^ ^M ^IM: 1 ^^^2^1 '^fl^Sfl ^ 11^ ; • t ua Ite . i ^11 ! ' fl k ■ 1 ■ ' (5orn?ll ICam ^rl|O0l ICxbtarg CORNELL UNIVERSITY LIBRARY Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924069587321 LIBRARY OF ECONOMICS AND POLITICS. EDITED BY RICHARD T. ELY, Ph.D., LL.D. Number Six. LIBRARY OF ECONOMICS AND POLITICS. Independent Treasnry System of the United States. By David Kihlby, A.B. izmo $^'S° Repudiation of State Debts in the United States. By William A. Scott, Ph.D, i2mo i*So Sooialism and Social Keform. By Richard T. Ely, Ph.D., LL.D. izmo 1.50 American Charitiee. By Amos G. Wahwbr, Ph.D., Professor of Economics in the Ijeland Stanford, Jr. , University, izmo i .75 HnlWHouae Maps and Papers. A Presentation of Nationalities and Wages in a Congested District of Chicago. With maps. 8vo.. 2.50 Spedal Edition, with maps mounted on Linen. 8vo 3.50 Funftshment and Beformation. By F. H. WiMBS, LL.D. izmo 1.75 Social Theory. A Grouping of Social Facts and Principles. By John Bascom, Professor of Political Economy in Williams College, xzmo.. 1.75 Proportional Representation. By John R. Commons, Professor of Sociology in Syracuse University, izmo 1-75 State Railroad Control. By Frank H. Dixon, Ph.D. izmo 1.75 Southern Side Ligrhts. By Edward Ingle, A.B. xzmo. Cloth 1.75 Taxation and Taxes in the United States nnder the Aitemfd Revenue System. By Frbdbric C Howe, A.M., Ph.D. izmo x.75 An EssBy on the Present Distribution of Wealth in ^e United States. By Charles B, Spahr, Ph.D. izmo x.50 Southern Statesmen of the Old R6|ri>ne* By William P. Trent, A.M. izmo. Gilt top, with portraits.. z.oo Worhingnaen's Insurance. By W. F. WiLLOUGHBT, Department of Labor, Washington, D. C. izmo t.75 Congressional Committees. By Lauros G. McConachie, A.M. izmo 1.75 Municipal monopolies. Edited by Professor £. W. Bemis. izmo z.oo The Jev in r.ondon. By C. Russell and H. S. Lewis. With an introduction by Canon Barnett, and a preface by the Right Hon. Jambs Bryce, M.P. izmo, with colored map 1.50 Monopolies Past and Present. By Jambs Edward Le Rossignol, Ph.D., Professor of Economics in the University of Denver, izmo. Cloth 1.25 The French Revolution and Modern French Socialism. By Jessica B. Pbixotto, Ph.D. izmo 1.50 The Eiconomlcs of Forestry. By Prof. B. E. Fbrnow, Department of Forestry, Cornell University net 1.50 Irrigation. By F. H. Newell, U. S. Geological Survey net 3.00 PUNISHMENT and REFORMATION ^n l^tstortcal Sfeetrii RISE OF THE PENITENTIARY SYSTEM BY FREDERICK HOWARD WINES, LL.D. Special Agent of the Eleventh United States Census on Crime, Pauperism, and Benevolence ; formerly Secretary to THE State Commissioners of Public Charities FOR the State of Illinois, etc. As freedom advances, ike severity of the penal law decreases Montesquieu NEW YORK THOMAS Y. CROWE LL & COMPANY PUBLISHERS CorvwGHT, 1895, By Thomas Y. Cxowsli. & Co. FIfTH EDITION, 24 \920 ^^\:<^ TO t||jB^ MjKytfRY Jl " <•• il2 jFattjer. The history of punishment is perhaps the most curious part of the criminal law. Sik James Stephen. There can be no more striking mark of the advance of European civilization than the transition from the dungeons and fetters of the Middle Ages to the penitentiaries of modem times. Sik William Crawpord. The school of criminal jurists to which I belong has not deserted received opinions on light grounds, nor sought for new principles until the failure of the old ones for the production of good practical results had been demonstrated by centuries of experiment, varied until the wit of man had exhausted all the possibilities of permutation. Matthew Davenport Hill. Conquer your foe by force, and you increase his enmity. Conquer by love, and you will reap no after-sorrow. Prom the Fo-sho-hing-tsan-King. PREFACE. This book must be taken for what it is, not for -what it does not claim to be. It does not pretend to be either original or exhaustive. The author was requested to deliver a course of lectures, in 1893, before the students of the State University of Wisconsin, which were given extempora- neously; but afterward written, to be read, in January, 1895, before the Lowell Institute in Boston. They have been rewritten for publication, in the hope that they may prove not only instructive but inter- esting. A great frivolous interest in crime is dem-, onstrated by the attention paid to it in the daily journals ; why not hope that a serious interest may also be taken in suggestions for its suppression ? This is not a book on prisons, much less on the organization and government of prisons. It is rather designed to be an aid to legislation and to the formation of a correct public opinion, which must in the end con- trol legislation. Its aim is to give to the ordinary reader a clear and connected view of the change in the attitude of the law toward crime and criminals, during the century now drawing to its close, and of the honorable part which the United States has borne in the movement for a better recognition of the rights viii PBEFACM. even of convicted criminals. Looking to the future, the watchword should be : nulla vestigia retrorsum. The authority for each statement in the text is not given in foot-notes, because of the great number of citations that would be necessary, and the consequent fatigue to the reader. The principal authorities con- sulted are : — "A History of the Criminal Law of En- gland," by Sir James Stephen ; " History of Crime in England," by Owen Pike ; " Chronicles of Newgate," by Arthur Griffiths ; " The State of Prisons in England and Wales," by John Howard ; " The Punishment and Prevention of Crime," by Col. Sir Edmund E. DuCane ; " Crime and its Causes," by William Douglas Morrison ; " The Criminal," by Havelock Ellis ; " Strafensystem und Gefangnisswesen in England," von Dr. P. E. As- chrott ; " Lesebuch der Gefangnisskunde und Bertick- sichtigung der Kriminalstatistik und Kriminalpolitik," von K. Krohne; "Handbuch des Gefangnisswesens," (by various authors, but edited by Dr. Eranz von Hol- tzendorff and Dr. Eugen von Jagemann) ; " Esprit des Lois," par Montesquieu ; " Beccaria et le droit p^nal," par M. Cesar Cantu ; " Memoire sur les moyens de corriger les malfaiteurs et les faineants," par Ch. Hip- polyte Vilain XIIH ; " Histoire de la legislation," par M. le Comte de Pastoret ; " Dictionnaire de la penalite dans toutes les parties du monde conrni," par M. B. Saint-Edme; "Les prisons de I'Europe," par MM. Alboize et A. Maquet ; « Code des prisons," par M. Mo- reau-Christophe ; "Du droit de punir," par ]&mile de Girardin ; " Question des peines," par E. H. Michaux ; " Sul govemo e sulla riforma delle carceri in Italia," di Martino Beltrani-Scalia ; and many more. It is im- PREFACE. ix possible to mention by name the books, reports, docu- ments, pamphlets, and journals which the author has read or examined, during the quarter of a century in which this subject has claimed more or less of his atten- tion. Much of his acquaintance with it is derived, not from books, but from personal contact with prisons and prisoners. The books here named are histories or con- tain historical material ; books on the theory of pun- ishment have been omitted, also books by American authors. TABLE OF CONTENTS. CHAPTEB PAGE I. The Question Stated 1 II. What is Crime? 11 ni. KKTKIBrTION FOB CrIMB 25 IV. Early Judiciai. Pkocedtjbe 42 V. Intimidation and Torture 48 VI. Dawn of the Keaction 103 VII. The Reformation op the Criminai, .... 120 VIII. The Pennsylvania and Auburn Systems . . 132 IX. Transportation and the Penitentiary System 162 X. The Elmiba System 192 XI. Criminal Anthropology 229 XII. The Causes of Crime 266 XIII. The Theory of Punishment 281 XIV. The Prevention of Cbime 292 XV. The Outlook 309 Index 323 PUNISHMENT and REFORMATION. CHAPTER I. THE QUESTION STATED. Of all the perplexing questions which confront the statesman and the publicist, probably the most difficult of solution is that which relates to the proper treatment of crime and criminals. This is true, whether the ques- tion is approached from its theoretical or its practical side. An enlightened criminal jurisprudence must rest upon principles which command the sanction of science and the approval of absolute justice ; but these principles are not easy to find or to formulate. In practice it must satisfy certain obvious experimental tests. Does it in- sure the public peace and security, by reducing the volume of crime and the number of known, habitual offenders ? Does it accomplish this result with due regard to the rights and interests of convicted criminals, as well as of the community which it seeks to protect ? In other words, does it attain the maximum of ef&ciency without degenerating into oppression, and with the least possible infliction of pain or loss ? For a correct reply to these inquiries, patient historical research and exact statistical knowledge are essential, I 2 PUNISHMENT AND BEFOBUATION. Criminal law has been slowly and painfully evolved from human consciousness, in response to the varying histor- ical exigencies of the race. The time has arrived when it must be judged by a higher criticism, which needs to be not merely retrospective and philosophical, but ethical and practical. Through what evolutionary stages has criminal jurisprudence already passed ? What are its present tendencies ? Are these tendencies such as to commend themselves to the ethical, political, and legal sense of mankind, in an advanced state of Christian civ- ilization ? The law is itself upon trial. A mass of evi- dence has been here accumulated, which must have an influence upon the verdict to be rendered by those who do the present volume the compliment to read it. Our subject may be defined as the treatment of crime, for its repression and prevention ; and of criminals, for their extirpation or rehabilitation ; both in the past and in the present, with special reference to improved methods of treatment in the future. To this science, if it is a science, Francis Lieber has given the name of " penology," often confounded by type-setters in print- ing-offtces with phrenology, to which it bears no relation.1 The term is an awkward one, as most technical terms are apt to be. Prison discipline, which the word is meant tc| include, is an art, rather than a science ; but the termi- nation of the word does not suggest any practical appli- cation of science. The Germans call this branch of human knowledge, from the scientific point of view, Gefangnisswesen ; from that of art, Gefangnisskunde. I* ^French, it is la science penitentiaire ; the mercurial Grauls have borrowed a phrase from the sedate Quakers of th« commonwealth of William Penn. THE QUESTION STATED. 3 Call it wliat we may, the theme which now engages our attention is remote from the ordinary experience, and to many it is repulsive. Eightly regarded, however, it is as interesting as it is important. If any apology is required for its presentation, it may be found in the fol- lowing quotation from Victor Hugo : — "The study of social infirmities and deformities, with a view to their cure, is a sacred duty. The mission of the historian of ideas and of morals is not less obligatory than that of the chron- icler of events. The latter skims the surface of civilization. He registers royal marriages, the birth of princes, quarrels between kings, battles, convocations, the achievements of men illustrious for their public services, political revolutions. He describes the external aspect of events. But it is a deeper and more arduous task to penetrate beneath the surface ; to lay bare the foimdatlons on which the social structure has been reared ; to tell of those who labor, who sulfer, and who wait, — of womanhood staggering under burdens too heavy to be borne ; of childhood in its young agony ; of the silent secret conflicts which alienate men from their kind ; of the obscure ferocities, the prejudices, the intrenched injustice, the subterranean reactions of law ; of the hidden evolu- tion of souls; of the formless shuddering of the masses of the starved, the half-clad, the disinherited, the fatherless, the unfor- tunate, and the infamous ; of all the hobgoblins that wander in the dark. He who would lay bare the mysterious springs of human actions must descend — with a heart full at once of charity and of severity, as a brother and as a judge — into those impenetrable casemates where crawl in confusion those who bleed and those who strike, those who weep and those who curse, those who fast and those who devour, the wronged and their oppressors. Have these historians of the heart duties inferior to those which are laid upon the historians of the world's exterior life ? Has Dante less to say than Machiavelli ? Is the vmder-world of civilization, because it is deeper and more gloomy, less real and important than the upper ? Can we know the mountain, if we know nothing of the caverns ?" 