A HISTORY OF PENAL METHODS (first published in 1914, mostly written in 1907-1909)
Restitution preferred over punishment, and penalties designed to preserve peace and avoid feuds, in ancient times.
Prisons as places of detention are very ancient institutions. As soon as men had learned the way to build, in stone, as in Egypt, or with bricks, as in Mesopotamia, when kings had many-towered fortresses, and the great barons castles on the crags, there would be cells and dungeons in the citadels. But prisons as places for the reception of “ordinary” (as distinct from state or political) criminals for definite terms only evolved in England many centuries afterwards; whilst imprisonment as a punishment in itself, to be endured under rules made expressly punitive and distressful, may be described as essentially modern, and reached its worst phase in the nineteenth century.
The Teutonic Tribes of the bays and forests were fierce and free. They exemplified, in fact, the theory of Nietzsche, that liberty cannot be granted but must be taken. They had not cowered before Oriental superstitions, and as they lived in widely scattered hordes a central government could not impose its yoke upon the savage warriors. With the wild clansmen of the fierce Norse nations, where every man was always ready armed and boys received their weapons at fifteen, the great desideratum was the maintenance of peace.
The instinct of retaliation throbs in all men, and vengeance swift and bloody would be sought for, which, where the kindred ties were close and strong, might spread a feud through villages and clans, such that the very children might be born devoted to the duty of a family revenge. The Teutonic nations, like the free peoples they were, always assumed that for a crime to have been committed, an individual must have suffered injury. And they conceived the aggrieved plaintiff as no cowed weakling (or he would not have counted), but as a fighting freeman with spear and shield, who would repay a wrong with interest, and whom, if slain, his kinsmen would avenge.
Thus the placation of the injured party was the objective of the oldest laws. Allowance was made for human feelings and impulses. Some ancient codes permitted him like for like : an eye for an eye, and a tooth for a tooth, in the sense of so much, and no more. But the Teutonic laws offered him compensation, and, when it is possible, compelled him to accept it. Thus crimes were met by restitution, not by punishment. [end excerpt]
(pages 1 and 3) Notes omitted.
Concerning the conditions of gaols (jails) and punishments from the 1500s through to the 1800s
[beginning this excerpt on page 14]
The sixteenth century showed no advance in the matter of humanity. Torture, which, legally or illegally, has always been a ready trick of statesmen, developed after 1468, and under the Tudor sovereigns the rack was ever creaking to extort confessions. The “common” criminals were treated with the utmost severity; in 1530 an Act was passed by which all poisoners were to be boiled alive. Burning was the penalty appointed for heresy, high and petty treason (i.e. murder of a husband by a wife, murder of a master or mistress by a servant, and several offences against the coin), and, unlike the punishment of boiling, continued legal until 1790. The right hand might be taken off before hanging for aggravated murder, or a man might be hung in chains and left to perish. There was the drawing and quartering in some executions, and ordinary hangings were exceedingly numerous. Men lost their hands for exporting sheep and for libel, and there was branding, etc., for perjury, and sometimes for persistent vagrancy.
A picture of the prisons has been left us in a work of 1545. “I see,” observes the monk whose complaint is given, “also a pytyful abuse for presoners. O Lord God, their lodging is to bad for hoggys, and as for their meat it is evil enough for doggys, and yet, the Lord knoweth, thei have not enough thereof. Consyder, all ye that be kyngs and lordys of presons, that inasmoch as ye shut up any man from his meate, ye be bound to give him sufficyant fode for a man and not for a dogge.” He further declares that the charges were greater than any at the “dearest inn in Ingland,” and says that men lay six and seven years in prison before the oncoming of their case.
About the year 1552 the City authorities selected what had been a palace at Bridewell (given by Edward VI) for (among other purposes) locking up, employing and (as heretofore, according to Holinshed) whipping beggars, prostitutes, and night-walkers of all sorts. Later on similar detention places were also called Bridewells, after the first one at Blackfriars just alluded to. In 1597 they planned Houses of Correction, and in 1609 it was ordered that they should be builded in every county. Though they became, in practice, one with the common gaols, they lasted, at least in name, till 1865.
But to resume our survey of ordinary prisons. The seventeenth century affords the usual evidence of what walls can hide. The gaolers, as of old, appear to have been all-powerful; sometimes friendly, often the reverse, always extortionate. John Bunyan, during his twelve years’ incarceration, was allowed to work for his family—for a large part of the time in tolerable surroundings; but while in the Gate House prison he was charged huge fees. The prisoners hung collecting bags out of their windows on Sunday mornings.
George Fox, the Quaker, agreed with the keeper and his wife for meat and drink, chamber, and other accommodation at a certain rate. But he refers to one of their party being put “down in the Doomesdale amongst the felons,” and this, it appears, was a “noysome, filthy, stinking hole, where was a puddle of . . . and filth over their shoes and the ... of the felons, the straw almost broken to chaffe with their long lying thereon and full of vermin, wherein is neither chimney nor easing house.” Confirmatory evidence as to how felons fared in 1667 may be deduced out of a Statute of Charles II. “Whereas,” it says, “there is not yet any sufficient provision made for the relief and setting to work of poor and needy persons committed to the common gaol for felony and other misdemeanours, who many times perish before their trial, and the poor there living idly and unemployed become debauched and come forth instructed in the practice of thievery and lewdness,” etc.
The excellent plan was proposed that the profits of the prisoners’ labour should be placed to their relief. But we find useful labour within prison walls has always been a most difficult problem, and the world outside was always far too busy to see to it. The prisons of the eighteenth century were very much like those that had been before, but perhaps we know more about them through the great work of John Howard, The State of the Prisons. It is a matter of history how that grim, conscientious Puritan went where the ruling classes neither cared nor dared to venture. For, besides the dreadful stench which stuck to his notes and garments, deep in the windowless (window tax), airless rooms and dungeons through which he went, down in the stale, cramped yards—when there were any—without space or sun, and in which even the supply of water was mostly beyond the bounds, and so inaccessible, rising amidst the putrefaction of those places, there lurked the dreaded typhus or gaol fever, which was spread mainly by the vermin.
It had always been about since prisons were used, and sometimes proved the Nemesis of neglect. In 1522, at the assize in the castle at Cambridge, many of the knights and gentlemen attending caught the infection from the “savor of the prisoners or the filthe of the house.” Writing of the year 1577, we read in Baker’s Chronicle: “About this time, when the judges sate at the Assize in Oxford, and one Rowland Jenks, a book-seller, was questioned for speaking opprobrious words against the queen, suddenly they were surprised with a pestilent savour, whether rising from the noisome smell of the prisoners or from the damp of the ground is uncertain; but all that were present, almost every one, within forty hours died.” Much the same happened at Exeter in 1586 and at Taunton in 1730, and some hundreds perished at both these places.
