Book 7, Chapter 06 : Scale of Punishment

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Book 7, Chapter 06

BOOK VII
OF CRIMES AND PUNISHMENTS


CHAPTER VI

SCALE OF PUNISHMENT


	Its sphere described. - its several classes. -
	Death with torture. - Death absolutely. -
	Origin of this policy - in the corruptness of 
	political institutions - in the inhumanity of 
	the instituters. - Corporal punishment. - Its 
	absurdity. - its atrociousness. - Privation of 
	freedom. Duty of reforming our neighbor 
	an inferior consideration in this case. - Its 
	places described. - Modes of restraint, - Indis-
	criminate imprisonment. - Solitary imprison-
	ment. - Its severity - Its moral effects. -
	Slavery. - Banishment. - 1.Simple banishment. 
	- 2.Transportation. - 3. Colonization. - This 
	project has miscarried from unkindness - from 
	officiousness. - Its permanent evils, - Recapitu-
	       lation.

IT is time to proceed to the consideration of certain inferences that may be deduced from the theory of punishment which has now been delivered; nor can anything be of greater importance than these inferences will be found, to the virtue, the happiness and improvement of mankind.

And, first, it evidently follows that punishment is an act of painful necessity, inconsistent with the true character and genius of mind, the practice of which is temporarily imposed upon us by the corruption and ignorance that reign among mankind. Nothing can be more absurd than to look to it as a source of improvement. It contributes to the generation of excellence, just as the keeper of the course contributes to the fleetness of the race. Nothing can be more unjust than to have recourse to it, but upon the most unquestionable emergency. Instead of multiplying occasions of coercion, and applying it as the remedy of every moral evil, the true politician will anxiously confine it within the narrowest limits, and perpetually seek to diminish the occasions of its employment. There is but one reason which can, in any case, be admitted as its apology, and that is where the allowing the offender to be at large shall be notoriously hazardous to public security.

Secondly, the consideration of restraint as the only justifiable ground of punishment will furnish us with a simple and satisfactory criterion by which to measure the justice of the suffering inflicted.

The infliction of a lingering and tormenting death cannot be vindicated upon this hypothesis; for such infliction can only be dictated by sentiments of resentment on the one hand, or by the desire to exhibit a terrible example on the other.

To deprive an offender of his life in any manner will appear to be unjust, as it seems always sufficiently practicable, without this, to prevent him from further offense. Privation of life, though by no means the greatest injury that can be inflicted, must always be considered as a very serious injury; since it puts a perpetual close upon the prospects of the sufferer as to all the enjoyments, the virtues and the excellence of a human being.

In the story of those whom the merciless laws of Europe doom to destruction, we sometimes meet with persons who, subsequently to their offense, have succeeded to a plentiful inheritance, or who for some other reason appear to have had the fairest prospects of tranquility and happiness opened upon them. Their story, with a little accommodation, may be considered as the story of every offender. If there be any man whom it may be necessary, for the safety of the whole, to put under restraint, this circumstance is a powerful plea to the humanity and justice of those who conduct the affairs of the community, in his behalf. This is the man who most stands in need of their assistance. If they treated him with kindness, instead of supercilious and unfeeling neglect, if they made him understand with how much reluctance they had been induced to employ the force of the society against him, if they represented the true state of the case with calmness, perspicuity and benevolence to his mind, if they employed those precautions which an humane disposition would not fail to suggest, to keep from him the motives of corruption and obstinacy, his reformation would be almost infallible. These are the prospects to which his wants and his misfortunes powerfully entitle him; and it is from these prospects that the hand of the executioner cuts him off for ever.

It is a mistake to suppose that this treatment of criminals tends to multiply crimes. On the contrary, few men would enter upon a course of violence with the certainty of being obliged, by a slow and patient process, to amputate their errors. It is the uncertainty of punishment under the existing forms that multiplies crimes. Remove this uncertainty, and it would be as reasonable to expect that a man would willfully break his leg, for the sake of being cured by a skillful surgeon. Whatever gentleness the intellectual physician may display, it is not to be believed that men can part with rooted habits of injustice and vise without considerable pain.