4 PUNISHMENT AND REFORMATION. The limits of penology are incapable of exact defini- tion. It embraces portions of criminal jurisprudence. It covers everything which relates to prisons and prison discipline. It includes certain aspects of the work of the police, and of the institutional and other agencies by which preventive work is carried on in behalf of chil- dren and youth. It has points of contact with nearly every science and art which it is possible to name. It is related to medicine, through the connection which sub- sists between crime and insanity, and the necessity for a sound prison hygiene. The problem of criminal heredity creates a close affiliation between penology and biology. It is an essential and important branch of law, but it is no less intimately connected with government in the wide sense, or with politics regarded from the point of view of the statesman. It enters into the domain of philosophy and of religion. It has its ethical side. Prison discipline is, as we shall see, largely a question of pedagogics. The causes of crime require for their elucidation an adequate knowledge of political economy and of general sociological conditions. To demon- strate their operation the aid of statistics must be in- voked; an art of extreme nicety and precision. The comparative study of crime implies familiarity with geog- raphy, anthropology, and history. The practical admin- istration of prisons demands some acquaintance with architecture and engineering, with agriculture, with me- chanics and manufactures, with trade and finance, and a deep insight into human nature, joined to experience in the government, of men and natural aptitude for it. A competent warden needs to be thoroughly grounded in psychology. In short, all knowledge which has man foi THE QUESTIOJfT STATED. 5 its subject or object, and especially all philosopbical in- quiries wbicli aim to explain human activity, individual or social, in its origin or in its outcome, lead up to the prison question. It is one of many doors through which one may enter the palace of Minerva. There is no social question at once so profound and so far-reaching, unless it be the labor question, with which the prison question is closely and vitally united. There are two principal methods by which it may be studied — the philosophical and the historical. These are, however, so blended in practice as to be almost indistinguishable, except when the scalpel of the techni- cal analyst divides them from each other upon the dis- secting table in the chamber of speculative science, which is the chamber of death. The ideas and conduct of men are in life so inextricably interwoven, that the historic aild the philosophic or logical order, in their parallel evolution, during the slow progress of the race from barbarism to civilization, are substantially the same. History needs to be read in the light of philos- ophy, and philosophy in the light of history, if we would form a distinct mental image of either — an image which will correspond to the real, and afford a clew to the ideal. The author of this little book will have succeeded in his aim, if on every page he succeeds in attaching to a historical fact, which is a picture, an explanatory legend in the form of a philosophical con- clusion, and if he can induce the reader to turn from one to the other and back again in quick succession. A brief outline of the scope and order of the topics included in the plan of the present volume will be an aid to the comprehension of the argument. 6 PUNISHMENT AND BEFOBMATION. Two principal questions demand our attention : What is crime ? and, What is the criminal ? The notion of crime is not a fixed, but a variable, notion, growing out of local and temporary conditions, subject to perpetual modification in accordance with the political and reli- gious conceptions peculiar to a given community in a given age. The criminal is the concrete expression of the abstract idea of crime. In his relations to the past, he is a product of antecedent causes, partly individual and partly social. In his relations to the present, he is an anti-social and disturbing element, a protest against existing social conditions and regulations, a menace to the public peace and safety, and in a greater or less degree a public enemy. In his relations to the future, he is a problem ; whether soluble or insoluble, the future alone can determine. These questions are separable only in thought. Since crime exists and can exist only in the criminal, the treatment of crime and that of the criminal are merely two phases of one and the same problem. Logically, however, the mind deals first with the question of the suppression of crime, then with the fate of the crimi- nal, and his conversion or extirpation. This is also the historical order. It is only of late that the fate of the criminal himself has attracted public notice and interest. There have been four distinct stages in the evolution of criminal law.' The first was the era of vengeance, or retribution; the second, that of repression; the third, that of attempted reformation and rehabilitation ; the fourth, of which we see as yet but the early dawn, is that of prevention. We shall see, as we proceed, how TBE QUESTION STATED. 7 these must have followed each other in the precise order here indicated. It is of absorbing interest to trace the successive steps by which each of these conceptions of the function of criminal legislation has faded into that which immedi- ately replaced it. The lex talionis was the original and barbarous foundation of the penal code. Eetaliation, at first a private right, became, in the lapse of time, a pub- lic duty. The penalty of death, once the usual and all but universal form of vengeance, could be avoided by pecuniary compensation ; and when the primitive State took into its own hands the regulation of such composi- tion, the foundation of a true criminal jurisprudence was laid. The State and the Church then took upon them- selves the task of suppressing crime by measures of severity, designed to intimidate would-be criminals by the terrors of torture, in all its hideous forms. This conception held humanity in its unrelenting grasp, not for centuries, but for thousands of years. Judicial and ecclesiastical murders were for ages regarded as the essential safeguard of social order and private security. Banishment was invented as a humane substitute for capital punishment. Prisons were merely places in which the accused awaited trial, or the condemned awaited execution. Beccaria gave the final blow which resulted in the overthrow of torture, and his influence is largely responsible for the gradual disuse and partial abolition of the death penalty. John Howard pointed out how imprisonment might itself be made a legal penalty, and at the same time a means of reformation of law-breakers. These two re- formers were contemporaries. The entire movement for 8 PUNISHMENT AND REFORMATION. the amendment of the criminal law, and for the reform of prisons, is vitally connected with the growth of democratic ideas and institutions. It may almost be said to date from the American and the French Kevolu- tions. It was greatly, and on the whole favorably, influenced by the discovery of Australia, and by the English experiments tried on that distant soil, under the system of transportation, which lasted for eighty years, before its failure was formally acknowledged. With the general acceptance throughout Christendom of imprisonment as practically the only secondary punishment, the criminal has become an object of at- tentive scientific study. The attempt to reform him has led to the invention of three systems of prison discipline; the Pennsylvania, the Auburn, and the Elmira. Penologists are divided into three camps, as they favor one or the other of these systems. The in- complete success of either has led many to doubt the efftciency of all methods which may be adopted for the renovation of the criminal character and impulses. Their persistence has led to new studies of the criminal, in his heredity and in his biological development, which have taken the name of criminology or criminal anthro- pology. But all are agreed that the principal hope of any material reduction in the volume of crime lies in its prevention, rather than in its cure. Society now seeks a better knowledge and more effectual enforcement of the laws of moral hygiene. This record of slow but certain progress is the history of a movement in which the history of the human race is hidden at the core. It is the history of the steps by which the bonds of submission to external authority, THE QUESTION STATED. 9 indispensable in the infancy of the race, but always liable to become arbitrary and despotic, have gradually been relaxed, as mankind has learned the lesson of self- control. It is a history which contains and is the em- bodiment of a prophecy. But the current of events has not iiowed steadily onward without interruption. It has been a raging stream, dashing against rocky bar- riers, which have thrown it back upon itself; it has been filled with eddies and counter-currents. In the conflict with crime, society may be compared to a blind giant, dealing furious blows at an unseen but ever- present and irritating foe, sometimes hitting the mark, but, alas, too often missing it. One central, dominating idea has characterized the entire movement, namely, that the world can only be rid of crime by ridding itself of the criminal ; whether by killing him, sending him into exile, shutting him up in prison, intimidating and disabling him, or reform- ing him. The surest of all plans would be to stop the manufacture of criminals. This is the latest develop- ment of the war against crime. The modem police system is of more recent date than prison reform. Police surveillance of discharged convicts has been fol- lowed by suspension of sentence and surveillance with- out commitment to prison. Our institutions for the reformation of juvenile transgressors are an addition to the prison system, intended in large measure to supersede it. The principles and methods on which they are conducted have just begun to affect sensibly the organization and discipline of prisons for adults; they have given birth to the new reformatories for adult first offenders. They are largely supplemented by 10 PUNISHMENT AND BEFORMATION. purely preventive institutions for young children of both sexes, who are thus rescued from an environment favorable to the growth of criminal character. Still more recently, the best authorities on child- saving tend to dispense, as far as possible, with all institution life for children, and to place them directly in private families, where they will receive the benefit of a home, and their surroundings will be more nearly assimilated to those of other children. If the centuries before Christ and the first eighteen centuries of the Christian era furnish the dark back- ground, against which the beauty that resides in the salvation of the lost and the rescue of the perishing stands more sharply revealed, on the other hand it may be said that the benevolent work of the nineteenth century, throughout the world, is the outward and visible reaction against the barbarity and brutality which, before this century opened, everywhere charac- terized the administration of the criminal law. The flower of Christian charity has sprung up and blossomed from roots which struck deep into what seemed to be the most unpromising of soils, but which has been en- riched by the blood of numberless victims, and watered by the tears of the pitiful. WHAT IS CRIME? 