Thomas Allen, in his History of London, relates that in 1750 “The Lord Mayor, some of the aldermen, two of the judges, the under sheriff, many lawyers, and a number of lookers-on, died of the gaol distemper.” The prison was afterwards cleansed! Howard asserts that in 1773-4 more people died from the gaol fever than were executed in the kingdom; we lost 2,000 sailors (criminals were often given the choice between punishment and the services) with the fleet in the war with America. He quotes Lord Bacon as saying that the most pernicious infection next to the plague is the smell of the jail. Such were the mephitic dens into which were cast men, women, and children of all sorts; and there they would rot away or survive, as the case might be, until the expiration of their (generally short) sentences of imprisonment, if they could pay the fees charged on their coming out; or until they ultimately came up for trial, after which they would either be acquitted and discharged (again when they paid the fees), or they would be convicted and transported or executed.
The number of capital offences was truly enormous. Onward from 1688 they steadily increased, owing, as has been well remarked, to the “unhappy facility afforded to legislation by Parliamentary government.” Members who could not become ministers, and who yet wanted to do something, often had interest enough to hang somebody, or at least to get a law passed creating a new capital felony.
Thus, through the ambitions of private members and the general callousness of the ruling class, the number of capital offences kept ever growing, until, in theory, there were more than two hundred of them. The law, however, had overreached; rough and often most brutal as the people of that day were, they would not enforce the penalties provided, so that the hangman’s ministrations were invoked for only twenty-five classes of offences in London, and for not more than thirty throughout England. In fact, it was found that conscientious people refused to prosecute for the lesser crimes, dreading to have a share in taking life. But actually the gallows load was heavy; an instance appeared in a Times paragraph—18th January, 1801—which tells how a certain Andrew Branning, a luckless urchin aged only thirteen, had broken into a house and carried off a spoon. Others were with him, but they ran away, and only he was captured and brought to trial. His story ended in two words, which were short and customary: Guilty—Death. Thus transportation and the extreme penalty kept clearing the prisons, but those within them were the while exploited, being entirely the prey and property of warders, keepers, and assistant gaolers, all of whom made the most of their positions—which might be given out like pensions or be purchased—to wring out fees and make their places pay; and having what amounted to unlimited power, and being, by the nature of their office, used and inured to witnessing suffering, the gaolers, from the beginning and right into the eighteenth century, shrank from no means, however mediaeval, by which they could extract their fees and charges. Thumb-screws and iron skull-caps were sometimes used, and were produced in court as evidence. [end excerpt]
(pages 14 through 20) Notes omitted.
Concerning the treatment of persons suffering from mental illness in former times
[beginning this excerpt on page 84] In the course of time, as population spread and townships grew, the old resorts were found to be inadequate. The number of the lunatics was increasing, and the whole country was filling up and enclosing. Whipping from place to place became ineffective, and there had been no public institutions available but monasteries, gaols, and hospitals. In the year 1247 was founded by Bishopsgate the Priory of St. Mary of Bethlem, and here insane people were kept and tended, at any rate from 1403. Doubtless there came to be other places thus put to use, such as, for instance, one St. Katherine’s by the Tower, where, we are told, “they used to keep the better sort of mad folks.” But it was not until about the middle of the eighteenth century that grim and sombre circumvallate buildings began to be erected to intern the troublesome. “They were,” says Dr. Conolly, “but prisons of the worst description. Small openings in the walls, unglazed, or whether glazed or not, guarded with strong iron bars, narrow corridors, dark cells, desolate courts, where no tree nor shrub nor flower nor blade of grass grew. Solitariness, or companionship so indiscriminate as to be worse than solitude; terrible attendants armed with whips . . . and free to impose manacles and chains and stripes at their own brutal will; uncleanness, semi-starvation, the garrotte, and unpunished murders—these were the characteristics of such buildings throughout Europe.” What may be called the theoretical treatment was bad enough. Those who could not be cured must be subdued; the teaching of Boerhaave and Cullen admitted this, and the latter wrote: “Fear being the passion that diminishes excitement, may therefore be opposed to the excess of it, and particularly to the angry and irascible excitement of maniacs; these being more susceptible of fear than might be expected, it appears to me to have been commonly useful.”
It was desired “to acquire some awe over them,” and he declares that “sometimes it may be necessary to acquire it even by stripes and blows.” This was the therapeutic flogging already alluded to. Shock, terror, blistering, bleeding, purging, the use of chains and all manner of manacles—these were the means employed and set down in the textbooks to heal the disordered mechanism of the brain.
In the Gentleman’s Magazine of 1765 we read of the private asylums that “persons were taken forcibly to these houses without any authority, instantly seized by a set of inhuman ruffians trained up to this barbarous profession, stripped naked, and conveyed to a dark room.” So ignorant were the doctors of those days as to the nature of insanity that the harsh cruelties practised on private patients were carried out even upon the king. Of the eighteenth-century practice Mr. Massie has written: “Mental disease was at that time a branch of art little understood, and the specific treatment of lunatics was worthy of the barbarous age of medicine. The unhappy patient” (King George III.) “upon whom this most terrible visitation of Heaven had fallen, was no longer dealt with as a human being. His body was immediately enclosed in a machine, which left it no liberty of motion. He was sometimes chained to a staple. He was frequently beaten and starved, and at least he was kept in subjection by menacing and violent language.” That, like most lunatics, he was very annoying is certain; he once talked for nineteen hours unceasing. But all his troubles were intensified by ill-treatment; they left him to be knocked about by a German servant, and the first doctors kept him even from his own children, at which the poor old man complained “very heavily.” Such, then, was the orthodox treatment applied against the highest in the land. But the worst deeds were done behind thick walls. “Sane people,” says Beach, writing of private establishments, “were frequently confined in these asylums, for persons frequently availed themselves of the facilities then in use in order to get rid of a troublesome relative or to obtain some selfish object.”
And what of the really mad ? — irritable, violent, irrational, helpless, often with as little control over the functions of the body as on the workings of the mind. We can imagine what their state became when left in the hands of ignorant practitioners and brutal attendants, with chains and instruments of restraint convenient and ready. Screened off from all kith and kin, they writhed with sores and rotted in ordure. Sometimes—mostly on Monday mornings after the Sabbath rest and accumulations— they might be carried out into a yard to be mopped and soused from pails in the coldest weather.
The condition of the living-rooms and wards was often such that visitors grew physically sick from going into them; but they were rare within those private prisons, strangers are never welcome behind the walls. At York Asylum—an especial plague spot opened in 1777, and burnt, it is said, to avoid disclosures that might hang its keepers, in 1814—a rule was adopted in 1813 “that no person shall be allowed to visit any of the patients without a special written order signed by the physitian.” Official visitors were generally harmless. At York the worst rooms were not shown them. For most of the small asylums there were none at all.
