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The Pamphlet Collection of Sir Robert Stout: Volume 76

I

I.

Confining our attention, then, to the convicted criminal, there are two questions which must be considered before we discuss the best manner of dealing with him. They are: What is the criminal? and What do we mean when we speak of the punishment due to his offence?

To take the second question first, there seem to be three conceivable ways in which we may regard his amenability to (what we must for the present call) punishment. First, we may consider his offence as an outrage against society, and say that outraged society has a right to vindicate and avenge itself. This is the earliest view of crime that organized society will take, and in fact all our existing laws for the repression of crime are based upon it. It is simply transferring to society the right of revenge which in barbarous ages lay with the individual wronged—the old crude rule, "an eye for an eye, and a tooth for a tooth," no longer carried out by the individual but by the community to which he belongs on his behalf. It is not so very long since English criminal courts attempted no more than to regulate the exercise of private vengeance—to arbitrate between the parties, and estimate or limit the penalty that might be exacted by the injured one. And much page 11 of the procedure of our courts—the notices and appearances-may be traced (as Sir Henry Maine has shown) to this period. The first attempt to modify primitive barbarity was the establishment of the wergild, or pecuniary compensation, for injuries inflicted. But even this was not a penalty demanded by the State; it was a compensation paid by the offender to the injured party or his representatives. In process of time the State grew strong enough to prohibit altogether the practice of private revenge and to treat all offences as committed against itself-against society at large. So our statute laws now attempt to estimate the penalty due to each particular offence, and, that having been inflicted, society is supposed to be satisfied, and the criminal to have purged his crime, and to be able to start his life again at the point he had reached before he was convicted. This method has certainly the merit of simplicity, but it is clear that neither our legislators nor our people have for a long time regarded it as satisfactory. For a long time now statutes have stated in regard to offences, not the exact penalty due to each, as was the case formerly, but the maximum penalty that may be inflicted—not exceeding so long—leaving it to the judges to consider the special circumstances of each case. For an equally long time public opinion has certainly not regarded the criminal who has purged his offence quite as if he had never offended. And it has long since been evident to all that it is impossible to assign the fit penalty due to each offence, for the heinousness of crime depends very much upon the circumstances under which an offence is committed, and a specific penalty may be trivial or severe, according to the condition of the person upon whom it is inflicted—upon his education, his refinement, his surroundings, his character, his social position.

We pass on, then, to the second stage in the development of opinion—the view that punishment should be inflicted, not in revenge, but as a deterrent, both as regards the criminal himself and others who may be tempted to follow in his steps. As regards the criminal himself, the punishment is sup- page 12 posed to destroy his tendency to crime as the cane it supposed to cure the schoolboy of his laziness. As regards others, the knowledge of his sufferings is expected to act as a warning and deterrent. Naturally, the general adoption of this view led at first to great severity in punishment. It was found that punishment did not deter, it only led to greater cunning in the effort to escape detection. Heavier and heavier sentences were adopted without success. Dr Wines, in "Punishment and Reformation," gives a chapter to the ingenious and horrible methods adopted in mediæval times in Europe to intensify torture in the vain hope of overcoming this difficulty. Soon it forced itself upon the magisterial mind that if all these ingeniously-devised sufferings failed to reform the criminal, there was but one thing left—to kill him; and that that would have the greatest effect of all upon others. So death became the penalty for half the crimes in the calendar. In Henry VIII's reign in England, it is said that 71,400 persons were hanged—chiefly as thieves and vagabonds. Even at the beginning of the present century something like a hundred crimes were visited by the death penalty in England, and in the first half of the present century no less than 2,734 persons suffered in this way, often for such crimes as sheep-stealing or purloining post-office letters—among others a child of nine for stealing a pot of paint worth twopence-halfpenny, and another of twelve for riot! Still crime increased. Humanity sickened at the sight of the constant slaughter, and criminals either became reckless or relied upon this general disgust to influence the juries, and so enable them to escape on any specious plea. And now a reaction has set in, and the period of excessive severity has been followed by what (if the punishment is still believed, or intended, to have any exact relationship to the crime committed) is one of excessive leniency. But light penalties prove themselves no more a deterrent from crime than heavy ones. Indeed, it is clear that the only effective deterrent must be found in greater police efficiency. No punishment after detection which has any element of doubt in it is likely to deter a criminal except in so far as it makes page 13 him more careful to avoid it, while certainty of detection, however inconsiderable the penalty that follows, must have much effect upon at least the first offender.