11 CHAPTER II. WHAT IS CRIME? Crime needs to be sharply discriminated from vice on the one hand, and from sin on the other. Vices are injuries done to oneself, through the violation of nat- ural law, which affect others only indirectly, if at all. Intemperance is a vice ; so is sloth, so is improvidence. Sins are offences against God, whose commandments extend beyond outward acts and reach down into the region of unuttered thoughts and unfulfilled desires, of which human legislation can rightfully take no cogni- zance. Crimes are wrongful actions, violations of the rights of other men, injuries done to individuals or to society, against which there is a legal prohibition en- forced by some appropriate legal penalty. The distinction just made is real, but these categories of wrong-doing are not necessarily mutually exclusive. There are vices and crimes which are also sins. And any vice or sin becomes a crime when it is declared to be punishable by human law. Again, actions or omissions contrary to equity, for which the legal remedies are merely civil, and consist in restitution, with or without damages, must be discrimi- nated from actions or omissions in which the disregard shown for the rights of others is so palpably immoral and anti-social as to call for the infliction of some degree of criminal punishment, either by deprivation of life, 12 PXmiSHMENT AMD REFOS.MATION. liberty, or property. Only the latter fall within the strict definition of crimes in the technical phraseology of the law ; the former are torts. Sir James Stephen says : — " The criminal law Is that part of the law which relates to the definition and punishment of acts or omissions which are pun- ished as heing — (1) Attacks upon public order, internal or external ; or (2) Abuses and obstructions of public authority ; or (3) Acts injurious to the public in general ; or (4) Attacks upon the persons of individuals, or upon rights annexed to their persons ; or (5) Attacks upon the property of individuals, or upon rights connected with and similar to rights of property." To this succinct description of the criminal law he adds: — "The conditions of criminality consist partly of positive con- ditions, some of which enter more or less into the definition of nearly all offences ; the most important being malice, fraud, negligence, knowledge, intention, will. There are also negative conditions or exceptions tacitly assumed in all definitions of crimes, which may be described collectively as matter of excuse." Crimes are distinguished as felonies or misdemeanors. By the common law of England, felonies were punish- able with death. In the penal codes of the United States, the distinction between a felony and a misde- meanor is mainly statutory, and has lost its original sig- nificance. The graver offences are felonies. Felonies are punishable by death or imprisonment in a state prison or penitentiary for a term of years; an offence thus punishable is a felony. Misdemeanors are pun- ishable in a minor prison for a term of months or WHAT IS CMIMEf 13 days ; an offence thus punishable is a misdemeanor. A finer example of reasoning in a circle cannot well be imagined. The distinction is purely artificial and arbitrary. The French criminal code makes a somewhat similar and equally irrational, but still more complicated, subdi- vision of crimes into three grades : (1) Contraventions ; (2) delicts ; (3) crimes. Contraventions are violations of police regulations. The penalties for delicts are cor- rectional; for crimes they are aflictive or infamous, or both. For the purpose of this argument, the one important fact to understand and remember is that nothing is a crime, which the law does not so regard and punish. Paul, who was as learned in the law as he was indefati- gable in his missionary zeal, quaintly expresses this truth, in saying to the Eomans : " Without the law, sin is dead. For I was alive without the law once ; but when the commandment came, sin revived, and I died." The origin of law is shrouded in the mists of an- tiquity. There must have been a time when there was no law, in the sense of legal enactment, for mankind, any more than there is for the brute creation. The passions of men exploded at the touch of conscious wrong, as a dog snarls and bites when another dog attempts to take away the bone which he is crunching under his teeth. ]S"o other mode of self-defence was known or practicable. There was a time when the idea of the State was foreign to human thought. Before the organization of the State, all wrongs fell into the cate- gory of torts, that is, purely civil injuries, or of sins, that is, insults to the majesty of the gods. Crimes are 14 PUNISBMENT AND REFORMATION. acts of disobedience to the state. Where there is no State, there can be no crime. The sense of wrong must have preceded the sense of right in the individual and common consciousness. We now look upon wrong as the negation of right ; but it seems probable that to the primitive man wrong was something positive, and that the notion of rights was slowly evolved, through the instinctive opposition felt to successive and repeated injuries. In Sir Henry Maine's opinion, " It is hazardous to pronounce that the child- hood of nations is always a period of ungoverned vio- lence." Nevertheless, the natural state of man without law is one of private and tribal war. Where there is no conflict, no struggle for existence, there is no life. Law is an attempt to regulate this struggle among men upon equitable principles and in the interest of the greatest number. In the primeval state of mankind the strug- gle was unregulated. The sole measure of the atrocity of an injury was the degree of the passionate reaction which it aroused. Self-defence and the redress of inju- ries were the affair of the individuals directly affected. The steps by which private war was abolished, crimes legally defined, and their punishment relegated to the judiciary will be recounted in a subsequent chapter. The definition of crimes has varied from age to age, especially in different states or nations. Offences which are punishable by law may or may not be contrary to morals. Much confusion of thought has been occar sioned by the failure to recognize this double sense of the word crime. A corresponding uncertainty at- taches to the meaning of the word criminal in the mouth of any one not a lawyer. WHAT IS CRIME? 15 Among the crimes of a superstitious age, offences against the prevailing religion occupied a prominent place. The ecclesiastical spirit finds its freest scope among the ignorant; and with savages, the priest is everywhere a personage of consequence, clothed with supernatural power and endued with authority derived directly from the gods. He bows before none but the king, and not always before him. The relation of the priesthood to the throne, whether in a theocracy or in a modern State, where the king is supposed to rule by divine right, and the right to reign is conferred with appropriate ceremonies by the Church, is such as un- duly to exalt the ecclesiastical authority. If political power in civil government is derived from the consent of any ecclesiastical prince or hierarchy, then the right of the Church to define and to punish ecclesiastical offences, either by its own courts or by those of the civil power, cannot logically be denied. The Church has always claimed this right, and where the separa- tion between Church and State is not absolute and com- plete, it must be conceded. The common ecclesiastical offences are heresy, sacrilege, sorcery, witchcraft and enchantments, blasphemy, perjury, and Sabbath-break- ing. Everywhere the heretic is one who differs in opinion from the religious party in power. Heresy in one place is orthodoxy in another, and the definition of orthodoxy changes with every alteration in popular beliefs. The Egyptians punished with death any one who should reveal the burial-place of the sacred bull, Apis, or who should even by accident cause the death of a vulture, a cat, or an ichneumon. At Athens sen- tence of banishment from Attica was pronounced against 16 PUNISHMENT AND REFORMATION. the profane individual who should pluck a leaf from the trees consecrated to Minerva. It was there re- garded as sacrilege to kill a bird consecrated to Eseu- lapius. The early Christians were thrown to wild beasts, crucified, and burned alive by the Eoman em- perors. In the Middle Ages, the Catholic church perse- cuted Protestants with fire and sword. The Protestants made similar abuse of power when fortune had placed it in their hands. Even the Puritans of Massachusetts banished Eoger Williams, though he was himself a Puritan. The ecclesiastical courts of England, until the year 1640, had the right to punish offences against religion and morals ; in other words, to punish sin as such, particularly offences arising out of the relation of sex, including every form of incontinence. This right stUl exists as to incest, which is not a secular crime by English law. The Court of High Commis- sion, which was a sort of Protestant Inquisition, was authorized to enforce ecclesiastical conformity upon all persons, lay or clerical. The decrees of the ecclesias- tical courts were enforced by excommunication and pen- ance. The greater excommunication entailed a variety of civil incapacities ; an excommunicated person could not sue, nor testify as a witness, nor come into the pos- session of an inheritance. They also had power to im- pose heavy fines, and to commit offenders to prison, though not to inflict torture or the penalty of death. The list of obsolete crimes is a long one. Possibly the most illustrious is that of lese-majesty. Laesa majestas, under the Roman law, included pretty much every form of derogation from the dignity of the Em- peror, or, in the days of the Republic, of the people. WHAT IS CRIME f 17 By the law of the Twelve Tables, it was punished by flogging to death. In England a law of Henry VIII. pronounced any one guilty of this offence who should predict the death of the king; and, the prince having been seized with an illness, his physicians dared not say that his life was in danger. Sumptuary laws furnish another illustration. The law no longer attempts to prescribe what men shall eat or wear, the number of invited guests who may lawfully sit at the table of their host, the number of courses which may be served at a dinner, or the char- acter and cost of the ornamentation which may enter into the building of a house. In Eussia, in Turkey, and in Persia — by a grand duke, by a sultan, and by a shah — the use of tobacco has been prohibited, under penalty of having the nose slit or cut off, and even of death. So, too, of legislation governing trade and commerce. Forestalling, regrating, and engrossing are now almost forgotten crimes. Yet it is barely fifty years since the political economists succeeded in wiping them off the English statute-books. To forestall was to buy goods or provisions on their way to market, with the purpose of enhancing the price or diminishing the supply. To regrate was to buy in the marketplace, in order there to sell again at a higher rate. To engross was to buy grain standing, or generally to buy up sundry kinds of provisions with the intention of selling again. The pen- alties against these acts were designed to cheapen the cost of living, by reducing the number of middlemen. In the reign of Edward IV. the sale of coin to a for- eigner was a felony. Under Lysander, the Lacedse- 18 PUNISHMENT AND REFORMATION. monians put to death any citizen found to have gold in his house. Resistance to innovation- has often sought ineffect- ually to place legal barriers in the pathway of human progress. Driving with reins was once a crime in Rus- sia, the immemorial custom having been for the driver to ride or run by the horse's side. The German print- ers who first brought printed books to Paris were con- demned to be burned alive as sorcerers, and only es- caped death by flight. Francis I., in 1635, forbade the printing of any book in France, upon pain of the gal- lows. The fate of Galileo needs only an allusion here. The medical doctrine of the circulation of the blood has also