Even the larger public asylums during the eighteenth, and also far into the nineteenth century, were horrible monuments of cruelty and neglect. The miserable patients lay upon straw in cells, or upon wooden shelves to which they were fastened. Many were naked or decked over with one blanket. In the wards they were frequently chained to the wall by wrist or ankle, and occasionally by both. One patient at Bethlem, a fierce, powerful man whose name was Norris, after a fracas with a drunken keeper, had his arms and shoulders encased in a frame of iron obtained from Newgate. This instrument was attached by a twelve-inch chain to a collar round his neck, from a ring round a vertical iron bar which had been built into the wall by the head of his bed. His right leg was secured to the frame upon which he lay. The effect was that the patient could move up and down as far as the ring and short chain round the upright bar permitted, but he could not stir one foot from the wall, and could only rest lying upon his back. “In this thraldom,” says Dr. Conolly, “he had lived for twelve years. During much of this time he is reported to have been rational in his conversation. At length relief came, which he only lived about a year to enjoy. It is painful to add that this long-continued punishment had the recorded approbation of all the authorities of the hospital. Nothing can more forcibly illustrate the hardening effect of being habitual witnesses of cruelty, and the process which the heart of man undergoes when allowed to exercise irresponsible power.”
The medical men were poorly paid and proportionately neglectful. At the time of which we are speaking—the end of the eighteenth and the beginning of the nineteenth century—the physician at Bedlam got only £100 a year. However, he kept a private asylum, and sometimes left the public institution for months together. One of the surgeons is described as having been “generally insane and mostly drunk,” in spite of which he was retained there for ten years.
With such shameful neglect and callousness on the part of the doctors—there appear to have been no chaplains in those days—it is not to be wondered that the unhappy patients fell entirely into the hands of the keepers and immediate attendants, and most of these were quite ignorant people, rendered impatient and brutal by the exasperating ways of the demented inmates, and by their boundless power over them. Instinctive and retaliative floggings (performed instictively, as a relief to the keepers’ feelings), assaults, and possibly even murders, were not uncommon, as well as the distressing and unlimited restraints already referred to. One doctor invented and introduced a special instrument to prise open the patients’ mouths at compulsory feeding. He mentions that, by the usual process, teeth were apt to be broken, and some were left “without a front tooth in either jaw.”
In the eighteenth century—up to 1770—and in some places, doubtless, even to later times, the mad people were reckoned among the “sights.” The public paid to go round the asylums, as they do now to gaze upon wild beasts. The baser and more mischievous among them would irritate and purposely enrage the secured patients, as their descendants tease caged animals to this day; and thus reproduced for their ghastly diversion “exhibitions of madness which are no longer to be found, because they were not the simple product of malady, but of malady aggravated by mismanagement.”
Such conduct appears to have been general in those times. At Geneva some lunatics would be given grass and horrible things to eat to amuse visitors. This also happened at the Bicêtre, in certain parts of Germany, etc. “Les Fous de Charenton” became, for a time, notorious for their plays, which were presented with much sound and fury, attracting spectators from very grotesqueness. They were forbidden in 1811.
High walls kept things dark for years, but the light stole through in the end, as it always will. In 1793 Pinel removed the chains from patients in the Bicêtre. At home, the York Asylum, already alluded to, began to bear an evil reputation. In 1788 it incurred the Animadversions of the Rev. William Mason. In the year 1791 some friends of a female patient desired to visit her, but were not allowed, upon the plea that she was not in a suitable condition to be seen by strangers (she probably was not !). A few weeks after this she was reported dead. The woman belonged to the Society of Friends, and the suspicious circumstances of her incarceration caused much resentment among the Quakers. Soon after, William Tuke resolved that they should have a hospital of their own. The Retreat was started in the year 1792, and its humane and enlightened methods were soon contrasted with the barbarous and secret administration prevailing at the older institution. But the years rolled by while patients languished and died. It was in 1813 that Samuel Tuke—a grandson of the founder of the Retreat—brought out a little work describing the system there. It “excited universal interest, and, in fact, achieved what all the talents and public spirit of Mason and his friends had failed to accomplish.” It had still better effects. A very inoffensive passage in this book roused, it seems, the animosity of the physician to York Lunatic Asylum, and a letter which this gentleman published in one of the York newspapers became the origin of a controversy among the governors of that establishment, “which terminated in August 1814, after a struggle of nearly two years, in the complete overthrow of the old system, and the dismission of every officer of the asylum, except the physician himself.”
The conflict was taken up by others and carried on. Towards the close of that same year (1813), a case of alleged misconduct was brought forward by Mr. Godfrey Higgins, a magistrate for the West Riding. “Mr. Higgins’ statement was read” (before twenty-seven governors), “after which the accused servants of the house were called in and sworn. They denied upon oath the truth of the charges. No other evidence was called for; nor was any minute committed to writing of what had been sworn by the servants. The following resolution was passed:—The governors having taken into consideration the statements published in the York and other newspapers respecting the treatment of William Vicars, lately a patient in this asylum, . . . are unanimously of opinion that . . . he was treated with all possible care, attention, and humanity.” It was of no avail; thirteen gentlemen of the county came forward with donations, in virtue of which they qualified as governors. These new men brought their votes to bear to force on an inquiry, and though the old gang of scoundrels never got their deserts, and, to conceal their guilt, are said to have set the premises on fire, yet they were driven out of their situations, and soon investigation became national.
In 1814 Mr. George Rose brought in a Bill to regulate asylums, which passed the House of Commons. But the authorities at Bedlam Opposed the measure, spending over £600 in so doing. They had good cause, as we shall see presently. The York Asylum governors—nineteen of them, including the archbishop—sent in a petition against it; and the intrepid Mr. Higgins sent one in its favour, signed by himself. The Bill was thrown out by the House of Lords, but a committee of the House of Commons was then appointed, and collected the inconceivable and horrible evidence from which we have quoted. Its report was presented by Mr. Rose in 1815, and though the committee at Bedlam formally exonerated its officials for all things they had done and neglected to do, including even the dreadful instrument placed round Norris, the unofficial mind of the public had been roused to indignation, and many of the worst abuses were presently remedied.
Mr. Rose died in 1818, but in the following year Mr. Wynn brought forward another Bill, which was, however, opposed by Lord Eldon, who observed that “there could not be a more false humanity than over-humanity with regard to persons afflicted with insanity,” a line of argument which we shall come on again. That Bill shared the fate of its predecessor. It was not until nine years afterwards that Mr. Gordon secured the passing of an Act to improve the asylums, in the year 1828. Though abuses continued into the middle of the nineteenth century, and many Acts of Parliament were subsequently brought in, the monstrous evils of which we have spoken continued as crimes where previously they had been customs, and took place on a much diminished scale.
At Lincoln Asylum, about 1838, Dr. Gardner Hill removed mechanical restraints, and Dr. Conolly followed at Hanwell in the succeeding year. In this they were, of course, opposed in the Profession, but new ideas and new conceptions were coming, which are still working in the treatment of insanity. All along, heretofore, the Mind and the Body had been conceived as two separate things. People had ceased to believe in the interference of devils, but they spoke vaguely of “a mind diseased.” There often being no physical injury that could be detected, “the common opinion seemed to be confirmed that it” (mental disorder) “was an incomprehensible, and consequently an incurable, malady of the mind.”