The true reasons in consequence of which these forlorn and deserted members of the community are brought to an ignominious death are, first, the peculiar iniquity of the civil institutions of that community, and, secondly, the supineness and apathy of their superiors. In republican and simple forms of government, punishments are rare, and the punishment of death almost unknown. On the other hand, the more there is in any country of inequality and oppression, the more punishments are multiplied. The more the institutions of society contradict the genuine sentiments of the human mind, the more severely is it necessary to avenge their violation.. At the same time the rich and titled members of the community, proud of their fancied eminence, behold, with total unconcern, the destruction of the destitute and the wretched, disdaining to recollect that, if there be any intrinsic difference between them, it is the offspring of their different circumstances, and that the man whom they now so much despise might have been found as accomplished and susceptible as they if lie had only changed situations. When we behold a company of poor wretches brought out for execution, reflection will present to our affrighted fancy all the hopes and possibilities which are thus brutally extinguished, the genius, the daring invention, the unshrinking firmness, the tender charities and ardent benevolence, which have occasionally, under this system, been sacrificed, at the shrine of torpid luxury and unrelenting avarice.

The species of suffering commonly known by the appellation of corporal punishment is also proscribed by the system above established. Corporal punishment, unless so far as it is intended for example, appears, in one respect, in a very ludicrous point of view. It is an expeditious mode of proceeding which has been invented in order to compress the effect of much reasoning and long confinement, that might otherwise have been necessary, into a very short compass. In another view, it is difficult to express the abhorrence it ought to create. The genuine propensity of man is to venerate mind in his fellow man. With what delight do we contemplate the progress of intellect, its efforts for the discovery of truth, the harvest of virtue that springs up under the genial influence of instruction, the wisdom that is generated through the medium of unrestricted communication? How completely do violence and corporal infliction reverse the scene? From this moment, all the wholesome avenues of mind are closed, and, on every side, we see them guarded with a train of disgraceful passions, hatred, revenge, despotism, cruelty, hypocrisy, conspiracy and cowardice. Man becomes the enemy of man; and stronger are seized with the lust of unbridled domination, and the weaker shrink, with hopeless disgust, from the approach of a fellow. With what feelings must an enlightened observer contemplate the furrow of a lash imprinted upon the body of a man? What heart beats riot in unison with the sublime law of antiquity, 'Thou shalt not inflict stripes upon the body of a Roman?' There is but one alternative in this case, on the part of the sufferer. Either his mind must be subdued by the arbitrary dictates of the superior (for to him all is arbitrary that does not stand approved to the judgment of his own understanding); he will be governed by something that is not reason, and ashamed of something that is not disgrace; or else every pang he endures will excite the honest indignation of his heart, and fix the clear disapprobation of his intellect, will produce contempt and alienation against his punisher.

The justice of punishment is built upon this simple principle: Every man is bound to employ such means as shall suggest themselves for preventing evils subversive of general security, it being first ascertained, either by experience or reasoning, that all milder methods are inadequate to the exigency of the case. The conclusion from this principle is that we are bound, under certain urgent circumstances, to deprive the offender of the liberty he has abused. Further than this perhaps no circumstance can authorize us. He whose person is imprisoned (if that is the right kind of seclusion) cannot interrupt the peace of his fellows; and the infliction of further evil, when his power to injure is removed, is the wild and unauthorized dictate of vengeance and rage, the wanton sport of unquestioned superiority.

When indeed the person of the offender has been first seized, there is a further duty incumbent on his punisher, the duty of endeavoring his reform. But this makes no part of the direct consideration. 'The duty of every man to contribute to the intellectual health of his neighbor is of general application. Beside which it is proper to recollect, what has been already proved, that coercion of no sort is among the legitimate means of reformation. Restrain the offender as long as the safety of the community prescribes it, for this is just. Restrain him not ail instant from a simple view to his own improvement, for this is contrary to reason and morality.

Meanwhile, there is one circumstance by means of which restraint and reformation are closely connected. The person of the offender is to be restrained as long as the public safety would be endangered by his liberation. But the public safety will cease to be endangered as soon as his propensities and dispositions have undergone a change. The connection which thus results from the nature of things renders it necessary that, in deciding upon the species of restraint to be imposed, these circumstances be considered jointly, how the personal liberty of the offender may be least entrenched upon, and how his reformation may be best promoted.

The most common method pursued in depriving the offender of the liberty he has abused is to erect a public jail, in which offenders of every description are thrust together, and left to form among themselves what species of society they can. Various circumstances contribute to imbue Them with habits of indolence and vise, and to discourage industry; and no effort is made to remove or soften these circumstances. It cannot be necessary to expatiate upon the atrociousness of this system. jails are, to a proverb, seminaries of vise; and he must be an uncommon proficient in the passion and the practice of injustice, or a man of sublime virtue, who does not come out of them a much worse man than he entered.