been the object of prohibitory legislation. Curious instances of absurd criminal laws might be given at tedious length. The lonians passed a law exiling all men who were never seen to laugh. The Carthaginians killed their generals when they lost a battle. Pliny relates that they condemned Hanno for having tamed a lion, because a man who could tame a lion was dangerous to the liberties of the people. In ancient Rome play-actors were deprived of citizen- ship. By the Julian law celibacy was a crime. In Sparta confirmed bachelors were stripped in midwinter and publicly scourged in the market-place. On the other hand, modern civilization has created a formidable catalogue of crimes unknown to former generations. All changes in social organization, in customs, in political control, and in religious beliefs import changes in the criminal law as their conse- quence ; because what is overthrown must be prohibited, and the new needs to be fortified and protected by legal WHAT IS CRIME f 19 sanction. But the chief source of the additions to the code which have been made in the present century is found in the altered conditions of manufactures and trade, growing out of recent scientific discoveries and their application by inventors to the arts. The business of the world as now conducted requires the protection of the law in all its parts. There are, accordingly, penal- ties pronounced against interference with the new modes of transportation by steam and electricity; penalties against infringements upon the rights of patentees ; penal- ties against the abuse of power by corporations ; penalties against illegal combinations by the employed, and against doubtful methods adopted by them for gaining a victory over their employers, or over their competitors in the labor market ; penalties against the malicious and wrong- ful use of new and destructive chemical compounds, such as dynamite ; penalties against the criminal neglect of the rights and safety of workingmen in factories and in mines. The entire body of sanitary law is for the most part new ; it is measurably due to the rapid growth of towns and the concentration of population under conditions unfavorable to health, where pestilence is easily bred, if proper precautions are not taken for the destruction of the germs of disease. With improved facilities for travel and an ever increasing number of travellers, the system of quarantine has assumed new importance and has been greatly perfected. Other illus- trations of the necessary enlargement of the criminal code, the result of the revolutions which have taken place in modern social life, will occur to every reader. History, from the sociological point of view, is an account of the variations which have taken place in 20 PUNISHMENT AND REFORMATION. human relations. Among these relations may be men- tioned, by way of illustration, the relation of the sexes; the relation of individuals and communities to the soil ; the relations of rank, precedence, and subordination ; the relations of capital and labor ; corporate relations ; gov- ernment relations ; and the like. Such relations exist wherever men are found. But they differ indefinitely in detail and combination, according to local and tem- porary conditions, especially according to the position of tribes and nations in the scale of civilization. The history of crime and punishment is an index, more or less complete, to these historical changes in social and political organization. It is a reflection in miniar ture of general history, a convenient and comprehensive introduction to the study of sociology. The relation of the sexes is the fundamental human relation. The laws which regulate it vary, according as monogamy, polygamy, polyandry, or some other system of permanent or temporary marriage is approved by the prevailing local sentiment, on the ground of its supposed social utility. These laws will be more or less rigidly enforced, as the necessity for the preser- vation of the institutions of marriage and the family are more or less highly appreciated. The toleration of competing forms of sexual relation is a sure sign of lack of respect for marriage ; and a wide gulf separates the social condition of a people among whom inquiry into the paternity of an illegitimate child is forbidden, from that of another people whose laws render such inquiry obligatory. A circumstance which must exert a controlling in- fluence over all social and political institutions is the WHAT IS CRIME? 21 mode by which the members of any given community are attached to the soil. There can have been originally no property in land; it was what the Eoman lawyers called res nullius, a thing without an owner, like the air. The first ownership must have been tribal or communal, and could have had no other basis than occupation. When the Israelites took possession of Canaan, they subdivided the conquered territory, not by individuals or families, but by tribes. Whete warring tribes con- tended for possession, as the herdsmen of Lot did with those of Abraham, the only alternative, unless the strife could be settled by an amicable agreement, was an appeal to the law of might. The allotment of parcels of ground to families or individuals, for their temporary or permanent use, was an afterthought. The lands so allotted were at first arable lands only ; large tracts still were owned in common, like the German marks. Pro- prietorship in land has assumed different forms in different countries, at different times. It has been governed by different rules, in a nomadic state, under the feudal system, and in modern times. Persons not land-owners, like the English villeins, or the metayer tenantry of Southern Europe, or the Eussian serfs, or our own African slaves, have nevertheless held certain defined relations to the lands cultivated by them, both in the nature of rights and obligations. Instances of communal ownership are still to be observed in the Russian mir and in the village communities of India. Of course these landed rights have been protected by appropriate legislation enforced by penalties, which must have varied, and still vary, with the differences in the nature of the tenure by which land is held. 22 PUNISHMENT AND BEFOEMATION. The relations created by the legal recognition of rank could only be maintained by privileges and penalties, which tend to disappear, even in their surviving rudi- mentary forms, in a democratic age. How far is crime justifiable or excusable, when two parties agree and consent to its perpetration; for ex- ample, in illicit relations between the sexes ? or in gaming, which is a form of robbery? or in the duel, which is a form of murder? The attitude of the criminal law has varied indefinitely as to offences of this description, as public opinion has tolerated or con- demned these quasi contracts to abide by the issue of an immoral action. At the present moment the pub- lic conscience is grappling with the question of the legitimacy of that form of financial speculation which consists in dealing in futures and in options. The sup- pression of the Louisiana lottery was a task beyond the ability of the people of that State ; it could not be accomplished without federal aid. The change in pub- lic sentiment which has taken place since the State of New York thought it expedient to sanction a public lottery by law, as an aid to public education, has made a crime of what was once regarded as a virtuous and patriotic action. Slavery is the child of war. The first slaves were military captives. It has been said that the institution of slavery, by putting an end to the practice of mas- sacring prisoners in mass, was the first and greatest single step in the evolution of civilization. Slavery was originally profitable. So long as it continued to be profitable, it was protected by law. But the expe- rience pf 9.11 nations iij wbicb it Jias found s. footl^ol^ -= WHAT IS CRIME f 23 and there are few which can show a clean record in this regard — proves that everywhere its ultimate ten- dency has been to destroy the nation which has tolerated it. Whenever this has become apparent, the law has overthrown it, often at the end of a bloody struggle. The time may yet come when war itself may be branded as a crime ; but if so, it will not be until the destruction of life and property which it involves is felt to be too great to be longer endured, for the sake of any incidental advantage which may grow out of it. In a word, crime is a variable quantity. It is the product of the aggregate social condition and tenden- cies of a people at a given moment in its history. Ac- tions which in one age are regarded as heroic, and which have elevated their authors to the rank of the gods, in another bring the same daring spirits to a dungeon or the gibbet. The connection between law and ethics is not nearly so close as is commonly imagined. In law nothing is wrong which the law itself does not forbid. Precedent and prejudice wage perpetual war with prog- ress. The conservative instincts of the race, which are allied to authority in Church and State, in the form of established governmental institutions, oppose the radical and revolutionary tendencies of the political and social innovators whose respect for the past is limited by the intensity of their aspirations for the future. That which is permanent and abiding in human nature con- stitutes its larger part ; but there is enough that is evanescent to impart a transitory character to many alleged crimes and many forms of punishment. Prog- ress has been attended by one constant effort to throw Qfi oppressJoa — yeligigus, political, legal, and military j 24 PUNISHMENT AND BEFOBMATION. to find room for the exercise and development of in- dividual tastes and capacities. The determination to conquer personal freedom has been indomitable, and it has furnished many martyrs, whom tyrants have branded as criminals. These observations have a distinct bearing upon the question, much discussed of late, whether crime is a disease. Since what is crime in one age is no crime in another, then, if crime is a disease, disease in one age may be health in another. Where heresy is regarded as a crime, the heretic must, upon that theory, be a person whose physical and mental constitution are more or less abnormal. Christians might be regarded as suffering from disease, or at least as constituting an anthropological type, in Arabia ; and Mussulmans must be similarly regarded throughout Christendom. The importance of a distinct understanding of terms, before we enter upon the discussion of biological theories of crime, is thus apparent. Crime is not a character which attaches to an indi- vidual. It is not a simple phenomenon of ethical aber- ration from 3, standard type. It is rather a complex relation, which the law creates between itself and the law-breaker. The law creates crime. It therefore cre- ates the criminal, because crime cannot be said to exist apart from the criminal. The criminal is a man who puts himself in an attitude of antagonism to the law. We are discussing here, not the ethical rights and obli- gations of men in association with each other, but their legal rights and responsibilities. We are discussing, not what ought to be, but what is ; and one object of this book is to show how the law has treated what the law has declared to be a crime. RETRIBUTION FOB CRIME. 