A medical writer of the early nineteenth century could allude to lectures he had attended, at which the doctor had declared that treatment and physic were useless in a case of furor uterinus, because it was a disease of the mind, not of the body. No doubt there loomed the fear of Free Will and Theology. “. . . Many very able men,” says Dr. Halliday, “led away by what appeared to be the general opinion of mankind, shrank from a strict investigation of a subject that seemed to lead to a doubt of the immateriality of mind, a truth so evident to their own feelings and so expressly established by divine revelation.” It is not for us to turn aside into labyrinths, or to attempt to settle what “mind” may mean. But we know that, to our present power of comprehension, the mind can only function through the body. How it first formed, and if it can yet rekindle, are vital questions which may never be answered; at any rate they lie beyond our range.
Gradually metaphysics and moral concepts were left behind as experts examined facts. “... Derangement,” says a nineteenth-century writer, “is no longer considered a disease of the understanding, but of the centre of the nervous system, upon the unimpaired condition of which the exercise of the understanding depends. The brain is at fault and not the mind.”
“The old notion,” says Dr. Wynter, “that derangement of mind may happen without any lesion of the instrument of thought being the cause or consequence, has long been exploded.” The physical origin of insanity “became gradually accepted. Its mental phenomena were more carefully observed, and its relation was established to other mental conditions which had not hitherto been regarded as insane in the proper sense of the word. . . . Hitherto the criteria of insanity had been very rude, and the evidence was generally of a loose and popular character; but whenever it was fully recognized that insanity was a disease with which physicians who had studied the subject were peculiarly conversant, expert evidence obtained increased importance, and from that time became prominent in every case. The new medical views of insanity were thus brought into contact with the old narrow conceptions of the law courts, and a controversy arose in the field of criminal law, which, in England at least, is not yet settled.”
The instinct of retaliation was not readily restrained by reasoning or proofs of irresponsibility. In postulating freedom of choice under all physical conditions; in assuming plenary responsibility in men and women under all circumstances; in refusing to recognize any abnormal state unless it were so extreme and obvious as to render the person before the court unconscious of his actions and surroundings, the judges were defending their own position. Thus the new theories were disputed and sneered at, and arbitrary standards as to sanity were set up at variance with all facts and expert evidence.
Some contended that the more subtle and amazing forms of madness or abnormality perceived by the specialists were but new names for old perversities. Others averred that nothing physical ought to exculpate. Smollett wished that all lunatics guilty of grave offences might be subjected “to the common penalties of the law.” Upon this Mr. Tuke observes in comment that “The entire inability to distinguish between voluntary and involuntary acts, . . . between motives and consequences, is singularly well shown. Unfortunately it was not peculiar to Smollett.”
And I might add that this instinctive feeling continued—as everything instinctive generally does. Turning to the work of a writer still living (in 1908), we come upon the following: “Of late years a certain school of thinkers . . . have started some theories respecting the responsibility of many dangerous criminals and murderers, which have very properly been objected to by more practical observers.” And the writer continues with all the sweet simplicity of ignorance: “Even the inmates of lunatic asylums know well the distinction between right and wrong. And it is precisely upon this knowledge that the government and discipline of such establishments are based. Hence no theories of criminal irresponsibility should be permitted to relax the security and strictness of the detention of dangerous offenders, whether sane, or partially insane, or wholly mad. And it is important to observe that the treatment and condition even of mad murderers should not be made attractive to others outside.” But the hard scientific facts persisted. Injustice and cruelty, practised upon the weak and helpless, do not, alas ! and pace good Mrs. Stowe, bring down upon nations the visible wrath of God; but the manifest falseness of the old assumptions, and the continued failure of the mediaeval methods, could not be hidden through unending years. Slowly the light of science began to penetrate into the dark places of punishment. The entirely mad were first rescued and treated as patients, and these now, happily, no longer concern us; their case belongs to Medicine, not to Criminology. With regard to the half-mad we are in a state of slow change and transition. Their wrongs, long known to the alienists, are being brought before the law-makers. “Crime,” says the Report of Mr. Secretary Gladstone’s Committee, “its causes and treatment, has been the subject of much profound and scientific inquiry. Many of the problems it presents are practically at the present time insoluble. It may be true that some criminals are irreclaimable, just as some diseases are incurable, and in such cases it is not unreasonable to acquiesce in the theory that criminality is a disease and the result of physical imperfection. But criminal anthropology as a science is in an embryo stage. ...” With regard to the abnormal we are only on the threshold of justice; a multitude of causes, theological and instinctive, prevent the facts from being faced and known. [end excerpt]
(pages 84 through 96) Notes omitted.
CHAPTER V
THE ORIGIN OF THE CELL PRISONS
For it drives back my thoughts
Upon their spring
By a strange introversion, and perforce
I now begin to feed upon myself
Because I have nought else to feed upon.
- Dream of Gerontius.
The end of the eighteenth century opened up an eventful period in the theory and practice of all prison management. John Howard (1726-90) had been exploring the gaols and lazarettos of England and Europe; Elizabeth Fry (1780-1845) was visiting the women in Newgate; and Romilly (1757-1818) was striving to reduce the number of capital offences, of which, as we have seen, there were over two hundred. In fact, a little band of earnest men and women, zealous reformers, had at length compelled the ruling classes to look into the state of the prisons. What was revealed there, we already know. They found simply dustbins of demoralisation and pest-houses from which all kinds of evil sprang, and it was this well-intentioned, no doubt necessary, protest against the old order of things that set on foot a series of experiments on living animals — the prisoners—which, while they removed a good many of the then existing scandals and cruelties, yet inaugurated a machine for the infliction of suffering, compared with which the old barbarities were short and relatively merciful.
The old prisons were crowded, squalid, germ-laden, and filthy; the new were to be clean and sanitary. In the old buildings debauchery and open vice were coarse and rampant; amidst the damp and miasmatic darkness would be heard the oaths and obscenities of the most abandoned of both sexes, along with the jingle of their heavy fetters, which sound might be checked from time to time by the sharp slashing of the gaoler’s whip. The new prisons were collected cells; they were huge tiers of tombs, in each of which a solitary inmate lingered and often died. Deep silence reigned, but sometimes ghostly figures, ever-guarded, and wearing masks, lest they should possibly recognise one another, were hurried through the cellar-like passages, not daring to turn their heads to look around them, and scarcely to lift their eyes for a covert glance if another mask should shuffle swiftly by. As the more sanguinary and violent penalties began to shock the public conscience, imprisonment became the general punishment, and prisons passed from the detention-dens they had been into places actually for tormenting their inmates by a variety of ways and means concealed under the name of discipline. With primitive notions and little rmderstanding of the real, various, and complex nature of all the many acts that are called criminal, the reformers classed all offences as being the outcome of mere “sinfulness,” and, as a corollary to this view, they diagnosed the broad and simple remedy for crime to be “repentance” artificially produced.
Very much as the religious zealots of the dark ages strove to make heretics conform to their views by the infliction of torture, so these eighteenth- and nineteenth- century prison managers endeavoured to force the captives to reform by suffering. They attacked “Crime” as a concrete entity in the person of the offender, but left untouched those deeper and far-reaching causes from which it must inevitably have sprung.
