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The Pamphlet Collection of Sir Robert Stout: Volume 4

Lecture XIV. Duty of Society in Regard to the Treatment of Criminals

Lecture XIV. Duty of Society in Regard to the Treatment of Criminals.

The punishment of criminals proceeds too much on the principle of revenge—Consequences of this error—The proper objects are the protection of society, and the reformation of the criminal—Means of accomplishing these ends—Confinement in a penitentiary till the offender is rendered capable of good conduct—Experience of the corrupting effects of short periods of imprisonment in Glasgow Bridewell—Effects of simple imprisonment—Effects of Transportation—Examples of humane treatment of criminals in Germany and France—Failure of the treadmill—Suggestion? for an improved treatment of transported convicts—American penitentiaries—Punishment of death may ultimately be abolished—Farther particulars respecting American prisons—Results of solitary and social confinement considered—Silent labour system at Auburn.

I proceed to consider the duty of the highest class of minds, in regard to criminal legislation and prison-discipline. This class has received from Providence ample moral and intellectual powers, with as much of the lower elements of our nature as is necessary for their well-being in their present sphere of existence, but not so much as to hurry them into crime. Such individuals have great moral power committed to them by the Creator, and we may presume that he will hold them responsible for the use which they make of it. Hitherto, this class, chiefly through want of knowledge, has fallen far short of page 75 their duty in the treatment of criminals. In my last Lecture, I remarked, that, as revenge is disavowed by Christianity, and condemned by the moral law of nature, we should exclude it entirely, as a principle, in our treatment of criminals; but that, nevertheless, it may be detected mingling, more or less, with many of our criminal regulations.

Under the existing system of criminal legislation, every man is held responsible for his actions, who, in the phraseology of lawyers, can distinguish between right and wrong; and this responsibility consists in being subjected to a certain extent of punishment—in other words, mental and physical suffering—proportioned to the magnitude of the offence which he has committed. Although even in the metaphysical schools of philosophy it is generally admitted, that the impulsive, and also the intellectual faculties, are distinct in their characteristics, and do not exist in fixed and definite proportions to each other in every individual, yet these facts, and the consequences which flow from them, have been and are disregarded by our criminal legislators. An individual may be born with so strong an instinct of acquisitiveness and such weak moral and intellectual powers, that, like a fox on a common, he may be actually impelled by his nature to appropriate objects suited to gratify his propensity, regardless of the preferable rights of others; or he may be destructive or deceptive in his tendencies—prompted by strong internal impulse to take away life, or to commit fraud; but the law takes no cognizance of his mental constitution. He may be grossly ignorant; he may be undergoing the pangs of starvation; or he may be surrounded by the temptations presented by intoxicating liquors and a social atmosphere of ignorance and profligacy; still the law takes no account of such things. It inquires only whether he possesses so much intellect as to know that it has declared stealing, killing, fire-raising, fraud, deception, and hundreds of other acts, to be wrong. If he is not purely idiotic or raving mad, he may be in any of the unfortunate conditions now mentioned, and yet know this fact. And this is enough for the law. It, then, by a fiction of its own, and often in opposition to the most glaring indications, assumes him to be a free and responsible being, and deals out its punishment, in other words its vengeance, upon him for having disregarded its dictates. It makes no inquiry into the effects of its inflictions on his mind. Strong in its own fiction that he is a free, moral, and responsible being, it aims at no object except deterring its subjects from actions injurious to society, and assumes that suffering is the best or only means necessary to accomplish this end; and punish him it does accordingly.

In committing men to prisons in which they shall be doomed to idleness,—in compelling them to associate, night and day, with each other (the most effectual method of eradicating any portion of moral feeling left unimpaired in their minds),—and in omitting to provide instruction for them,—society seems, without intending it, to proceed almost exclusively on the principle of revenge. Such treatment may be painful, but it is clearly not beneficial to the criminals; and yet pain, deliberately inflicted, without benefit to the sufferer, is simply vengeance. Perhaps it may be thought that this treatment will serve to render imprisonment more terrible, and thereby increase its efficacy as a means of deterring other men from offending. No doubt it will render it very terrible to virtuous men,—to individuals of the highest class of natural dispositions,—because nothing could be more horrible to them than to be confined in idleness, amidst vicious, debased, and profligate associates: but this is not the class on whom prisons are intended to operate as objects of terror; these men have few temptations to become criminals. Those to whom prisons should be rendered formidable, are the lovers of pleasure, men enamoured of an easy dissolute life, enlivened with animal excitement, not oppressed with labour, nor saddened by care, reflection, or moral restraint. Our prisons, as recently conducted, were not formidable to such characters. They promised them idleness, the absence of care, and the stimulus of profligate society. On this class of minds, therefore, they, in a great degree, lost the character of objects of terror and aversion; undeniably they were not schools of reform; and they therefore had no recognisable feature so strongly marked on them as that of instruments of vengeance, or means employed by the higher minds, for inflicting on their inferior brethren what, judging from their own feelings, they intend to be a terrible retribution, but which these lower characters, from the difference of their feelings, found to be no formidable punishment at all. Thus, through ignorance of human nature, the one class continued to indulge its revenge, in the vain belief that it was deterring offenders; while the other class proceeded in its career of crime, in nearly utter disregard of the measures adopted to deter it from iniquity; and at this day, although important improvements have been effected in prisons, criminal legislation is still far from being crowned with success.