An active observer of mankind,1 with the purest intentions, and who had paid a singular attention to this subject, was struck with the mischievous tendency of the reigning system, and called the attention of the public to a scheme of solitary imprisonment. But this, though free from the defects of the established mode, is liable to very weighty objections.

It must strike every reflecting mind as uncommonly tyrannical and severe. It cannot therefore be admitted into the system of mild coercion which forms the topic of our inquiry. Man is a social animal. How far he is necessarily so will appear if we consider the sum of advantages resulting from the social, and of which lie would be deprived in the solitary state. But, independently of his original structure, lie is eminently social by his habits. Will you deprive the man you imprison of paper and books, of tools and amusements? One of the arguments in favor of solitary imprisonment is that it is necessary the offender should be called off from wrong habits of thinking, and obliged to center into himself. For this the advocates of solitary imprisonment probably believe will be most effectually done the fewer be the avocations of the prisoner. But let us suppose tracer lie is indulged in these particulars, and only deprived of society. How many men are there that can derive amusement from books' We are, in this respect, the creatures of habit, and it is scarcely to be expected from ordinary men that they should mold themselves to any species of employment to which in their youth they were strangers. But he that is most fond of study has his moments when study pleases no longer. The soul yearns, with inexplicable longings, for the society of its like. Because the public safety unwillingly commands the confinement of an offender, must he for that reason never light up his countenance with a smile? Who can tell the sufferings of him who is condemned to uninterrupted solitude? Who can tell that this is not, to the majority of mankind, the bitterest torment that human ingenuity can inflict? A mind sufficiently sublime might perhaps conquer this inconvenience: but the powers of such a mind do not enter into the present question.

From the examination of solitary imprisonment, in itself considered, we are naturally led to inquire into its real tendency as to the article of reformation. To be virtuous, it is requisite that we should consider men, and their relation to each other. As a preliminary to this study, is it necessary that we should he shut out from the society of men? Shall we be most effectually formed to justice, benevolence and prudence in our intercourse with each other, in a state of solitude. Will not our selfish and unsocial dispositions be perpetually increased? What temptation has he to think of benevolence or justice, who has no opportunity to exercise it? The true soil in which atrocious crimes are found to germinate is a gloomy and morose disposition. Will its heart become much either softened or expanded, who breathes the atmosphere of a dungeon? Surely it would be better in this respect to imitate the system of the universe, and, if we would teach justice and humanity, transplant those who we would teach into a simple and reasonable state of society. Solitude, absolutely, considered, may instigate its to serve ourselves, but not to serve our neighbors. Solitude, imposed under too few limitations, may be a nursery for madmen and idiots, but not for useful members of society. Another idea which has suggested itself with regard to the removal of offenders from the community they have injured is that of reducing them to a state of slavery or hard labor. The true refutation of this system is anticipated in what has been already said. To the safety of the community it is unnecessary. As a means to the reformation of the offender. it is inexpressibly illconceived. Man is an intellectual being. There is no way to make him virtuous but in calling forth his intellectual powers. There is no way to make him virtuous but by making him independent. He must study the laws of nature, and the necessary consequence of actions, not the arbitrary caprice of his superior. Do volt desire that I should work? Do not drive me to it with the whip; for, if, before, I thought it better to be idle, this will but increase my alienation. Persuade my understanding, and render it the subject of my choice. It can only be by the most deplorable perversion of reason that we can be induced to believe any species of slavery, from the slavery of the school boy to that of the most unfortunate Negro in our West India plantations, favorable to virtue.2

A scheme greatly preferable to any of these, and which has been tried under various forms, is that of transportation or banishment. This scheme under the most judicious modifications, is liable to objection. It would be strange if any scheme of coercion or violence were not so. Butl it has been made appear still more exceptional than it will be found in its intrinsic nature by the crude and incoherent circumstances with which it has usually been executed.

Banishment in its simple form, that is, a mere prohibition of residence has, at least in certain aggravated cases, a strong appearance of injustice. The citizen whose presence we will not endure in our own country, we have a very questionable right to impose upon any other.

Banishment has sometimes been joined with slave. Such was the practice of Great Britain previously to the defection of her American colonies. This cannot stand in need of a separate refutation.

