Blackwood's Edinburgh Magazine, Volume 58, Number 358, August 1845. Various

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СКАЧАТЬ 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.

      In matters of penal legislation, there are two currents of thought, which must be always kept distinct. The one relates to the natural and little cultivated feelings of mankind, which demand retaliation for injuries committed—a vindictive or retributive justice. Here is found the rude motive power by and on which legislation has to work; sometimes shaping these feelings to its purposes, sometimes shaping its purposes to them. The other current of ideas is purely legislative, purely prospective, having for its sole end the well-being of society, and looking on punishment; not as retributive, or vindictive, or as morally due, but as a sad necessity for the preservation of order.

      In reference to the latter and only legislative mode of thinking, how extremely illogical does it appear this attempt to ward off the penal blow from a guilty party, or to excite our commiseration for him on the ground that we all share the same passions and frailties of that guilty party! Why, if such passions and frailties were not general, there would be little need of punishment. It is because they are general, that the legislature is compelled to be so watchful and energetic. If to take the object of desire from our neighbour were a rare propensity, an extraordinary phenomenon, we might let the prison sink into happy ruin, and a most cheerful desolation.

      We have seen how the German, in his metaphysical manner, disposed of the right of society to put one of its members to death; the Captain, though no metaphysician, proves, in a manner quite as bold and singular, that the state has really no right to inflict any punishment that is not of a reformatory character. It is true he admits of punishment—could a man of his experience do otherwise? But he admits it only as a part of his curative process. It is to induce "submission and penitence." He can so far blind himself by his love of theory, or rather his tenacity to one point of view, that he seems to suppose, that reform of the criminal being the direct object, he would commence his treatment by penal inflictions. "As already observed, a fever must be reduced before its ravages are sought to be repaired; a wound must be probed and cleansed before it can be healed up." And this surgical instance seems to have satisfied his mind, that the exacerbations consequent on punishment are an indispensable preparation for a moral restoration. As to the old-fashioned notion that punishment has for its legitimate and primary object to deter others from offending, he denounces this, if pursued as an independent aim, as a flagrant injustice; he regards such criminals who are punished for this end only, as sacrifices cruelly offered up for the benefit of the public.

      "In the infancy of society," reasons Captain Maconochie, "and under every form of pure despotism, the individual is nothing, and the commonwealth, or its chief, every thing. But just as intelligence and true knowledge of state policy extend, does this state of things become reversed; and in England already, the maxim is become almost universal, that private rights are never to be invaded without compensation. In two departments only is there still a systematic deviation from this rule in practice. Impressment, in which the compensation made, though it has increased much of late years, must still be considered inadequate—for otherwise the act itself would be unnecessary; and the punishment of offenders with a view to example only, in which they have no concern, and to which their individual interests are yet unhesitatingly sacrificed. In both cases the same plea of state necessity is offered in justification; but it will not do. As society advances, and individuals become more sensible of their own worth, their claims to regard above such abstractions become more and more evident."—(General Views, &c., p. 11.)

      We would modestly suggest that before this curious analogy can be made complete, government ought to press for hanging as well as the sea service. If the sheriff and his bailiffs sallied forth, and seized upon some hapless wight, thrust the king's money into his hand, and thus enlisted him into the hanging corps for the benefit of the community, the resemblance would be perfect. But no one, not even the high-sheriff himself, has the least desire to obtain a single recruit for this forlorn service; the members of which force themselves in a most unwelcome manner upon the state. Still less, if possible, does the government desire to be at the expense of erecting large buildings, and maintaining numerous garrisons of all species of felons. "Banishment of offenders, with a view to example only, in which they have no concern, and to which their individual interests are yet unhesitatingly sacrificed!" Indeed, but they have! He who is punished for theft has still his life to be preserved, and may one day have his property also to be protected by the same law under which he is suffering. One can imagine the strange effect it would produce upon the ignoble army of martyrs which throng our jails, to be told that they were sacrifices to society—victims whom the community was offering up, most unjustifiably, on the altar of its own interests! At first, the idea would be a little dim and mysterious; but, after a short time, the flattering nature of the doctrine would doubtless be sufficient to insure its reception. They would, thereupon, call in the jailer, and the chief spokesman of the party would thus address him:—"We perceive, O jailer! that society is consulting its own interests in our punishment, and not, as it is bound to do, our especial benefit and advantage. As we have learned that stripes and bondage are to be inflicted on no man but for his own good, and as we are all agreed, after considerable experience, that we derive no benefit whatever from them, and you, O jailer! must be satisfied that, as medical treatment, they are worse than inefficacious, we demand, in the name of justice and human reason, our immediate dismissal."

      To those who value no information but such as assumes the shape of detail of facts, or can be reduced to figures, and exhibited in the shape of statistical tables, we shall perhaps appear to be wasting time in examining the mere errors of reasoning on this important subject of penal discipline. We think otherwise. We apprehend there is nothing more necessary than to keep active and zealous men steady to first principles in subjects of great general interest. We are not guilty of underrating the value of statistical tables; albeit we have seen figures arrayed against figures, as if there were two arithmetics, as if there were two churches in the doctrines of addition and multiplication; but the truth СКАЧАТЬ