If any class deserve punishment for these proceedings, I would be disposed to inflict it on the higher class, or on the men to whom a bountiful Creator has given ample ability to reclaim their less fortunate brethren from vice and crime, but who, through ignorance, and the helplessness that accompanies it, leave this great duty undischarged. In point of fact, the natural law does punish them, and will continue to punish them, until they adopt the right method of proceeding. If we reckon up the cost, in the destruction of life and property, expenses of maintaining criminal officers, courts of justice, and executioners,—and the pangs of sorrow, flowing not only from pecuniary loss, but from disgrace, sustained by the relatives of profligate offenders,—we may regard the sum total as the penalty which the virtuous pay for their neglect of the rational principles of criminal legislation. If the sums thus expended were collected and applied, under the guidance of enlightened judgment, to the construction and proper appointment of penitentiaries, one or more for each large district of the country, and if offenders were committed to them for reformation, it is probable that the total loss to society would not be greater than that of the present system, while the advantages would unspeakably exceed those which now exist.

In regard to the treatment of criminals when placed in such penitentiaries, I have already remarked, that, in the sentences pronounced under the present system, the principle chiefly, although unintentionally, acted on by the superior class of society, appears to be revenge. If a boy rob a till of a few pence, he is sentenced to eight days' imprisonment in jail; that is, to eight days' idleness, passed in the society of accomplished thieves and profligate blackguards, at the end of which space he is liberated. Here the quantity of punishment measured out seems to be regulated by the principle, that the eight days' confinement causes a quantity of suffering equal to a fair retribution for robbing the till. If a female steal clothes from a hedge, she is sentenced to sixty days' confinement in Bridewell, where she is forced to work, in the society of ten or a dozen of profligates like herself, during the day, and is locked up alone during the night. At the end of the sixty days she is liberated, and turned adrift on society If a man commit a more extensive theft, he is com page 76 mitted to Bridewell for three months, or perhaps transported; the term of confinement and the period of transportation bearing a uniform, and, as far as possible, a supposed just relation to the magnitude of the offence. The intention of this treatment is to cause a quantum of suffering sufficient to deter the criminal from repeating the offence, and also others from committing similar transgressions; but we shall inquire whether these effects follow.

If we renounce, altogether, the principle of vengeance as unsound, we shall still have other two principles remaining as guides to our steps: first, that of protecting society; and, secondly, that of reforming the offender.

The principle of protecting society authorizes us to do everything that is necessary to accomplish this end, under the single qualification that we shall adopt that method which is most beneficial to society, and least injurious to the criminal. If, as I have contended, the world be really constituted on the principle of the supremacy of the moral sentiments, we shall find, that whatever measures serve best to protect the public interests, will also be most beneficial for the offender, and vice versa. In the view, then, of social protection, any individual who has been convicted of infringing the criminal law, should be handed over, as a moral patient, to the managers of a well-regulated penitentiary, to be confined in it, not until he shall have endured a certain quantity of suffering, equal in magnitude to what is supposed to be a fair revenge for his offence, but until such a change shall have been effected in his mental condition, as may afford society a reasonable guarantee that he will not commit fresh crimes when he is set at large. It is obvious that this course of procedure would be humanity itself to the offender, compared with the present system, while it would unspeakably benefit society. It would convert our prisons from houses of retribution and of corruption, into schools of reform. It would require, however, an entire change in the principles on which they are conducted.

The views which I have expounded in this and the preceding Lecture are strongly elucidated and confirmed by a report of the state of the Glasgow Bridewell in 1826, which I obtained from the late Mr Brebner, the enlightened and truly humane superintendent of that establishment:—