25 CHAPTER III. RETRIBUTION FOR CRIME. In dealing with crime and criminals, society may proceed upon either of four principles. It may inflict vengeance upon the culprit, as an act of justice, because he merits punishment. Or it may have recourse to severe penalties, not from any vindictive motive, but with a view to intimidate the guilty and to deter others from imitating their bad example. Or it may aim at the reformation and rehabilitation of the offender. Or, finally, it may attempt to prevent the commission of crime, by vigilance, by the moral training of the young, and especially by devising practical checks to the oper- ation of the causes which are known to swell the aggregate of criminality. These four methods are not mutually exclusive. Historically, however, each of them has been made prominent, in the order of suc- cession in which they have here been named : retribu- tion, repression, reformation, prevention. The primitive man knew nothing of law. There was no law in the garden of Eden, except the divine injunc- tion not to eat of the tree of the knowledge of good and evil. How, then, was social order maintained ? The generally accepted theory of primeval social or- ganization is that it was by families. In other words, it was patriarchal. So it is represented in that ancient 26 PUmSBMENT AND REFORMATION: record, the book of Genesis. The histories of the families of Abraham, Isaac, and Jacob are not unlike instances ■which might be cited from other nations of antiquity. The power of control was vested in the father of the household — the patria potestas, as it is termed in Eoman law. This power was so great, that it extended even to life and death. It was no less absolute over children than over slaves. The original social unit was not the individual, but the family. The title of the family to property — to flocks and herds, to servants, to growing or harvested crops, to such rude money as then circulated for purposes of exchange, to the imper- fect tools and implements of peace and war — was vested in the patriarch ; in a representative capacity, perhaps, but without any actual restriction upon his discretionary right to dispose of it at his will. He rendered judgment, and from his decision there was no appeal. Out of the family grew the tribe. When the family became overgrown, there was but one remedy for the inconveniences which resulted from such overgrowth, namely, separation — amicable division. So Lot sepa- rated from Abraham. So, after the death of Jacob, the children of Israel grouped themselves according to the nearness of their blood relationship, by tribes. A similar organization was that of the Scottish nation, by clans. All this is so familiar to the intelligent reader, that it need not be enlarged upon here. It would be foreign to our present purpose to point out the steps by which tribes became united and blended, so as to form in- choate nations, which grew into complete statehood by RETRIBUTION FOR CRIME. 27 impulses from -within and shocks from without.* What concerns us now is to note the original supernatural sanction for the authority vested in the father of a family or a tribal chieftain. The primitive form of religious belief, though it was not and could not be formulated, must have been really pantheistic. The superstitious savage sees in every movement of natural objects the visible manifestation of the power of an in- dwelling spirit. Spirits move the sun, the moon, and the stars across the sky ; spirits make the leaves and the grass to wave, and water to ripple, in the wind ; spirits make the flame and the smoke to rise, and the rain to fall; spirits are in the growing plants, in the rushing rivers, in the flash of lightning, and the roar of thunder. What more natutal than that they should suppose that spirits suggested the thoughts of men? Especially did they believe this of the most powerful of all men, the patriarch. They had no rules by which to order their actions in advance. They simply followed their natural instincts, and the head of the family or of the tribe pronounced ex post facto judgment upon them. His judgment, whatever it might be, was a divine judgment, dictated to him by the gods. Homer calls these inspired utterances themistes, for this pre- cise reason. It seems hardly necessary to allude, by way of confirmation, to the well-known practice of the early kings of Greece, who were in the habit of consult- 1 The deep pulsations of the world, Ionian music measuring out The steps of Time — the shocks of Chance — The blows of Death. Tennyson. 28 PUNISHMENT AND BEFOBMATION. ing the oracles, particularly the oracle at Delphos, be- fore rendering judgment; or to the Eoman augurs. Nevertheless, every judgment pronounced formed a precedent. The body of such precedents gradually ac- quired some measure of consistency. They were re- membered and anticipated. Thus grew up customs, which were the prepotency and promise of laws to come, when the invention of letters should enable men to supplement and supplant tradition by written records. Then usages would become fixed, and the maxims in which they were embodied could be collected and com- bined in the form of codes. This is precisely what happened. It would not be strictly accurate to call the decalogue a code, since the conunandments have no penalties attached to them. But the Twelve Tables of the Eomans, which are very fully described in Stephen's History of the Criminal Law, form an ancient and admirable example of a code. AU the offences known to early Koman law are there listed, and the penalty for each of them is stated with precision. Still, we see in those tables only the dawn of legislation. The legislative function began to be imperfectly discriminated from the executive in govern- ment. The night of superstition began to flee with reluctant, hesitating step, before the rising light of reason. The genius of Eome was not yet able to dis- tinguish sharply crimes from torts, or to cover the ground which a penal code ought to cover, or to meas- ure guilt and penalty, and adjust them to each other with any approach to a correct estimate of either. Neither had the human intellect yet grasped the con- ception of the difference between legislative and judicial functions. RETRIBUTION FOR CRIME. 29 The origin of courts is very obscure. Ninus, the founder of the Assyrian empire and the builder of Nineveh, is said to have instituted, in almost prehis- toric times, regular and orderly tribunals — one for the trial and punishment of murder, another of theft, and a third of adultery. Whether this be true or false, something like it is discoverable in Roman history. The first courts were merely committees of the legisla- ture, to which the duty was intrusted of making certain investigations and decisions with reference to matters referred to them. They were called qumstiones, or in- quests. Human nature and human needs do not vary, except within tolerably narrow limits ; and it might easily happen that some such division of crimes to be inquired into took place in Eome as that credited to Persia. Such inquests, at first temporary in their juris- diction, naturally tended to become permanent, as their utility was recognized, and to acquire an authority more or less independent of that by which they were created. It is curious to observe how the steps in the process of growth of jurisprudence just described with so much brevity, and yet, it is hoped, with sufficient accuracy and clearness, correspond to the Speneerian formula of evolution. Von Baehr, the great German naturalist, observed that the growth of the egg is marked by a change from a state of simplicity or homogeneity to one of complexity or heterogeneity. This was Herbert Spencer's starting point. He added that, along with the change from simplicity to complexity, may also be observed a counterchange from indefiniteness to definiteness, and from incoherence to coherence. Von Baehr had noticed that the change is one of differenti- 30 PUNISHMENT AND REFORMATION. ation. Spencer added that it is also one of integration. Jn other words, Von Baehr called attention to the analytic aspects of the change, but Spencer to its syn- thetic aspects. Accordingly he defined evolution, which is but another word for growth, as " a continuous change from indefinite, incoherent homogeneity to definite, coherent heterogeneity, through successive differenti- ations and integrations." This formula, which is as simple as it is symmetrical, applies, so far as we can yet see, to all living organisms ; and to the extent that human society is a living, organic thing, capable of growth and development, all history unfolds in accord- ance with it. Let us apply it to what has thus far been said about the history of government and of law. The union of all governmental functions in one person, the person of the patriarch, was certainly the acme of simplicity and homogeneity ; but it lacked nothing so much as defi- nition. The breaking-up of the famUy into tribes was a process of disintegration, and the more perfect union of the tribes under the form of a state was an act of integration. By the joint and successive operation of these two processes, the vague and ill-defined power residing in the family or tribal chief continually tended, through analysis, to become more definite ; to reveal it- self at first as separable into two, the executive and the legislative, but later into three, the executive, legis- lative, and judicial functions. The conception of crime became correspondingly more definite, and at the same time that of penalty also. The system of legislation and of administration became steadily more complicated and yet more consistent. In proportion as we compre- RETRIBUTION FOR CRIME. 31 hend and retain in our minds this history, the meaning of the formula becomes plain ; and vice versa. History, read in this light, ceases to be a chronicle of events, like a catalogue of words in a dictionary, bearing no organic relation to each other. We begin to see the beauty of the providential purpose which unites and regulates it, so that its varied parts form a distinct pattern, which it is possible to trace out and remember. Besides, the direction of the lines which we have followed to their termination in the present must be the same in the undiscovered future ; and so we are able to forecast the ways which progress must take, if the unity of history, which is the unity of truth, is not to be vio- lated, as we know that it cannot be. But this is a digression. To return to the thread of our story, let us revert to the remark already made, that the primitive state of mankind must have been one of war, both individual and tribal. In the absence of law, there was no way to settle disputes but by the arbitrament of force. To defend one's conception of right, at any risk, was regarded as highly moral ; to refuse to do so as an immoral act. The fundamental principle of morality is reciprocity. I must give an equivalent for what I get. My neighbor has no right to take from me that for which he does not render an equivalent. If one term of the equation is a minus quantity, the other must be. The primitive man could not see why, if we are to return benefits, we are not to return injuries, upon the same basis of give and take. Accordingly, the instinct of retaliation is one of the deepest instincts in human nature ; it survives even in the civilized man. Where there is no possibility of 32 PUNISHMENT AND REFORMATION. obtaining satisfaction or indemnity without violence, violence no longer presents itself to the imagination as an act of vengeance, but of self-defence. The lex talionie, therefore, is the most ancient of all lavs. When Cain had killed his brother, he realized in an in- stant, (with no experience to give his thought the form which it assumed), that every man who saw the blood upon his hands would seek his life in Abel's name; and God set a mark upon him for his protection — which the apologists for capital punishment upon reli- gious grounds can explain as they are best able. There is no reason to accept the theory of some scholars that the lex talionis originated in Egypt. Ehadamanthus, the wise, just, and (for his age) humane lawgiver of Crete, whom the ancients held in such estimation that the mythologists made him a judge in the lower world, is said to have introduced it into Crete. But it is as old as human nature, as universal as mankind, and as enduring as this present evil world. It was never better stated than in the Mosaic law : " Thou shalt give life for life, eye for eye, tooth for tooth, foot for foot, burning for burning, wound for wound, and stripe for stripe." I have too sincere an admiration for Moses (who miist, I think, be admitted to be the greatest man of all ages, in view of what he did as a lawgiver, not for the Jews only, but for all nations as well), to let this quotation pass without a single apologetic remark, little as Moses needs defence. To be sure, the milder and gentler spirit of the gospel shines by contrast in our Lord's doctrine pf non-resistance, which, however, men are not disposed to accept in its literal fulness. Moses BETBIBUTION FOB CBIME. 