The penitentiary system is said to have been begun in Rome. “It is the fashion,” wrote Archbishop Ullathorne, “to ascribe the origin of the solitary and the silent system to the Americans, as having developed the experiment begun by Howard at Gloucester. But allow me to quote Monsignor Cerfbear, who was sent by the French Government to examine and report on the Italian prisons in 1839. ‘I feel it to be a duty,’ he says, ‘to establish the truth. The correctional system is Christian, it is Catholic, it is no new system. It had its birth in the monasteries, and a Pope gave it its baptismal name when it came into the world.’ ” Pope Clement XI. (1700-1721) as early as 1703 erected the prison of San Michele on cellular principles, causing the following inscription to be placed over its door: “Parum est coercere improbos poena, nisi probos efficias disciplina.”
The idea was subsequently taken up in Milan, where a prison was built upon the San Michele model, and it has been claimed that the experiments which were tried in Belgium, at the Ghent Maison de Force, and spread thence over the United States, owed their initial inspiration to the prison begun at Rome. But in all probability the then untried solitary system—a phase in the prison management in many parts of the world through the last century—was the natural reaction against the indiscriminate herding together which had lately been exposed. In England, Howard had a good deal to do with its introduction; and apart from other evidence, this point is borne out by the following inscription, which was cut deep on the foundation stone of the New Baily, Manchester, one of the many prisons which were the outcome of his revelations. “That there may remain to posterity,” it ran, “a monument of the affection and gratitude of this country to that most excellent person, who hath so fully proved the wisdom and humanity of the separate and solitary confinement of offenders, this prison is inscribed with the name of ‘John Howard.’ ” Under his advice and direction the Duke of Richmond built a “separate” gaol at Horsham, Sussex, in 1776. In 1778 an Act was passed (19 Geo. III. c. 74), for the erection of Penitentiary Houses; and “solitary” prisons at Gloucester (1791), Glasgow, Southwell, and, in the course of time, at many other places, followed accordingly
The isolation movement was also active in America. The Quakers of Pennsylvania succeeded in abolishing capital punishment in 1786. At first they substituted gang labour along the public ways; the convicts were chained by fetters and iron collars, they wore a distinctive dress and had their heads shaved—the latter being a common punishment in Siberia for attempted prison-breaking. Naturally this sort of public employment was soon strongly objected to, and was given up largely through the exertions of the Society for alleviating the miseries of Public Prisons. But its efforts, as we have often seen, only set up evils far worse than were remedied; about 1790 the famous Walnut Street Prison, which had been used for the captured British prisoners of war, was utilized for criminals. Here thirty solitary cells were added, with the idea which was expressed in the Act, “that the addition of unremitted solitude to laborious employment as far as it can be effected will contribute as much to reform as to deter.” Thus the new torture was begun; but the “reformers” reached a deeper level of horror when in 1818 the legislatmre of Pennsylvania resolved to construct a penitentiary for enforcing solitary confinement without even work ! At another prison a trial of solitary confinement was made upon eighty convicts. In 1822 they were shut up for ten months each in a little cell 7 feet long by 3-1/2 feet broad, and were not allowed to leave it at any time or for any purpose.
In various States these hideous experiments were carried out, with such variations as may from time to time have dawned upon the minds of the “philanthropists” in power. In Maine the prisoners were kept alone in underground cells, which were veritable pits entered only by a ladder through a trap-door two feet square. These dungeons had a “Baronial castle” aspect, except that we read that besides the trap-door just alluded to “the only other orifice is one at the bottom, about an inch and a half in diameter, for the admission of warm air,” which has a touch of dismal science and the nineteenth century. In Virginia the same sort of system had a trial, and the cells were more “Baronial” still, for the walls would drip with water and they were quite unwarmed, so that one prisoner was found with his feet frozen. The cells were dark, and lamps had to be taken in when they were visited. But the new torture, solitary confinement, was never meant to be applied that way, and never was by the skilled tormentors. In the experiments just glanced at, the zeal of the too ardent disciples of “discipline” defeated their object. Death and insanity were so wholesale and universal that no amount of figures and “philanthropy” could explain staring facts out of the way. We shall see how the new school erected their masterpiece later on, but meanwhile we may consider what had been doing in the Old Country. . [end excerpt]
CHAPTER VI
PENITENTIARY EXPERIMENTS
“As he went through Cold Bath Fields he saw
A solitary cell,
And the devil was pleased, for it gave him a hint
For improving his prisons in hell.”
- The Devil's Walk.
As we have said, one of the consequences of Howard’s revelations had been the erection of quite a number of gaols on the cellular system in different parts of England. The reformation-by-solitude theory was then hailed on all sides as the Magna Charta of prison management. Once make prisoners think, and they will forthwith see the error of their ways. The broken-down, the cretinous, the neurotic, the unbalanced, once made to think, were somehow to solve all the terrific problems of disease and environment; repent, and so save themselves.
That the governing classes, the sound, the privileged and prosperous, should pause and reflect—that they should really consider the root-causes of crime, and seriously try and mean to make an end of them—was a remedy too revolutionary and uncomfortable to be even dreamed of throughout those selfish drunken decades of the nineteenth century! To give effect to the new theories a vast and special Penitentiary was to be built, and Millbank was duly commenced about 1812. For ages there had lain a marshy flat along the river side, which had many a time been shot over for snipe, and may have been once a field for chase and falconry; but upon which the toad-stools of the great city had begun to extend, in the shape of a pest-house and a bridewell. About 1821 there stood upon this spot on the Mill Bank a huge and gloomy many-towered prison, large enough to be clearly seen upon the Metropolitan maps in the form of a thick-spoked wheel, which fancy might have rendered into a human spider’s web to catch unwary flies, which in truth it was. This black, forbidding-looking “reformation engine” is reckoned to have possessed three miles of corridors. “Hidden amongst its hundreds of cells,” writes its learned historian, “its length of corridor and passage, beneath its acres of roof, are, without exaggeration, miles of lead piping . . . flagstones without end, shiploads of timber, millions of bricks.”
It had cost nearly half a million of money.
We can make but a very brief survey of that long record of dreary cruelties and bungling experiments which for a good many years were carried out at Millbank.
At first it was very much a plaything for Society, and often visited from the outside; the prisoners were well treated, though from the beginning the construction of the buildings aimed at solitude and separation, the full effects of which were to come out by-and-by.
But the place lost its novelty, and soon lapsed into the hands of a regular committee and the salaried officials, and thenceforward the System began to be worked out with the thoroughness which is usually exhibited to the full when one class inflicts what another class alone must feel!
As we should now expect in a cell prison, we read of a great and increasing number of attempts at suicide. Again, as might be expected, these were nearly always classed by the official mind as being “feigned” when unsuccessful; and generally as having been “accidental” whenever death ensued. At one period the dietary was suddenly lowered to some theoretical standard, no doubt fully approved of by the powers that were. But in this case it resulted in a serious epidemic (scurvy) of a some-what peculiar character, and which proved so obstinate and deadly that the entire building had to be abandoned for a while, and all the prisoners removed elsewhere.
From the quality of the human material within the Penitentiary, and still more from the nature of the experiments constantly practised upon them, especially in the direction of dark cells and separate confinement, it was only to be looked for, that much friction should follow, and barbarous repression come in consequence.