But now the whole question of punishment, whether in the form of expiation, or as a deterrent, is in process of reconsideration. The first note of revolt against established ideas came, as was right, from the Church. In 1704 Pope Clement XI. established at Rome, St. Michael's "House of Correction." Earlier still the Society for the Promotion of Christian Knowledge in England signalised the first year of its existence (1699) by appointing a committee to consider the condition of prisons, of which its chief founder, Dr Bray, was chairman. The committee reported in strong opposition to the existing system in 1700, and in 1710 Dr Bray published his tract, "An Essay towards Reformation of Newgate and other Prisons." But times were not ripe for reform, and no result followed upon these efforts, nor did anything else result from Bishop Butler's sermon on the same subject in 1740, or Mr Denne's pamphlet in 1772. Later on the question became more insistent, and among early writers we must not forget M. Bonneville de Marsangy in France (1846) and Mr Hill, brother of Rowland Hill, Recorder of Birmingham (1856), to the last of whom we owe the phrase, well known in penological literature, "Reformation or Incapacitation", an apt summing up of the latest ideas, to which I shall refer later on.

But it is only within about the last twenty years that the question has commanded general attention. Now it is a "burning" question and men are beginning to ask whether punishment, as such, has any true place at all in Society's dealing with the criminal?—is it of any value at all, remedial or deterrent?—has Society any right at all to inflict it? As to its value it is found that brutalized habitual criminals do not in the least fear the punishment now inflicted, nay there are cases, many such, where criminals have expressed regret at the shortness of their sentence, or where they have deliberately allowed themselves to be arrested in order that they might enjoy an inexpensive and not altogether page 14 unpleasant period of rest and regular living for the re-establishment of the health, which vice and excitement had undermined. And from another point of view many writers have argued that the publicity and notoriety given to crime by our present system has the worst effect upon many emotional persons who, brooding over the matters thus brought before them, are led step by step into actions which are really abhorrent to their true nature There certainly seems ground for this opinion in the frequently observed fact that a startling crime, a specially cruel murder, for instance, or an unusual form of financial dishonesty, is often followed by a crop of similar crimes which at least appear to be imitations of it, and psychological science is only on the borderland of its investigations into that strange influence upon human thought and conduct which is known as "suggestion." For these and other reasons it is urged that our estimate of the value of punishment, as either a remedy for or a deterrent from crime, must be greatly modified, if not altogether abandoned. Then, if, as it seems, the old idea of punishment as an expiation for or purging of crime has been finally given up, what is to take the place of these discarded views? The answer must be—the third of the three views of which I have spoken—namely that the duty of society towards the criminal is not to revenge itself upon him, not even to punish him as a warning to others, but to cure, to reform him. It is urged by the advocates of this view that society is an organic whole, that any corrupt spot in it is a blemish to the whole for which the whole is in some sense responsible, that it cannot be perfect while any such corrupt spot remains in it, that its duty, therefore, is not to vent its indignation upon and belabour the offending part, as some small child might do, but to recognise that the local evil must proceed from some general conditions of unhealthiness in the whole, and, therefore, to deal tenderly with the part affected while devoting most of its attention to the recovery and perfecting of the general health. Such a view will demand that the criminal be treated not as an enemy outside of society, but as an page 15 integral part of it who has, whether by his own fault or by that of others, fallen into moral sickness for which he is to be treated in a prison on precisely similar lines to those on which one suffering from physical sickness is treated in a hospital. And if this view be correct, the question whether society has any right to inflict punishment is also answered Among savages bodily ailments or abnormalities are frequently punished, sometimes even by death, and to quite recent times in "civilized" countries, madmen were chained and beaten, while lepers and other sufferers regarded as incurable, or as suffering from some direct judgment of the Deity upon them for their sins, were driven from any intercourse with their fellows and deprived of all the amenities of life. All this has passed away and men are beginning to ask whether society has any more right to punish the homicide, the thief, the morally weak, than it is now admitted to have to punish the leper, the epileptic, the mentally afflicted. Of course every one allows there are precautions which society must take for its own protection—of segregation and disinfection—but these apply to one kind of sickness as well as to the other, and stand quite apart from the question of punishment. The real point is—one man is often as much to blame (or as little) for his gout, his broken limb, or his imbecility, as another is for his violence, his dishonesty or his immorality—why then should the two be so differently treated?

This question will gain vastly additional force when we consider what the criminal is. Meanwhile the duty of the State—society in its legislative and administrative aspect—according to this view is either to cure the part of the body affected—the criminal—or, if that is impossible, so to confine its activity that the rest of the body may not suffer from its corruption, as Recorder Hill put it forty years ago, "Reformation or Incapacitation."