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\Ve have been told that it is better that a thousand guilty persons should escape punishment than that one innocent person should suffer punishment. I do not agree with this opinion ; because it is subversive of all government. If a thousand, why not all? and since it is human to err, why not abolish all crimes and all punishments? To act on this sentiment is subversive of all government, unless on the supposition that there was no crime to punish ; and, in that case, there would be an ideally perfect and moral society. So long as there is wrong-doing in the world, there must be punishment in some shape or another, and either in pecuniary fines or corporeal punishment. But it should never be intentionally or deliberately inflicted on innocent persons, directly or indirectly. Vicarious punishment is inconsistent with and contrary to human justice. The civil responsibility of a husband for his wife, or of a master for his servant, is no violation of this principle; but is the infliction of civil liability on a person in whose power the real offender is. Vicarious punishment cannot always be avoided as the consequence of wrong-doing ; but should not be the direct act of the State. Instances of transitive punishment may be taken from corruption of blood in rebellion and high treason. Such punishment is monstrously unjust as regards its consequence in the forfeiture of property. Rebellion is not necessarily synonymous with wickedness, and may even be justiflable. It is sometimes the result of the fortunes of war, and not of impartialjustice. But of all unjust laws ex post facto laws are the worst; for they violate every principle of just and good government.
The main objects of Penal justice, as laid down by Bentham, are these :—
I. Example; or the prevention of similar offences by individuals at large, by the influence of punishment on the minds of by-standers from an apprehension of similar suffering on a similar delinquency.
II. Reformation; or the prevention of similar offences on the part of the particular individual punished in each instance, by taking from him the will to commit the like offence in future.
III. Incapacitation; or the taking from the delinquent the power of committing the same crimes.
IV. Satisfaction to the person injured.—This object is, I think, too much neglected in our laws.
V. Economy to the public.—This is not a high quality. Great expense may be the truest economy.
Bentham makes the following important observations: —All our forms of punishment should be put to these five tests, and should be subjected most especially to all except the last; and, when adopted by the Legislature, should be inflicted as directed, and should not be over-ruled by subordinate officials in the Government. Punishments are an absolute necessity of our present condition of society. Rewards are not at the command of the Legislator to secure perfect obedience to his commands. No Sovereign is so rich as to be able to effect everything by means of rewards. But, fortunately, there are few parents who are not rich enough for this purpose.
I shall now consider the three forms of Punishment more at large than I have hitherto done.
(1.) Imprisonment.—-The great objects of imprisonment are the reform of offenders, and the gradual good condition and amendment of prisoners in health of body and mind, propriety of conduct, and industry. These objects cannot be attained until the former bad manners and habits, moral and physical, are changed, and new manners and habits have taken the place of the old. When these objects are attained, the public will be secure against offenders, and an enormous expense will be removed from the shoulders of the well-behaved and industrious classes of the community. Although some judges and Magistrates give ridiculously absurd short sentences for offences against person and property, offenders should, if possible, not be allowed to get out of prison till their bad habits have been changed, and new and good ones formed. Prisoners should be treated like insane persons, or persons affected with contagious diseases, and should not be allowed to mingle and associate with the sane and the healthy till their minds and bodies and habits
'are in a sound and healthy condition. In order partially to
accomplish these objects, much greater attention should be devoted to offenders when, on the expiry of their sentences, they are about to enter into the society of their old friends, acquaintances, and associates, or the world at large, in order that employment, the means of livelihood, and a new career should be opened up to them. What is the use of keeping offenders in prison for a few weeks, or a few months, or a few years, if they are again to fall into their old evil ways? Attached to every prison, there ought to be a subsidiary establishment, where prisoners should be allowed to remain till they have got a fair start in their new life.
In these observations on imprisonment, I have been referring to imprisonment as a punishment. Here I have to add a few words on imprisonment by way of security. As a general rule, every person charged with an offence should be entitled to his freedom till his trial, on sufficient security being found for his appearance at his trial, or when called on by the judge to appear before him. In the event of such security not being found to the satisfaction of a judge, the alleged offender should be imprisoned by way of security until his trial; and should be treated, in every other respect, as innocent of the charge made against him, and should have his trial brought forward with all speed consistent with justice to the public and justice to the prisoner. As a matter of justice and prudence, offences should be tried and punishment inflicted, or innocence found, as early as possible ; because nothing can fully compensate a man who is innocent of a criminal charge made against him, and nothing can so amply punish an offender really guilty as swift and condign punishment. The more immediate and close the two ideas of criminality and punishment are seen by the offender to be cause and effect, the greater his chance of amendment, and the better for Society.
As regards Houses of Penitence, I have to state that the administration of houses of penitence is a very difficult matter; for they ought to be suited to the differences in the dispositions of men and women, young and old, in the shape of measures of severity or indulgence. Knowing that the differences in character are infinite, and that circumstances are so diverse that they are not the same for two individuals, we may easily conclude that the task of such administration is impossible of complete realisation. But we have always one important fact to guide us in our treatment of an 0ffender,—that is to say, that, if we are attentive enough, the character of the delinquent can be inferred from the offence, and from the circumstances in which the offence was committed. Thus, if we are known to have acquired certain moral habits, we are held in esteem in proportion as these habits are valued in the community; and ifwe have acquired certain immoral habits, we are not so held in esteem. When people are feeble, we pity them. When they are cruel we hate them. When they are false, we do not trust them. Although a person is deterred from crime by the fear of punishment, he is not reformed. “ Reformation,” says Bentham, “implies a change of character and moral dispositions.” Inasmuch as poverty, ignorance and drunkenness are, as I have stated, the great sources of crime, we should direct our highest energies, in the reformation of criminals, to the eradication of these three great sources. When people are young, new habits of life can be acquired; but, when they are old, they cannot be so to any very great extent. Hence so little good has been effected by any kind of imprisonment. But, so far as yet known, by reasoning, observation, or experience, the best treatment of prisoners guilty of rapacity is to get them to learn habits of industry, and turn to honest labour to gain the means of an honest livelihood; and of those who are guilty of cunning, to direct them towards a useful application of their habits, and to devote themselves to their own highest interests, which, properly understood, will be those of the community at large. Ignorance must be extirpated by education, moral as well as intellectual. Drunkenness must be extirpated by enforced or voluntary habits of temperance and sobriety. Mankind must be acted upon through their wills, which should be directed towards the realisation of good and useful and national objects, and by a thorough realisation of the philosophy of pains and pleasures as applicable to human actions.
Delinquents are a peculiar race of human beings. Like idiots and lunatics, they yield to every passing temptation. Idleness, intemperance, and vicious connections are the three great causes of crime amongst the poor and ignorant. “Ignorance and indigence,” says Bentham, “are the parents of crime.” For their reformation, there are required the very opposite habits, which cannot be formed in them except by perpetual superintendence. Constraint alone will not inspire a taste for labour, but will discourage it. A model prison should be a school for learning habits which prevent offenders there imprisoned from ever being there again, and also from committing, or needing to commit, similar offences. Many offences do not spring from vicious habits, but from youth, ignorance, indigence, and sudden anger.
Houses of penitence ought to be made schools for the young and the old, and should have ample provision made