The favourite mode of punishment was the dark cell, strangely enough, a terrible one for most natures. Of this we have the graphic account in Charles Reade’s deathless tale, which however relates to a period about a generation later on; so tenaciously do prison horrors last, so hard are all secreted things to sweep away !
But the committee looked for further powers, and then obtained the right to inflict corporal punishment.
About this time the Governor was a Captain Chapman, of whom the able author of the Memorials of Millbank tells us a good deal. He is described as having been a man of courage and action, as no doubt he was. But it is really curious to notice that we find, over and over again, that his “good nature” is insisted upon, and indeed almost alleged against him: he was, we read, “amiable to a fault, etc.”
But it is often a little difficult to fathom the official view of things, and after reading the above, the lay mind may begin to wonder at the continued consignment of prisoners to the dark cells, and still more to find this too merciful man superintending the infliction of a hundred lashes from the “cat.” But the historian just quoted calls this “a highly necessary chastisement,” and appears astonished that some feeling was aroused about it in the unofficial mind outside, especially as about 1830 “soldiers, for purely military offences, were flogged within an inch of their lives.”
Some time later another prisoner was sentenced by a local magistrate to no less than three hundred lashes, of which one hundred were laid on in the presence of this soft-hearted governor and a crowd of the convicts. None of these spoke a word, though many were in tears.
What this ghastly exhibition meant will be best realised today when we remember that the greatest number of lashes it is now [in 1910] legal and possible to inflict upon a prisoner is thirty-six !
In 1837 the Rev. Daniel Nihil was given the office of governor in addition to that which he already held of chaplain. That he was hard-working is undoubted, and that in his narrow wooden way he was sincere, is very possible, but, like most prison officials, he had become well hardened to the sight of suffering. One lad of only eighteen he got sentenced to three hundred lashes with the cat, seventy-five of which were laid on, the boy expiring some years afterwards, whilst still immured in the Penitentiary.
The dreaded dark cells appear to have been in constant requisition, and it is sickening to trace the long-continued, cruel, useless struggle which was carried on with the tormented and the mad. In short, Mr. Nihil was what the great Charles Reade would have called commonplace; he was a man with no depth of understanding as to human needs, and a token of his character may be clearly made out from the fact that he opposed with all his might the subsequent appointment of a Roman Catholic chaplain who was to minister to prisoners belonging to that faith.
In 1838 the Penitentiary was furiously attacked in the House of Lords on the ground that three little girls and two young men had been kept in cellular confinement for over a year and had completely broken down.
But this apparently noble onslaught is described by Major Griffiths as a party move, since “The attack made upon the Penitentiary was really directed against the Government,” for Millbank was controlled, or should have been, by the Home Office. And there is reason to fear that this view is largely correct, for though we may make a little allowance for the common instincts of humanity which are possessed even by legislators, yet it was a brutal and callous age, in which prisoners, old or young, were of absolutely no account, and all the weak were kept within the wall.
So that the statements on both sides must be looked upon with caution; but the admitted facts are bad enough. After gaining information, Lord Melbourne (true to his creed of “Can't you let it alone ?” of course knowing nothing of it personally), proceeded to defend the institution.
The little girls, he said, were all very profligate children, and their ages had been understated—they were each at least ten years old. These hardened sinners took exercise twice a day together, although in silence; they went to school twice a week, to chapel on Sunday, and they were visited by Mrs. Fry and her associates.
Of the young men, both had been left for death at the Old Bailey, but their sentences had been commuted to one year at Millbank. They would appear to have spent most of their lives in Marylebone workhouse, to which they were ultimately sent back, none the worse, so the investigators said.
One was a lad of only seventeen, the other was of weak intellect; but it was contended that he had always been so. Such are the admitted facts, and the breeze passed over, as it would not do today. It is quite clear that those little children, who tried to crumple up their sheets into the semblance of dolls, to mitigate their heavy loneliness, and whose only consolations were the reproving lectures of official visitors, were subjected to a much longer spell of separate cell confinement than is today awarded to the adult convict as a prelude to penal servitude.
But the imprisonment of children has been by no means limited to Millbank, and it extended far beyond the “thirties.” In his interesting work, published in 1850, Mr. Hepworth Dixon cites some cases that had come under his personal notice, such as “a child of eleven then undergoing his second sentence of six months’ imprisonment,” fourth time in gaol; a boy aged fifteen “under sentence of transportation for seven years, this being his tenth time of recommitment.”
We shall have more than once to refer again to these sort of outrages upon the very young, and they form indeed one of the darkest stains upon our dreadful prison history.
But public opinion seems to have been as apathetic as it was ignorant in those evil times, and not only was Mr. Chaplain-Governor Nihil allowed to continue his work, but even to push the system to far greater lengths than heretofore.
We have seen that his main idea was to prevent communication between the solitary prisoners; and they, alone in their cells, spent weary and unprofitable hours thinking out all conceivable and inconceivable ways of gaining the eye or ear of their companions in calamity.
To find out what minds sharpened by solitude and hungry from mental starvation might have contrived, the Governor took counsel with one of the prisoners, for he easily found (as when have those in power not done ?)—some wretched creature ready to add betrayal to his other and lesser crimes.
By the help of this man’s comprehensive suggestions the discipline was made more and more solitary, until the prisoners’ minds began to break under the ordeal. No doubt certain natures had given way all along, but they had been too few to attract attention; now the mental cases rapidly increased, until even the Committee interfered. With the crass ignorance and blundering barbarity well worthy of the scientific knowledge of that age, the offenders against morality were to be left in their living graves, their numbers being too few to bring discredit on the system with the public; but for the rest of the prisoners, the “discipline” was to be somewhat easier, lest the whole place should grow tenanted with the insane.
But the supposed panacea of solitude was still widely believed in at the time. A new and “model” prison was just being built: whether separation could be long continued with sanity is, said the Committee, “a subject of much controversy, and can only be determined by actual experiment.”
And so more “philanthropists” of various grades and professions continued shutting people up, starving them in body, mind and soul, and then expecting reformation to arise out of the cell. And the world waited a generation or so with all the patience and the insight of a deluded fowl, that vainly warms and tries to hatch an artificial egg.
CHAPTER XV
THE CONVENTIONAL VIEW
To vilify and distort the image of the thing we fear or hate has been an ancient and most precious prejudice extending through all times and populations. Thus, to our forefathers in the Middle Ages, the “Devil” was represented to be black or red in colour, while among savage races “he” is just as frequently conceived as being white; in either case, sufficiently human to be popularly execrated, and sufficiently apart and monstrous to make acute appeal to the imagination. The fallacies of the ages have clung close around that great and apotheosized offender—for instance that most mischievous idea of the innate attractiveness of evil, and “his” perverse delight in its pursuit.
Built on the model of the deity of Darkness, we find the villain of the novels and plays, in which either the authors have not followed human nature’s strange and many-motived workings, or, as is much more probable, they have exaggerated for effect and contrast. Thus the conventional villain is of course utterly bad, loves sin for sweet sin’s sake with fine disinterestedness, and is consigned to utter damnation, to the intense and very natural satisfaction of the indignant audience, and the great credit of the play or story.
