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and I trust that an improvement in the statistics of crimes of violence will lessen the reason for its consideration.
But while we all rejoice in the diminution of human pain, we are bound not to forget that lenity in punishment, in view of the repression of crime, has its limits. Law and the moral sentiment of the community act and re-act upon each other. The lenity must not degenerate into a laxity which shall either blind the sense of the community to the danger as well as to the wickedness of the crime, or, on the other hand, in cases of grave outrage, tempt men to vindicate by illegal acts the claims of the moral law and the right of society to adequate protection against the evil-doer. Punishment must not be dwarfed until it ceases to have a deterrent effect upon the evil-doer himself. And it must ever be remembered, in respect of habitual offenders, that, whilst they are at large, they are frequently centres of corruption, dealing moral death around amongst the young and innocent, whose last struggles of virtuous resistance they may triumphantly overcome by pointing to the triviality of the punishment which awaits the detection of the crime. Lenity such as this is not merely mercy misapplied, but downright cruelty. There is, I think, a profound truth in a recorded saying of the great Duke of Wellington: “They may talk of punishment as cruel, but there is nothing so inhuman as impunity.”
in regard to the habitual criminal, experience and study lead me to think that we ought to persevere in seeking a more satisfactory solution of the difficult problem which he presents. For my part, as long as he lives, I must refuse to regard him as absolutely beyond hope of reformation. Often his offences, taken separately, are petty. But he persists in the commission of them, and one has little room for doubt that his periods of freedom are used, not only in the repetition of his wrong-doing, but in spreading abroad by example and precept, and possibly even by intimidation, the deadly contagion of sin. Mr. Tallack, the Secretary of the Howard
Society, advocates, I see, * for such offenders, a systematic and cumulative system of detention in special establishments; and the suggestion appears to me well worthy of consideration. Certainly the matter must be handled somehow. Out of 149,942 offenders who went to prison in England (over 52 per cent., be it observed, for default of payment of fines), no less than 85,890 had been convicted before, and 35,199 had been convicted more than five times.
A few words only, in conclusion, as to the application in punishment of the principle of the reformation of the offender. As to this, it is to be borne in mind that we have available practically only one sort of punishment, viz. imprisonment. The extent to which it can be made effectual for reformatory purposes is still matter of experiment. One is met at the threshold of the search into methods by difficulty of harmonizing, in practical application, the principles of the association and the segregation of prisoners. “The evils of both are manifest—the mutual contamination of the one, and the mental strain of the other. There are advantages also belonging to each mode of treatment. A careful association may have a humanizing influence, and segregation gives opportunities for the exercise of individual kindness and advice." + Promiscuous and unwatched association should not be permitted anywhere. The terrible evils of it—especially its cruelty to the less evil-minded prisoners, are too obvious to need words. Howard, the great reformer, characterized gaol gangs and congregate prisons as “filled with every corruption which poverty and wickedness can generate between them.” When association is permitted, it ought to be subject to careful supervision. It is not, however, within the scope of this paper to discuss minutely matters of prison rule. I will only say further in regard to it, that, whatever scheme is pursued
* Penological and Preventive Principles. London, 1896, pp. 184, 599.
† "The Prisons Bill,” by the Right Hon. Lord Norton. The Law Magazine and Review, Aug. 1898.
for reformatory purposes inside the prison (I am not speaking of reformatories for the very young offenders), it should conform to the idea that the residence of the prisoner there is primarily for the purpose of punishment. The prison ought, in popular esteem, to be regarded as something quite different from a place of comfortable detention under strict discipline or a compulsory hospital for moral cripples. The maintenance of the true idea of imprisonment is essential alike, in my humble judgment, to the moral regeneration of the criminal himself, and to the deterrent effect of imprisonment both upon him and upon others. So long as it is not sacrificed, the process pursued within the prison doubtless ought to be one which is as conducive as possible to the health of the prisoner, both in mind and body, and to his permanent amelioration.
In England we have already given considerable effect to the reformatory principle in dealing with persons convicted of crime. We are setting apart special prisons for juvenile offenders. Very young offenders may be sent to a reformatory instead of a prison immediately after sentence. I am glad to be able to say, in passing, in regard to this class, that in England we are free from those symptoms of an increase in juvenile crimes, which, as I have read, are causing anxiety in at least one continental country. First offenders may be, and frequently are, liberated conditionally, that is to say, on their entering into recognizances, with or without sureties, to appear and receive judgment when called upon, and in the mean time to keep the peace and be of good behaviour. In the prisons we have provided, to some extent, for the classification of prisoners, for differential and progressive treatment, and for conditional release before the expiration of the full term imposed by the sentence. We have recently increased the facilities for intercourse with persons who may encourage and help the prisoners to reform. Here, in some, at least, of the States, you have, I well know, made very interesting
experiments in the State punishment of crime in connection with the institution of 'parole' and 'probation'-extensions of methods of treatment which have some recognition in the English system-and the ‘indeterminate' sentence, which is wholly novel. I hope to have a further opportunity of seeing for myself the methods which you have initiated. At present I will only say that I feel some misgivings as to the plan of the indeterminate sentence, especially on account of its apparent conflict with that which is generally held to be a very important principle in punishment, viz. its certainty; and that, even if just and useful in other cases, it appears to me to be a plan, according to my present understanding of it, which could not properly be applied to criminals who have been guilty of serious crimes of violence or of outrage on women and children. It strikes me as not being either right in itself or safe for the community that malefactors of this sort should, by an exhibition of goodness in prison, which notoriously is often the part played by the worst prisoner, be able to regain their liberty, even upon probation, after a very short term of imprisonment. At the same time, I admit that there is great weight in the view that the hope of the success of such methods of mental and physical treatment as are pursued at Elmira is bound up with the presence in the system of some such stimulus to effort and self-improvement as the 'indeterminate sentence' is intended to supply. And I will add that, during my visit, on my way hither, to the Concord Reformatory, which receives many prisoners whom we should not class as juvenile, I was greatly impressed, not only by the excellence of the arrangements for the moral, mental, and physical training of the prisoners, but by the alertness, the intelligence, and the willing obedience which that training appeared to be producing in the majority of them.
I must not now trespass longer upon your attention. I regret that the occasion authorized me to deal with a great
subject only in an imperfect way. I dare not hope that I have told you anything new.
But it has been to me a great pleasure to have had the opportunity of addressing such an audience on such a theme. For I am persuaded that all here are conscious that, as it is righteousness that exalts a nation, so it is confidence in the administration of justice which more than aught else binds a nation together. In a free and civilized country, where life and property and woman's honour are guarded by just laws, humanely but firmly administered, without respect of person or creed or party, there is little cause to fear for the continuance of popular contentment and the stability of order. We, as lawyers, are, in our generation and country, the stewards of a great national interest. And let it be our prayer that, to whatever region of the earth God-given responsibilities send the children of our mighty race, whether under the Flag of England or under the Stars and Stripes, they may plant there, on a sure foundation, with our Christianity and with our love of freedom, the pillar of strong and impartial justice, as becomes the faithful servants of Him who is the infinitely just Judge.
(Continued from p. 395.)
N my article on County Courts, published in the August
number of this journal, after summarizing the history of County Court legislation and the necessity for reducing the official fees charged to suitors, I discussed the proposals of the Associated Chambers of Commerce to increase the exclusive jurisdiction of the Courts to £1000, and the distinction between such proposals and those of the Incorporated Law Society, which limited the exclusive jurisdiction