33 is expressly said to have tolerated divorce on account of the hardness of heart of his contemporaries. In the same way he tolerated retaliation for injuries, but sought to restrain the vengeful impulses of men by limiting the degree of reciprocal injury to an exact equivalent; an eye for an eye, but no more — not one wound or stripe in excess of the exact tale of indebtedness. He recog- nizes and enjoins upon the wrong-doer the sacred obli- gation to render satisfaction to the party injured, but, with Portia, cries to the latter : — " Shed thou no blood; nor cut thou less, nor more, But just a pound of flesh." Given these two conditions — the family or tribe as the social unit, and the right and duty of retaliation supposed to be an ethical axiom — and there could be no avoidance on the part of all the members of a family or tribe to take part in the quarrel of every injured member. Organized revenge became a social institu- tion, under the title of the "blood-feud." In a rudi- mentary form, ever tending to become obsolete, this institution survives in our own country, at the South, where the vendetta is more dreaded than a pestilence ; the vendetta of which Mark Twain has drawn so exact a picture in that delightful book for boys, " Huckleberry Finn." It is the Southern sense of the solidarity of the family, in opposition to extreme Northern individualism, which is the explanation of its survival, in connection with the more or less patriarchal institution of African slavery, not yet extinct in an age when it had become an anachronism. There were, however, two ef&cient checks upon pri- 34 PUNISHMENT AND MEFOBMATION. vate vengeance, of which the first was the right of sanc- tuary. It may surprise some readers of this little book to observe the extent to which the author recognizes the Bible as a sort of elementary text-book of sociology ; but this is one of its legitimate uses. The children in our Sunday-schools have been made acquainted with pretty much all the leading features of primitive society, in so far as they bear directly upon the question of the order of social evolution, of which this is an instance in point. They know that Moses instituted cities of refuge, in which a homicide was safe from the avenger of blood, pending a judicial investigation of his criminal respon- sibility. Similar sanctuaries have been established by the customary or statutory law of most nations. At first they were the temples, and later the churches. The frightened refugee fled to some sacred place, the peace of which could not be lawfully violated, and there he had a right to remain for a certain specified period, until the affair could be arranged by interme- diation and mutual concession. When we come to dis- cuss the history of English transportation, we shall see how exile grew out of sanctuary ; the peace of the gods was replaced, in the modern state, by the king's peace ; the man who left sanctuary usually fled the country; and, when sanctuary was abolished, the criminal was driven from the country. The other check upon the tendency of retaliation to run to excess was the system of composition for in- juries, out of which has grown the use of pecuniary fines as a form of legal punishment. We have re- marked in substance that the historical basis of all crimiaEil codes is fpund i» tb? orifiu?),! acceptance ol BETRIBUTION FOB CRIME. 35 retribution as tlie sole remedy for wrongs, and the ethi- cal justification of private and tribal war. When, in the course of time, the conception of the State as an entity arose from the chaotic earlier political thinking of primeval man, and it was seen that the State as such could itself be wronged, by disobedience to its mandates and defiance of its authority, the State was compelled to assume that it had the same right to inflict ven- geance which inhered in a natural person. But, be- yond that, the State at a very early stage in its ovv-n evolution assumed the role of an arbitrator and medi- ator in private controversies, as an obvious safeguard against the peril of a return to a condition of tyranni- cal exercise of arbitrary power, or a lapse into anarchy. It can hardly be too strongly insisted upon, that crime was originally nothing else than war. It is still war, but in a qualified sense. The plaintiff and defendant in a suit were therefore regarded as combatants in a new and compulsory arena ; the State was the referee, with power to prescribe the rules governing the strug- gle, to enforce them, and to award the victory. It was virtually a public and oflcial peacemaker. Some historical instances will illustrate this relation. Burckhardt describes in an amusing way a settlement made by a Persian cadi between two men named Bokhyt and Djolan. Bokhyt called Djolan a dog, which in the Orient is a deadly insult, worse than if you should call a Frenchman a pig ; and perhaps the character of the curs of the East warrants its being so regarded. There is not in the Hebrew Scriptures a single good word for a dog, and an unappreciated touch in the description of the New Jerusalem, with which the New Testaffieat 36 PUNISHMENT AND REFORMATION. closes, is the declaration that there will be no dogs in it. Very well. Bokhyt called Djolan a dog, whereupon Djolan promptly hit him. Bokhyt then whipped out a knife and cut Djolan in the shoulder. After hearing the facts in the case, the cadi decided that there was due to Djolan from Bokhyt for the insulting expression a sheep, and for the wound inflicted with a knife three camels ; but to Bokhyt from Djolan for the blow upon the arm one camel. The balance of the account was in Djolan's favor, and, upon the payment to him by his antagonist of one sheep and two camels, peace was restored. Sir Henry Maine has called attention to the trial scene upon the shield of Achilles, in Homer, where the ques- tion at issue was the amount to be paid in composition for a murder. One of the parties claimed that such payment was due, but the other denied the obligation. In the centre, between the disputants, lay two talents of gold, which were to be given to the spectator who should give the shrewdest opinion and the best reasons for it, the crowd to be the judge and award the prize to the winner. Composition of injuries was no less common among the Eomans than among the Greeks. Reference may here be made to the famous description by Gaius of the legis actio sacramenti, an action very similar to the in- cident depicted upon the shield of Achilles. One of the parties claimed that the other was his slave; the other denied the claim. This quarrel was referred to the praetor for decision. You need not be reminded of the great importance which attaches to ceremonial among people more or less incapable of abstract think- RETRIBUTION FOR CRIME. 87 ing. In all ancient legal proceedings due regard to ceremony was essential to the validity of transactions. The gestures in this case -were as follows : First, the plaintiff, taking a wand, which represented a spear, ad- vanced and touched the alleged slave with the point, after which he laid his hand upon him, thus asserting in expressive pantomime his right to him. The slave replied by taking a similar wand and repeating every motion of his pretended master. The praetor ordered both to release their hold of each other, and said that he would give a decision of the point at issue. The plaintiff then produced a sum of money, which he offered to wager that he could substantiate his claim. The defendant wagered an equal amount. When the case had been heard and an opinion rendered, the praetor took the money of both as compensation for his services, which goes to show that law has been an expensive luxury from a very remote date. Our laws are not founded so much upon Eoman law as upon the common law of England, which was a develop- ment of the practices and maxims of our Teutonic fore- fathers. Of the Germans, the Romans said that their business in life was bloodshed and acquisition by blood- shed. The Anglo-Saxons had three words to designate money paid in compensation for injuries. Bot was paid, if the injury was accidental or trifling ; in compensation for a crime the aggressor paid wite ; the word wer meant the valuation of a man according to his rank, which was payable in some cases to the party wronged, as bot, but in others, as wite, to the king. Wergeld, or blood-money, was the only penalty known to the ancient Salic law. Under Alfred the Great, minute regulations as to com- 38 PUNISHMENT AND BEFORMATION. pensation of injuries were drawn up at considerable length, according to which, if a man cut off his enemy's thumb, he had to pay bot to the amount of twenty-five shillings ; for cutting off the first finger fifteen shillings, the middle finger nine, the fourth finger six, and the lit- tle finger five. These are given merely as illustrations of the fundamental principle of early criminal law. Moses, on the contrary, strictly forbade the payment or acceptance of blood-money. That principle in its essence was the substitution of penalties. The lex talionis, as stated in the Mosaic code, was so modified as to admit of an agreement between the parties, or an adjustment by intervention of some legally constituted authority, which would dispense with the literally exact observance of the rule, "eye for eye, tooth for tooth, wound for wound, stripe for stripe," and require the aggressor to submit to some other substantially equivalent damage by way of expiation for an injury done, which would at the same time be more satisfactory to the injured party. The principle just stated underlay, of course, the doc- trine of penance taught and practised by the mediseval Church. It was easy, after advancing from the thought of crime as a personal injury calling for personal retaliar tion to that of corporate injury calling for corporate retribution, to take the further step involved in the conception of the violation of justice in the abstract, an injury to the gods, a disturbance of the ethical balance of the universe. Indeed, it might be difficult to prove that the claim of the Church to inflict spiritual penalties for crime did not antedate the claim of the State to deal with it, as the depositary of civil and political sover- RETRIBUTION FOB CBIME. 39 eignty ; since belief in spirits and the supernatural long preceded the acceptance of the notion of the State. As an offence against the majesty of heaven, crime assumes an immeasurable importance, and calls for reactionary penalties proportionate to the distance between the gods and men. Hence the Church, in the exercise of criminal justice, tends to greater severity than the civil power. It also enjoys a freedom from restraint, in the matter of substitution of artificial for natural expiatory punish- ments, to which the State can lay no claim. It has even been said that the prohibition of private vengeance was in its origin sacerdotal. However that may be, the State gained control of the punishment of crime, in the first instance, as the natural consequence of the perception of the solidarity of fam- ilies and communities. The recognition of this soli- darity, on both sides of the line which separated the parties who inflicted and who bore the injury, was toler- ably impartial. In Rome, when a master had been mur- dered by a slave, the law authorized the execution of the entire body of slaves of the murdered man. Sim- ilarly in Greece, at least in Athens, three persons, from the household where a murder had been committed, could be held until the murderer was delivered to jus- tice, and, in default of his delivery, they could be ad- judged guilty in his stead. On the other hand, if a man killed without premeditation had no relatives to claim compensation on his account, ten citizens of the curia could make pecuniary settlement with the homicide. The seizure by the State of the exclusive right to inflict retributory punishments was in the interest of 40 PUNISHMENT AND BEFORMATION. peace, but not necessarily of justice, for the reason that, if crime is an offence against justice regarded in the ab- stract, a small offence, if its magnitude is measured by the resulting damage, may be thought by the State to merit a disproportionate penalty; and this will tend to be the case, in proportion as the power of the State is vested in an oligarchy as its absolute prerogative. Theo- retically, an injury to any citizen is an injury to the social whole of which that citizen is a member; but, under the feudal system (when the king of France dared to say that he was the State), the grand seigneurs dis- posed of the property and persons of the common people, on the pretext of their criminality, almost at discretion. They had power, under the guise of compo- sition of public injuries, to fine their dependants, until the administration of justice became an act of blackmail and of confiscation. The robber barons of the Middle Ages were plunderers, who demanded ransom in propor- tion to the wealth and rank of their victims. They en- joyed private and personal jurisdiction apart from the sovereign, and had their own dungeons, and erected their own gibbets, a privilege which they highly prized. Under this system, the number and severity of pun- ishments greatly increased. By Eoman law, the person of a citizen was inviolable ; before corporal punishment could be administered to him, he was, by a legal fiction, reduced to the status of a slave, and declared to be servus paenm. In France, in the Middle Ages, a noble could not be punished without first being reduced from his rank. But the abolition of slavery in Europe had for its first effect simply the extension of the penalties formerly reserved for slaves to the free-born. The in- RETRIBUTION FOR CRIME. 