A very usual species of banishment is removal to a country yet unsettled. Something may be alleged in favor of this mode of proceeding. The labor by which the undisciplined mind is best weaned from the vicious habits of a corrupt society is the labor, not which is prescribed by the mandate of a superior, but which is imposed by the necessity of subsistence, The first settlement of Rome, by Romulus and his vagabonds, is a happy image of this, whether we consider it as a real history, or as the ingenious fiction of a writer well acquainted with the principles of mind. Men who are freed from the injurious institutions of European government, and obliged to begin the world for themselves, are in the direct road to be virtuous.

Two circumstances have hitherto contributed to render this project abortive. First, that the mother-country pursues this species of colony with her hatred. The chief anxiety is, in reality, to render its residence odious and uncomfortable, with the vain idea of deterring offenders. The chief anxiety ought to be to smooth their difficulties, and contribute to their happiness. We should recollect that the colonists are men, for whom we ought to feel no sentiments but those of kindness and compassion. If we were reasonable, we should regret the cruel exigence that obliges us to treat them in a manner unsuitable to the nature of mind; and having complied with the demand of that exigence, we should next be anxious to confer upon them every benefit in our power. But we are unreasonable. We harbor a thousand savage feelings of resentment and vengeance. We thrust them out to the remotest corner of the world. We subject them to perish by multitudes with hardship and hunger. Perhaps, if our treatment of such unfortunate men were sufficiently humane, banishment to the Hebrides would prove as effectual as banishment to the Antipodes.

Secondly, it is absolutely necessary, upon the principles here explained, that these colonists, after having been sufficiently provided in the outset, should be left to themselves. We do worse than nothing if we pursue them into their obscure retreat with the inauspicious influence of our European institutions. Why trouble ourselves with sending magistrates and officers to govern and direct them? Do we suppose that, if left to themselves, they would universally destroy each other? On the contrary, new situations make new minds. The worst criminals, when turned adrift in a body, and reduced to feel the churlish fang of necessity, conduct themselves upon reasonable principles, and have been found to proceed with a sagacity and public spirit that might put the proudest monarchy to the blush.

Meanwhile let its not forget the inherent vises of punishment, which present themselves from whatever point from which the subject is viewed. Colonization may be thought the most eligible of those expedients which have been stated, but it is attended with considerable difficulties. The community judges of a certain individual that his residence cannot be tolerated among them consistently with) the general safety. In denying him his choice among other communities do they not exceed their commission? What treatment shall be awarded him if he return from the banishment to which he was sentenced? -- These difficulties (and many others might be subjoined to these) are calculated to bring back the mind to the absolute injustice of punishment, and to render us inexpressibly anxious for the period at which it shall be abolished.

To conclude,the observations of this chapter are relative to a theory which affirmed that it might be the duty of individuals, but never of communities, to exert a certain species of political coercion; and which founded this duty upon a consideration of the benefits of public security. Under these circumstances then, every individual is bound to judge for himself, and to yield his countenance to no other coercion than that which is indispesably necessary. He will, no doubt, endeavor to meliorate those institutions, with which he cannot prevail upon his countrymen to part. He will decline all concern in the execution of such, as abuse the plea of public security to atrocious purposes. Laws may easily be found in almost every code which, on account of the iniquity of their provisions, are suffered to fall into disuse by general consent. Every lover of justice will, in this way, contribute to the repeal of laws that wantonly usurp upon the independence of mankind, whether by the multiplicity of their restrictions, or the severity of their sanctions.

Footnotes

1Mr Howard.37
2The institution of personal slavery has, within a few years, made a considerable progress in the island of Great Britain . The first step was that of sending criminals, whose guilt was of an inferior description, to raise ballast from the bed of the Thames. The second step, more serious in its nature, appears to have resulted from the well intended, but misguided, philanthropy of Mr. Howard. This consisted in the erecting jails of solitary confinement in various parts of the country. The prisoners in these jails spend a large proportion of their time shut tip in silent and dreary cells, like so many madmen. The rest of their time is employed in what is called hard labor, under the inspection of certain ignorant and insolent task-masters. It is asserted that, in one of these jails (Clerkenwell New Prison), its unfortunate tenants are engaged for five hours in each day in trundling a wheel-barrow round in a circle. The cruelty of this Opposition is inexpressibly heightened by its imprudent lawlessness, Front this instance we may perceive that the inventiveness of tyranny did not perish with the race of Dionysii. Cases of this sort it is our duty, as citizens, to notice, that the chance of their existing without the knowledge of those to whose province their superintendence belongs may be removed.

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January 27, 2017 19:21:18 :
Book 7, Chapter 06 -- Added to http://www.RevoltLib.com.

September 23, 2017 10:09:17 :
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