, no remission or compensation in the event of sentence having been passed upon an innocent man. Our author, indeed, seems to think otherwise; for he reckons it amongst the advantages of this mode of punishment, that it does admit of compensation if it has been unjustly inflicted. To us it seems very doubtful whether any pleasures addressed to the remaining senses of hearing, of touch, or of taste, can be said to compensate for the loss of sight. Neither does blindness, any more than death, admit of degree or apportionment. In this respect, burning or the use of fire as a punishment, which has been suggested, though not absolutely advised, by Bentham, would have a decisive preference. "Fire," writes that voluminous jurist and legislator, "may be employed as an instrument of punishment without occasioning death. This punishment is variable in its nature, through all the degrees of severity of which there can be any need. It would be necessary carefully to determine, on the test of the law, the part of the body which ought to be exposed to the action of fire; the intensity of the fire; the time during which it ought to be applied; and the paraphernalia to be employed to increase the terror of the punishment. In order to render the description more striking, a print might be annexed, in which the operation should be represented."—(Works, vol. i. p. 407.)

What is still more to the point, the punishment of blinding is quite as repugnant to those sentiments of humanity which are said to be outraged by the depriving a fellow creature of his life. As we have before intimated, the spectacle of pain inflicted is at all times an evil in itself. Even the presence of those gloomy buildings, devoted to all the wretched purposes of incarceration, is, we should say, a public calamity. The more men see of misery, the more callous do they become to it; the less effort do they make to relieve; the more ready are they to inflict it. Punishments should be multiplied as little as possible. Very slight offences had better be left to the correction of public opinion, and very grave offences should be severely visited, as well to spare punishment as to prevent crime. We at once admit that it is an evil—the spectacle of putting a man to death. But this of putting out his eyes is, in act, scarce less revolting, and the spectacle is perpetuated. The public execution lasts his lifetime. There is something, too, from which we recoil in associating what has hitherto been the most pitiful affliction of humanity with the idea of punishment of crime. A blind man walks amongst us the universally commiserated—and good need he has of our commiseration; it would be a sore addition to his calamity to make his condition one of suspected turpitude, and expose him to the hazard of being classed with murderers.

With respect to that greater severity of the punishment, on which our author eloquently enlarges, the only severity which a legislature ought to seek is that which is available in the shape of threat; and no threat can be more effective than that of taking from a man his life, since he can always, in his own imagination, commute any other punishment into that. If it be true, on the one hand, that death is a mere privation, and not to be compared, in real severity, to very many of the positive afflictions of life; and if, on the other, it is still the greatest threat which society can hold out—these two facts together would go far to prove that it is the very best punishment which could be devised.

Dismissing this exception of the punishment of death for the crime of murder, imprisonment at home or abroad, accompanied with hard labour, or periods of solitary confinement, is the sole threat of any moment which the law holds out against offenders; and it becomes, therefore, of infinite importance to establish an effective prison discipline. We look upon this simplification of our penal operations as an advantage; and we are by no means disposed to favour those inventive gentlemen who would devise new punishments, or revive old ones, for the purpose, it would seem, of having a variety of inflictions corresponding to the variety of offences. A well-regulated prison, where the severity of the taskwork, the nature of the diet, the duration and the strictness of the confinement, all admit of apportionment to the offence, seems to include all that is desirable in this matter of punishment. Here, if any where, can plans of reformation be combined with penal inflictions. Such plans ought, by all means, to be encouraged; but they are not—whatever Captain Maconochie, and other zealous reformers, say to the contrary—the first and peculiar object for which a prison is designed.

Captain Maconochie was for some time superintendent of Norfolk Island. A rough experience. But prison discipline must be much the same in its elements, in whatever part of the world it is carried on. We are not about to enter into the variety of questions connected with transportation, or the management of penal colonies. Wherever imprisonment or compulsory labour are to be undergone, the same class of difficulties and dilemmas must arise; and we shall deal only with Captain Maconochie's remarks, as they apply generally to all convicts, whether transported or not.

It is quite curious to observe the unconscious pranks that men of sound understandings, but not philosophically disciplined, may be led into, when, from some favourite point of view, they suddenly rush into generalities, and proclaim as reasoning what is the dictate of a momentary sentiment. Captain Maconochie, desirous of enlisting our sympathies in favour of his convicts, assimilates their condition to that of the black slaves, whom the philanthropic efforts of Wilberforce, and others, succeeded in emancipating. The parallel is—to say the best—very surprising and unexpected. Convicts in the colonies stand in the same predicament, with regard to society, as their fellow-culprits at home; and the gallant Captain would hardly preach a crusade for the liberation of all the prisoners in England—for all who are undergoing the discipline of our houses of correction. To be compelled to labour for another man's advantage, and at another man's will, because one is "guilty of a darker skin," and to be compelled to the like taskwork because one has committed burglary, are two very different things. Full of this happy comparison, however, Captain Maconochie proceeds—"They (the blacks) were thus, in the main, merry, virtuous, and contented beings; they did not advance—this their condition as slaves forbade—but neither did they recede; and whatever the influence of their condition on their own character, it ended nearly with themselves; they were subjects, not agents, and no one was made materially worse through their means. In every one of these respects, convicts are differently, and far more unfavourably, circumstanced. True, they have sinned, which is often alleged as a reason for dealing with them more harshly; but who has not sinned? Who will venture to say, or would be right if he did say, that, similarly born, educated, and tempted, as most of them have been, he would have stood where they have fallen? They are our brothers in a much nearer sense than were the negroes." Now, if language such as this means any thing, the convict is a most maltreated person, and should not have been punished at all. It is really the duty of sober sensible men to put their veto on such oratory as this; there is too much of the same kind abroad. We must all of us be ready to acknowledge, that if we had been "born, educated, and tempted," as many of these felons, we too might have been felons. Does it follow that we ought not to have received the punishment of felons? Is this sort of argumentum ad hominem, which makes the crime in imagination our own, to bribe us into an utterly ruinous indulgence towards it? Crime is not punished on earth—as divines teach us it will be punished in heaven—on a principle of retributive justice, and according to our moral deserts. To prove that this is not the principle of judicial punishment, we have only to call to mind that, whereas, in a moral point of view, the force of temptation diminishes the guilt, men, in framing their laws, invariably increase the punishment in proportion to the temptation. The facility to commit a crime, is one great element in the temptation to commit it; and this facility has been always considered (as in the case of forgery) to call for a counterbalance in the severity of the penalty.