41 violability of the aristocracy continued until the tri- umph of democracy, in England, France, and the United States, accompanied as it was by bloodshed, which did not spare even crowned heads, virtually extinguished class privileges. 42 PUNISHMENT AND REFORMATION. CHAPTER IV. EARLY JUDICIAL PEOCEDUEB. Befobe proceeding to discuss the treatment of crime for its repression, it seems necessary, in order to the continuity of the narrative, and as a sidelight upon questions that are likely to arise, at any rate in the mind of the reader, to turn for a moment to consider early judicial procedure, in its relation to more modern methods. The creation of courts was an indispensable step in the effort to abolish private war. So long as private war was tolerated as a lawful riode of redressing wrong, the only measure of justifiable retaliation was the de^ gree of passionate anger aroused in the injured person, With the delay in the exercise of summary vengeance, this anger tended to subside. The civil power, in inter- vening for the plaintiff, was bound to regard and reflect as nearly as possible his state of feeling. Hence the distinction in the treatment of offenders caught in the act and those not so caught. The law of infangthef (from the German infangen, to seize and hold by the fangs) authorized the aggrieved party, or any other person, to follow a thief caught in the act, and kill him wherever found. A corresponding distinction was made, by the Twelve Tables, between manifest and non-manifest theft. Manifest theft was punishable, as in England under the law of infangthef, EARLY JUDICIAL PROCEDURE. 43 by death; but non-manifest theft "was punishable by a simple fine, equivalent to double the amount stolen. If the State was to assixme the duty of arresting wrong-doers, a systematic organization of arrests had to be devised, which was accomplished by means of the division of the population of England into shires, hun- dreds, and tithings. Allusion has been made to the institution of the king's peace, by which brawls in the presence of the king, or in places likely to be frequented by him, were forbidden and severely punished. Certain streets of London were thus set apart. There was also the Church's peace; and even some of the great lords temporal enjoyed, in an age of tumult and disorder, this privilege of a quiet life. Since the transfer of political power to the people, the king's peace has become the public peace ; and fighting in public is now everywhere a breach of the statutes, since the majesty of the com- munity, as a whole, is equal to that of any individual exercising rule by divine right vested in himself alone. The institution of the king's peace suggests another ancient institution, that of peace-pledge, as it was called. It was also called frank-pledge. The tithing was a group of ten men organized as a guild. A guild was in some sense an artificial family, held together by a conunon interest, and governed by rules which had the sanction of long-established usage in their favor. Guilds played a great part in the development of the trades and industries of our modern life. The tithing was a political or governmental guild. Ten guilds constituted a hundred, and every shire was subdivided into hun- dreds. The principle of solidarity, of which mention 44 PUmSMMMNT AND hsfohmation. has several times been made, applied to it, since all the members of any tithing were held responsible for the actions of each and every member. This mutual responsibility constituted peace-pledge. It was the original form of police protection. When it was neces- sary to pursue a fugitive from justice, a hue and cry was raised, and all the members of the tithings, the hundreds, and the shires were compelled to join in it. A criminal could be followed from one shire to another ; but, at the boundary line dividing two adjoining shires, the sheriff and posse of the new shire took up the chase, and the members of the posse which had driven him out of their own shire were relieved, and at liberty to dis- perse to their own homes. The inhabitants of any shire, who could not show that they had tracked any man against whom a hue and cry had been raised, as far as their own boundary, and forced him over it, became liable for the payment of any damages which could be legally collected on account of the wrong done. War- rants of arrest were a later invention, and, when first invented, they were known as warrants of hue and cry. Let us suppose the thief caught. How was he tried ? In Oriental lands, and to a limited extent in Germany, by a popular assembly or an assembly of the elders. But in England, and generally in the north of Europe, by one of two obsolete proceedings, ecclesiastical in form and superstitious in fact, namely, by ordeal or by compurgation. Ordeal (urtheir) was nothing more or less than an appeal to the Almighty to perform a miracle in vindica- tion of the innocence of the accused. I will endeavor to describe one form of the ordeal EARLY JUDICIAL PHOCEDUEH. 45 of water. Imagine a church with an earthen floor. Upon the ground, in the centre of the church, a fire has been kindled, the smoke of which rises to the roof, obscuring the altar and the sacred images. Not even the pitying Christ upon his wooden cross can see what is about to happen in his name. Over the fire is an iron kettle with water in it. The company present and tak- ing part in the ceremony is ranged in two divisions, on the two sides of the church, one party being the party of the accuser, and the other of the accused. The priest, bearing the Bible and the rood, and carrying holy water, passes around among them, sprinkling them with holy water and making them kiss the rood and the book. When the water boils, he asks them to join with him in prayer that the truth may be made known. The accused comes forward, his arms swathed in linen, and is ordered to pick up a stone at the bottom of the kettle. There were two forms of the ordeal, single and triple. In the single ordeal he immersed his hand to the wrist, but in the triple ordeal he immersed his arm to the elbow. After picking up the stone, three days were allowed for the scald to heal, when his arm was un- wrapped, and, if any sign of the scald appeared, he was held to be guilty. The ordeal by iron was substantially the same, except that the accused, instead of dipping his hand into boil- ing wkter, was required to pick up a piece of red-hot iron — one pound in the single, and three pounds in the triple, ordeal. By this device the power of the priests was aug- mented to a highly dangerous degree. Practically, they had the opportunity to destroy their enemies without 46 PUNISHMENT AND MEFORMATION. risk to their friends, since they could swathe the arm more or less heavily, and even apply in advance chem- ical preparations which would protect the flesh from burning. Tor priests under accusation no such chances were taken. All they had to do was to eat a piece of bread called corsnmd. It could be poisoned at the suggestion of malice, but if not, the danger of conviction was nothing. Ordeal could be escaped in but one way, by compurga- tion. The accused might bring his friends, naturally members of his own tithing, to swear that they believed that the oath to his own. innocence which he had taken was a true oath. If the number of compurgators was insufficient, he had to undergo the ordeal. The required number was usually twelve. This practice was no doubt conducive to wholesale perjury, but it was the precursor of trial by jury. William the Conqueror introduced into England the wager of battle. Each party chose a champion, and the two selected fought to the death in the presence of the constituted authorities ; the one who was beaten was declared to be recreant, a judgment which rendered him infamous, if he did not lose his life. This was merely regulated, limited private war. In the wager of law, the accused appealed to a jury. The jurors could at the same time be witnesses. Indeed, if there were not enough men who already knew enough about the case to pass upon it without further evidence, the tale of jurors was completed by afforcement. The chances of the alleged culprit were rather slim, under a system which knew nothing of any jury but the grand EARLY JUDICIAL PROCEDUBE. 47 jury, the members of which were not merely witnesses and accusers, but also judges of his guilt or innocence, concerning which their minds were made up when they were summoned to act. The first grand assize took place under Henry II. The creation of a distinct petit jury was an afterthought, when the injustice of the original jury system forced itself upon the notice of men. If a prisoner refused to plead to the charge brought against him, he was said to stand mute. Eefusal to plead subjected him in the first instance to the prison fort et dure, where he was given nothing to eat, or at best only bread and water, so that he starved to death, if he continued obstinate. Subsequently for the hard and strong prison was substituted the peine fort et dure, which consists in pressing a man to death by placing him upon his back upon the floor, with a platform rest- ing upon his breast, on which was piled iron until the life was crashed out of him. Dreadful as was the suf- fering, many men endured it without flinching to the bitter end, rather than impoverish their families by pleading and then being found guilty, which involved the confiscation of the prisoner's estate. But it is no part of the author's intention to describe in detail the evolution of the courts in England, which has been done by Sir James Stephen, and is not ger- mane to the special topic under discussion — the history of punishment. 48 PUmSBMENT AND BEFOMMATION. CHAPTER V. ^ INTIMIDATION AND TOETUEE. The second of the four methods of dealing with crime is repression by intimidation. The motive of retribu- tory punishment is the desire to obtain indemnity for the past ; that of deterrent punishment is the wish to gain security for the future. Eetributory punishment is supposed to be an effort to adjust and close an account, on a mathematical basis ; it is the equation of guilt and suffering — the suffering of the wrong-doer against that of the party wronged, including the state with the indi- vidual. Or if guilt is measured, not by the resulting damage, but by the intention of the culprit, there is stiU, in the minds of those who justify the infliction of pain and loss upon a fellow-man on the ground of the satis- faction of abstract justice, a vague notion that some ascertainable or non-ascertainable amount of sorrow or agony, endured voluntarily or under compulsion by the guilty, will exactly balance the selfishness and malice which prompt any criminal action. Many men, looking at the question from its purely ethical side, imagine that punishment on any other basis is immoral. Others think that man has neither the power to read the heart and estimate guilt, nor the right to avenge it, but that such power and right are the prerogative of Deity. In- stead of seeking to restore the lost equilibrium of two hostile individuals in their relation to each other, or the INTIMIDATION AND TORTURE. 