Next to what we may call the petty devil of the melodrama stands out the “Criminal” of popular imagination, who is largely the creation of people who generalised without knowledge and imagined without thought; and he is almost as much a scarecrow of the fancy as was that other most unpleasant individual the “Economic Man.” This quite imaginary sort of person, one who should or would go about always contriving crimes and villanies, if he were not “deterred” therefrom by the terrific penalties that were attached to them, all the grim working of which was to be kept before him by their infliction on detected people. And every crimson tragedy the Law set forth, and every consignment of its captives, though to a doom far worse than death itself, was always justified upon its day of doing, by one well-worn, all-extenuating plea: that though such sights were sad yet they were salutary, because “the criminal” was then looking on, and he would slink away and be deterred.
Doubtless, at first sight, it would appear as though he ought to be: prisons had been made hard as they could be made, our forefathers had no wish but to make them so, and had gone in for everything—the lash, thick chains, and solitude, worst of all; and they had killed, maddened and broken down bodies and minds with the weight of torments. But they had never prevented the repetition of crimes; they had not deterred; even to Port Arthur and to Norfolk Island, many prisoners were sent back after fresh convictions.
How came this? Why was the criminal moth, although maimed and singed, continually drawn back to the penal candle, often to perish miserably against the flame? Because he was drawn back by the force of circumstances; because in most of the cases his will was weak and the force was strong, and he could not help it. No one will deny that the punishments decreed, and possibly awaiting, were dreaded beyond expression, but they had (evidently) been established on crude false theories by men who did not know (or care) about human nature, and so, when dealing with living people, they did not work. And what of “The Criminal,” the real man (or woman), with all his most complex ties and tendencies; the living victim of deterrence fallacies? Why, he gambled in chances, trusted to luck, to charms, to pieces of coal, horseshoes, or even relics; through which he hoped to escape detection (and then there would, of course, be no unpleasant penalties to consider), and seldom bothered much about consequences (they were too dreadful possibilities to reflect upon; they were the anticipations of suffering, they were the thoughts to drown in a good long drink!), or all the frightful penalties the State might inflict on him; until he felt the handcuffs on his wrists, or lay awake remanded in his prison cell; then it was too late.
So much for our survey of the theoretical (and if we are right, of the actual) position. It will also be found that the importance of punishment is far more insisted upon by those who have never looked into the matter seriously (or any other: I remember hearing some blood-thirsty sentiments from a newly-married woman at a big dinner party as she sat toying with her recent rings) than by those persons who have dealt with facts.“The criminal,” says the Select Committee in its Report of 1838 (p. xxxiii), “only dreads punishment and is acted upon by it, when he sees the lash at hand and suspended over his head; and prospective punishment has no effect in deterring from the immediate gratification of his desires when exposed to temptation.”
Even the “Panic” Commission of the year 1863 stated in its Report, p. 23, that “The number of crimes committed ... is probably less affected by the system of punishment which may be in use than by various other circumstances, such as the greater or lesser welfare of the population,” and the demand for work, etc., etc.
When Major Arthur Griffiths, for many years a Governor and afterwards an Inspector of prisons, was examined before the Commission which sat in 1878-9, his verdict was that “Anything like punishment does not, as a rule, prevent their (the prisoners’) committing themselves again when they go out” (Evidence, p. 271). Asked upon what ground he based a punishment at all, he replied, “Simply to keep them out of harm’s way and to prevent them as long as possible from committing depredations upon the public.” “But,” expostulated Lord Kimberley, who was in the chair, “we must have some general principle upon which to base our system of punishment.” And so they still adhered to the old rough, ready, erroneous one, and Parliament has continued to muddle along upon its false and cruel premises.
Let us now turn to the evidence given before a very different sort of Committee, which was appointed by Mr. Asquith when he was Home Secretary in the year 1894. Major Knox, then Governor of Leeds Prison, gave his opinion, saying, “I do not think that a man who is going to commit a theft or a burglary looks to the sentence a bit.” (If this be so in the case of such deliberate crimes, how far will any sentence be kept in mind in the case of impulsive acts?) Captain H. K. Wilson (an Inspector of Prisons), also examined, was asked by Mr. Herbert Gladstone: “In fact, then, do you think any sentence is more or less useless except for the purpose of keeping him [the criminal] away from doing harm ?” To which the reply was: “You keep him away—that is all.”
Lastly, Mr. H. M. Boies, a man of many years’ experience as a prison officer in America, sums up the results of what he has seen, in the affirmation that Scientific Penology proclaims it as a law “that the fear of punishment does not restrain crime.”
This, then, is the verdict of all these representative prison officials, whose sympathies would certainly have been in favour of ascribing the best results to the huge institutions over which they presided. They had yet to admit, with Holtzendorff, that, in so far as deterrence went, the prison systems had indeed made shipwreck.
Belief in “luck” and “chance,” in fact, the gambling spirit generally, is very strong and deep in human nature. Vainly will Andrew Carnegie affirm that, according to all the teachings of experience, the gamester who counts on Fortune shall perish poor (for the Jay Goulds of the world have been men of great, if misdirected, mental power who knew their game). Thousands of fools who could not pass in ordinary mathematics will invent “systems” which shall break the bank, and all the while the tables make their vast and steady profits for the various casinos, year after year. Also, to any one who watches current events, it is clear that the multitude is largely composed of weak, uneducated, foolish people. The newspapers are filled with advertisements proclaiming “competitions,” percentages, and all sorts of bargains which every business man knows must be fraudulent or impossible. But the best bait to capture human gulls with, is to pretend to give them some unheard-of advantage and to appear to be making a sacrifice; and these wild statements must bring in clients or they would not be paid for.
The fortune tellers, living and automatic, do a brisk trade, and there are also pernicious pseudo-medical quacks who make a monstrous living out of the shame and ignorance of their victims, who fear to consult a qualified practitioner. How many scatter-brained citizens are really about, may well be sampled from the post office returns. In 1900 there were no less than 2,767 letters containing valuables posted without any address. From these undelivered epistles the authorities took £136 in notes and money, and as much a's £9,628 in other securities. And yet the State, having these thousands of haphazard people to deal with (and surely the criminals will be likely to be among the most unbalanced of all), pays them the somewhat cruel compliment of assuming in them the power of sober forethought, and of estimating more or less problematical consequences and pains. So judges and magistrates, with serious faces, mete out so many months for this offence, so many lashes for that, and so many years’ penal servitude for the other, as if offences and punishments were really commensurable, and almost as if prospective offenders might ponder the penalties or look them up like stations printed in the A.B.C.
Now in reality the Law can never excite more than a vague, fog-looming, distant terror in the average mind. The dull dark wall of prison may lie ahead—a submerged rock before the drifting, rudderless ship on its tragic course. Something sharp and ruinous, expressed in months; something long-drawn and dreadful, expressed, but yet unrealized, in terms of years, may be in store. The actual or prospective offender will seldom be able to appreciate more than that, if he thinks thus far. And neither he nor any one else can tell what sentence will be dealt out for a given offence; it will depend entirely on the judge, perhaps on how his lordship feels that day; in fact nobody knows. Somewhere near, you may say? Not at all: if sentences were blindly drawn out of a bag full of numbered tickets, there would not be much greater uncertainty, and perhaps often not much greater injustice.
