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WHEN PENAL CODES MUST BE SEVERER.
erates a harsh form of government, also of necessity generates harsh retributions; but also, that in such a social condition, harsh retributions are requisite. And there are facts which illustrate this. Witness the case of one of the Italian states, in which the punishment of death having been abolished in conformity with the wish of a dying duchess, assassinations increased so greatly that it became needful to reëstablish it.
Besides the fact that in the less-advanced stages of civilization, a bloody penal code is both a natural product of the time, and a needful restraint for the time; there must be noted the fact that a more equitable and humane code could not be carried out from want of fit administration. To deal with delinquents, not by short and sharp methods, but by such methods as abstract justice indicates, implies a class of agencies too complicated to exist under a low social state, and a class of officers more trustworthy than can be found among the citizens in such a state. Especially would the equitable treatment of criminals be impracticable where the amount of crime was very great. The number to be dealt with would be unmanageable. Some simpler method of purging the community of its worst members becomes, under such circumstances, a necessity.
The inapplicability of an absolutely just system of penal discipline to a barbarous or semi-barbarous people, is thus, we think, as manifest as is the inapplicability of an absolutely just form of government to them. And in the same manner that, for some nations, a despotism is warranted; so may a criminal code of the extremest severity be warranted. In either case the defence is, that the institution is as good as the average character of the people permits—that less stringent institutions would entail social confusion and its far more severe evils. Bad as a despotism is, yet where anarchy is the only alternative, we must say that, as anarchy would bring greater suffe: ing than despotism brings, despotism is justified by the circumstances. And similarly, however inequitable in the abstract were the beheadings, hangings, and burnings of ruder ages, yet, if it be shown that, without penalties thus extreme, the safety of society could not have been insured—if, in their absence, the increase of crime would have inflicted a larger total of evil, and that, too, on peaceable members of the community; ther. it follows that morality warranted this severity. In the one case, as in the other, we must say that, measured by the quantities of pain respectively inflicted and avoided, the course pursued was the least wrong; and to say that it was the least wrong is to say that it was relatively right.
But while we thus admit all that can be alleged by the defenders of Draconian codes, we go on to assert a correlative truth which they overlook. While fully recognizing the evils that must follow the premature establishment of a penal system dictated by pure equity, let us not overlook the evils that have arisen from altogether rejecting the guidance of pure equity. Let us note how terribly the one-sided regard for immediate expediency has retarded the ameliorations from time to time demanded.
Consider, for instance, the immense amount of suffering and demoralization needlessly caused by our severe laws in the last century. Those many merciless penalties which Romilly and others succeeded in abolishing, were as little justified by social necessities as by abstract morality. Experience has since proved that to hang men for theft, was not requisite for the security of property; and that such a measure was opposed to pure equity, scarcely needs saying. Evidently, had considerations of relative expediency been all along qualified by considera tions of absolute expediency, these severities, with their
EFFECTS OF BARBAROUS DISCIPLINE.
many concomitant evils, would have ceased long before
Again, the dreadful misery, demoralization, and crime, generated by the harsh treatment of transported convicts, would have been impossible had our authorities consid. ered what seemed just as well as what seemed politic. There would never have been inflicted on transports the shocking cruelties proved before the Parliamentary Committee of 1848. We should not have had men condemned to the horrors of the chain-gang even for insolent looks. There could not have been perpetrated such an atrocity as that of locking up chain-gangs “from sunset to sunrise in the caravans or boxes used for this description of prisons, which hold from twenty to twenty-eight men, but in which the whole number can neither stand upright nor sit down at the same time, except with their legs at right angles to their bodies.” Men would never have been doomed to tortures extreme enough to produce despair, desperation, and further crimes—tortures under which “a man's heart is taken from him, and there is given to him the heart of a beast,” as said by one of these law-produced criminals before his execution. We should not have been told, as by a chief justice of Australia, that the discipline
“carried to an extent of suffering, such as to render death desirable, and to induce many prisoners to seek is under its most appalling aspects." Sir G. Arthur woula not have had to testify that, in Van Diemen's Land, convicts committed murder for the purpose “of being sent up to Hobart Toron for trial, though aware that in the ordinary course they must be executed within a fortnight after arrival ;” nor would tears of commiseration have been drawn from Judge Burton's eyes, by one of these cruellyused transports placed before him for sentence. In brief, had abstract equity joined with iinmediate expediency in levising convict discipline, not only would untold suffer
ing, degradation, and mortality have been prevented; but those who were responsible for atrocities like those above named, would not themselves be chargeable with crime, as we now hold them to be.
Probably we shall meet with a less general assent when, as a further benefit which the guidance of absolute morality would have conferred, we instance the prevention of such methods as those in use at Pentonville. How the silent and the separate systems are negatived by abstract justice we shall by and by see. For the present, the position we have to defend is, that these systems are bad. That but a moderate percentage of the prisoners subjected to them are reconvicted, may be true; though, considering the fallaciousness of negative statistics, thr hy no means proves that those not reconvicted are reformed. But the question is not solely, how many prisoners are prevented from again committing crime? A further question is, how many of them have become selfsupporting members of society? It is notorious that this prolonged denial of human intercourse not unfrequently produces insanity or imbecility; and on those who remain sane, its depressing influence must almost of necessity entail serious debility, bodily and mental.*
Indeed, we think it probable that much of the appareit success is due to an enfeeblement which incapacitates for crime as much as for industry. Our own objection to such methods, however, has always been, that their effect on the moral nature is the very reverse of that required. Crime is anti-social—is prompted by self-regarding feelings, and checked by social feelings. The natural prompt
* Mr. Baillie-Cochrane says:--" The officers at the Dartmoor prison Inform me that the prisoners who arrive there even after one year's confine ment at Pentonville, may be distinguished from the others by their misera. ble downgast look In most instances their brain is affected, and they are anable to give satisfctory replies to the simplest questions.".
BAD EFFECTS OF THE SOLITARY SYSTEM.
el of right conduct to others, and the natural oppoient of misconduct to others, is sympathy; for out of sympathy grow both the kindly emotions, and that sentiment of justice which restrains us from aggressions. Well, this sympathy, which makes society possible, is cultivated by social intercourse. By habitual participation in the pleasures of others, the faculty is strengthened; and whatever prevents this participation, weakens it-an effect com. monly illustrated in the selfishness of old bachelors. Hence, therefore, we contend that shutting up prisoners within themselves, or forbidding all interchange of feeling, inevitably deadens such sympathies as they have; and so tends rather to diminish than to increase the moral check to transgression. This d priori conviction, which we have uong entertained, we now find confirmed by facts. Captain Maconochie states, as a result of observation, that a long course of separation so fosters the self-regarding desires, and so weakens the sympathies, as to make even well-disposed men very unfit to bear the little trials of domestic life on their return to their homes. Thus there is good reason to think that, while silence and solitude may cow the spirit or undermine the energies, it cannot produce true reformation. “But how can it be shown,” asks the reader,
(that these injudicious penal systems are inequitable? Where is the method which will enable us to say what kind of punishment is justified by absolute morality, and what kind is not?” These questions we will now attempt to answer.
So long as the individual citizen pursues the objects of his desires without diminishing the equal freedom of any of his fellow-citizens to do the like, society cannot equita bly interfere with him. While he contents himself with the benefits win by his own energies, and attempts not to