The inequality of sentences has furnished innumerable columnsof adverse press-criticism—often, I fear, prompted merely by political motives—and I shall only select a few instances out of my case books, in which, for a good many years, I have been sorting and collecting evidence. About 1886 one George O., a boy of sixteen (or just seventeen), was convicted of the very serious offence of trying to obtain money by menaces, and he was sent away to penal servitude for life. I cannot conceive a crime which will be more universally condemned, but he was so very young; think of it—an infant in the eye of the Law, and a schoolboy still under his mother’s care in the sight of common sense, getting the doom which one does not like to read of as being passed upon adult and desperate criminals. There was some hostile comment at the time, but such “small” matters are soon forgotten, the fatal door had quietly closed, and there was no appeal, except for matters of money, then.
Some ten years later a similar case occurred. The prisoner was about the same age, his crime was a still bolder variety of the same offence, and had he been more moderate in his terms, the blackmailed person would, as the evidence showed, undoubtedly have paid up, and kept discreet silence, as well-placed people generally do in these sort of circumstances. But it fell out that young J. D. was prosecuted and convicted, and he got twenty—years you might anticipate, after the earlier sentence passed by that judge, who was sometimes alluded to as the “English Torquemada” —no, twenty months, on account of his youth, and the newspapers the next morning called that a tough sentence. Two other notorious trials occur to me as I write, though I can only relate these from memory. In the West of England, a good many years ago, a certain man was taken by two others to be a poacher—which he was not—and was forthwith pursued and quite illegally chased by them on the Queen’s highway. Being apparently a very nervous individual, in a great state of alarm, and having a revolver upon him, he suddenly turned and shot the two men who were overtaking him. Although this was admittedly done in his own defence under the influence of an access of terror, he yet received a twenty years’ sentence for manslaughter. A great outcry was raised at the time, and numerous petitions were signed by all sorts of people, including my father; and the sentence was afterwards altered to one of eight months’ imprisonment.
. . . Another trial was cited by the late Lord Russell of Killowen as an example in severity, which I have in a case book. A woman had been convicted before the late Mr. Justice Manisty on a charge of stealing some blankets, and was sentenced by him to no less than twenty years’ penal servitude; the judge afterwards found that he had exceeded the legal maximum, and was compelled to reduce the sentence to fourteen years, although he expressed regret at having to take that course. So far as one is in a position to determine, I believe that there were (temp. Ed. VII.) only two living judges who would have given the unfortunate woman as much as half that number of years for what she had done. So are lives and liberties tossed about in the machinery of the courts of justice.
Sentences, then, cannot be estimated beforehand, and are very often cruel and capricious in character. But this is not sufficient to explain why the hard facts of experience have all along confuted the old theories as to the possibility of deterring by punishment. For even if penalties could be made fixed and invariable for each proved offence, all circumstances being henceforth ignored, and if every schoolboy were taught to know what would be done to him for each kind of transgression, the current theory would still not stand, for it assumes the certainty of retribution. And every offender, in so far as he or she may be said to calculate at all, counts on not being caught. This fact it is which really nullifies the force and truth of the deterrence theory. If states could achieve the certainty of conviction, and could ensure the restitution of stolen property, I believe that all the crimes which can be deterred by anything (i.e. the deliberate, as distinct from the passionate) would be quite met by, say six months’ imprisonment, and most likely by some lesser penalty.
But as this certainty of conviction is absolutely impossible to arrive at, we shall not deter by terrible threats and occasional victim-making; and crime remains what it always was, “a statistical average; a little less at times, a little more at others,” as Hopwood said, depending upon all sorts of complicated causes, and disregarding the penal system almost as completely as accidents ignore the state of hospital accommodation.
The average offender always thinks he will escape, not as a result of any hard or laborious reasoning, but principally because he hopes he will, and because he has a sort of general idea—if he is an habitual criminal, a very practical and soothing experience—that a great number of people do remain uncaught and at liberty. For while he may know that the ill-starred Brown is going through a long and dreary sentence, away out of sight and, consequently, largely out of mind, he may take comfort in the fact that Jones and Robinson, and any number he may think besides, did the same things and yet continue to be very much at large. And when we come to look into the question, we shall find that the criminal has much more solid reason for the hope which is in him than most of us would readily suppose.
Murder, at any rate, is popularly imagined to be nearly always followed by most certain retribution. But looking at the last available Report of the Metropolitan Police, we shall find that in the year 1900 there were sixteen discovered murders in London. For these only eight persons were actually convicted, although it is only reasonable to add, that five assailants executed themselves, doubtless from fear and horror at what they had done and what was in store for them. But in the other cases (and in how many more that were never heard of) no one was caught; and figures for other years give somewhat similar results.
Much more pronounced are the statistics with regard to housebreaking, for which in London the returns gave 1,416 cases and only 117 convictions, so that the ratio of crime to conviction stood about 12 to 1. I do not say that the conviction-rate is as low as that for the majority of offences; but adding together the principal detected crimes (and these alone do we know about) for that average year in London, we get 18,088 cases and 9,429 convictions. The proportion of prosecutions to known crimes in England was given at 77 per cent., ranging from below 50 to over 100.
But figures are frequently made to prove or disprove almost anything, and do not always count for much till we know the bearings; in this instance, we may accept the words of the official report that they do not afford any index to the number of unpunished crimes, or to the efficiency of the police action. The late Mr. Whiteway, in his excellent work, held that from one-half to two-thirds of our criminals evade punishment, while from judicial statistics made in the seventies, Mr. Farrer placed the immunity for indictable offences at no less than 77 pet cent.
Much the same state of things will prevail in other civilised countries where social and economic conditions approximate to our own. “In the United States,” says Dr. Hall, “comparatively few men are executed or imprisoned for the many murders committed, but the average citizen, not called upon to investigate closely, does not realize this. ...” “The total number of convictions during 1899,” says Mr. Boies, “was only I out of every 33.1 of the total arrests”; and again: scarcely 1 in 3 even of those arrested for serious crimes is convicted. We must bear in mind that all these figures relate to crimes which have been discovered. Many others, and an incalculable number of illegal acts, are never recorded, and find no column in the criminal tables of any country.
Offences such as infanticide (and this I fear will very likely increase somewhat since incest was made a punishable offence by an Act passed in 1908: the true remedy for this particular evil would have been to improve the housing accommodation, but to make a new crime was much cheaper, much easier), illegal operations, and frauds upon insurance companies, etc., are no doubt committed with no small impunity; and as to offences against current morality, in which there has been collusion and consent, the law becomes a veritable booby-trap merely to catch the foolish or unfortunate. It seems evident, then, that punishment, although not actually a negligible quantity as a deterrent to deliberate crimes, has yet been greatly overrated in value. I shall endeavour to prove that it is not by any means the thought-out product of modern science, but is in reality a survival from savagery. ...