49 equilibrium between any individual and the community, they have in view the sole end of protecting the com- munity against a repetition of the offence ; and, to secure this end, they are ready to sacrifice any number of individuals. As against the social whole, in their opinion, the individual has no rights. That is to say, he has no rights which society is bound to respect, in comparison with its own real or fancied safety. The suffering inflicted upon the criminal may be more or less than he deserves, from the point of view of strict eqviity ; but it does not matter, if the deterrent influence of the example is not lost upon others, who might other- wise be tempted t6 break the law after the same fashion. It would be idle to cherish the hope that the time will ever come when mankind will accept one of these theo- ries to the exclusion of the other. Historically, they have coexisted ; and they find by turns an echo in the approving thought of all intelligent men. On either theory, there is practically no limit to the degree of pain which may lawfully be visited upon victims of the law's displeasure. In entering upon the painful task of recounting the history of inhumanity by which the administration of the criminal law has been disfigured and disgraced, in all ages and in every quarter of the globe, I shall not, therefore, endeavor to analyze the precise motive which prompted each of the several acts of cruelty which it is necessary to describe. The reason for entering upon this branch of the general subject is that it really forms the larger part of the history of the treatment of crime, extending from the dawn of civilization to a very recent period ; and that it is the dark and bloody background 50 PUNISHMENT AND REFOBMATION. against whicli modern theories of the purpose and methods of treatment stand out in shining relief. The reader who shrinks from the thought of physical and mental agony as too painful for him can pass this chapter without reading. All possible cruelties fall into two great divisions, according as they do or do not terminate in the death of the victim. CAPITAL PUNISHMENT. Death is the most ancient of all penalties, and the most common in antiquity, as it still is among savages. It is the most effectual mode of getting rid of trouble- some or offensive characters ; and the feeling of revenge,, when in active operation and unrestrained by the con- siderations which appeal to the intellect and conscience of civilized men, is an impulse which grows by what it feeds upon, and very easily runs to excess, nor stops short until the extreme limit of possible agony has been inflicted upon the sufferer. Among the modes of taking human life which are or have been practised by conquerors and rulers, may be . mentioned : burning, beheading, hanging, drawing and quartering, breaking on the wheel, crucifixion, strangu- lation, suffocation, drowning, precipitation from a height, stoning, sawing asunder, flaying alive, crushing beneath wheels or the feet of animals, throwing to the wild beasts, compulsory combat in the arena, burying alive, boiling, empaling, pressing, piercing with javelins, shoot- ing, starving, poison, the troughs, melted lead, serpents, blowing from the mouth of a cannon, and electrocution. I have named about thirty different ways of taking life, INTIMIDATION AND TORTURE. 51 under some of which a number of sub-varieties may be specified. Burning, for instance, is a very ancient method. It is mentioned in the book of Genesis; Judah proposed to burn Tamar, his daughter-in-law, when she was found to have lapsed from virtue. Moses ordained burning as the penalty of incest. Achan was burned. The three Hebrew children, captives in Babylon, were cast alive into a furnace of fire. In the worship of Moloch, a hollow image of the god, of brass, with folded arms, was erected ; babes were laid, as living sacrifices, in the idol's arms, and killed by the heat of the flames from a fire kindled within. Caesar tells us that the Gauls and Britons of his day thrust captives in mass into a wicker image of gigantic stature, then piled wood around, lighted it, and, in the midst of the smoke which con- cealed the god and his victims from sight, the image and its living contents tumbled together into the fire, where they were consumed. In the early history of England, slaves were burned for theft; female slaves were burned by women — eighty other female slaves were compelled to assist at the ceremony. Burning was the mode of execution of slaves also in Eome. The Theodosian code prescribed this punishment for witch- craft. In the Middle Ages, burning was the usual pun- ishment for sacrilege, parricide, poisoning, arson, and the crime against nature. Under the term sacrilege were included heresy, witchcraft, atheism, blasphemy, and the like. It was customary to drive a stake in the ground, build a platform around it, set straw and fagots in order under or upon this platform, leaving an open- ing for the introduction of the condemned, then bind 52 PUNISHMENT AND REFORMATION. him to the stake by iron bands about the neck and waist, and light the bonfire. If it was desired to abbre- viate the agony of the victim, a cord passed around his aeck was secretly tightened from behind, before setting fire to the pile ; or his heart was pierced, through the flames, by an iron dart at the end of a long hooked pole used to stir the fire. A handful of ashes was thrown in the air at the conclusion of the ceremony. In the auto-da-fe, or act of faith, the accused was given an opportunity to recant, upon the platform, in the hear- ing of the spectators ; and, if he failed to avail himself of the opportunity mercifully given him to save his life, the ceremony proceeded. In London the ordinary place for kindling the sacred flame was at Smithfield ; and the frequency of this punishment under one of the English queens has fastened upon her the title of Bloody Mary. i England, to her everlasting shame be it spoken, de- manded the death of Joan of Arc, who was burned at the stake as a heretic, though she has since been canon- ized as a saint. Under Henry IV., of England, a law was enacted which authorized sheriffs to burn heretics without a writ ; for this reason no estimate can be formed of the number burned in that country. Burn- ing was also the penalty of treason. Even women were thus punished, under English law ; and it is only about a hundred years ago that burning for treason was abolished. Other modes of burning have been in vogue in other parts of the world. Nero smeared the bodies of the early Christians with pitch, and, it is said, used them to light the streets of Eome. In Persia, the punishment invented by Sefi II., known as the illumi- INTIMIDATION AND TORTURE. 63 nated body, consisted. in piercing the body with num- berless holes, in which burning wicks were inserted. In China a woman is credited with the invention of pao-lo, which was a tall metal tube, to the top of which the victim was bound, with arms and legs encircling the tube, and a fire kindled at the bottom was kept up until his remains were reduced to ashes. So, too, there have been many ways of beheading men sentenced to die. The Romans used a short sword called the glaive, with which, no doubt, John the Bap- tist was beheaded in prison. The method followed in China and Japan is described as follows : — The criminal is carried to the place of execution in a bamboo cage, and by his side is a basket in which his head will drop when removed. He is pinioned in a very effective manner. The middle of a long thin rope is passed across the back of his neck, and the ends crossed on his chest and brought under the arms ; they are then twisted around the arms, the wrists are tied together behind the back, and the ends are fastened to the portion of the rope on his back. A slip of paper containing his name, crime and sentence is fixed to a reed and fastened at the back of his head. On arriving at the place of execution, the officials remove the paper and take it to the presiding mandarin, who writes on it in red ink the warrant for execution. The paper is then replaced, a rope loop is passed over the head of the culprit, and the end given to an assistant, who draws the head forward, so as to stretch the neck, while a second assistant holds the body from behind, and in a moment the head is severed from the body. The in- gtpvUBent is a sword made expressly for that purpose. 64 PUNISHMENT AND BEFOBMATION. It is a two-handed weapon, very heavy, and has a very broad blade. The executioners pride themselves on their dexterity in its management. After the execu- tion, the culprit's head is taken away, and generally hung up in a bamboo cage near the scene of the crime, with a label bearing the name and the offence of the criminal. Beheading was not practised in England before the year 1035. Prisoners sentenced to lose their heads had them taken off, in the Tower, upon a block, with an axe. Macaulay, in commenting upon the blundering and tragic execution of the Duke of Monmouth, says : — " Within four years the pavement of the chancel was again dis- turbed, and hard by the remains of Monmouth were laid the re- mains of Jeffreys. In truth, there is no sadder spot on the earth than that little cemetery. Death is there associated, not, as in Westminster Abbey and St. Paul's, with genius and virtue, with public veneration and imperishable renown ; not, as in our hmn- blest churches and churchyards, with everything that is most endearing in social and domestic charities; but with whatever is darkest in human nature and in human destiny, with the savage triumph of implacable enemies, with the inconstancy, the ingiati- tude, the cowardice of friends, with all the miseries of fallen greatness and of blighted fame. Thither have been carried, through successive ages, by the rude hands of jailers, without one mourner following, the bleeding relics of men who had been the captains of armies, the leaders of parties, the oracles of senates, and the ornaments of courts. Thither was borne, before the window where Jane Grey was praying, the mangled corpse of Guilford Dudley. Edward Seymour, Duke of Somerset and Protector of the Kealm, reposes there by the brother whom he murdered. There has mouldered the headless trunk of John Fisher, Cardinal of Saint Vitalis, a man worthy to have lived in a better age, and to have died in a better cause. There are laid John Dudley, Duke of Northumberland, Lord High Admiral, INTIMIDATION AND TORTURE. 55 and Thomas Cromwell, Earl of Essex, Lord High Treasurer. There, too, is another Essex, on whom natiu'e and fortune had lavished aU their bounties in vain, and whom valor, grace, genius, royal favor, popular applause, conducted to an early and ignominious doom. Not far off sleep two chiefs of the great house of Howard — Thomas, fourth Duke of Norfolk, and Philip, eleventh Earl of Arundel. Here and there, among the thick graves of unquiet and aspiring statesmen, lie more delicate suf- ferers; Margaret of Salisbury, the last of the proud name of Plantagenet, and those two fair queens who perished by the jeal- ous rage of Henry. Such was the dust with which the dust of Monmouth mingled." Sonorous and pathetic as is this passage, it makes no mention of Sir Thomas More, Sir Walter Raleigh, Algernon Sidney, Archbishop Laud, and the unfortu- nate Charles I. ; names vrhiTih, for one reason or another, interest us more than some of those with ponderous titles, vrhich the brilliant historian has selected to adorn his pages. Beheading in France has been reduced to high art, by the adoption and use of the guillotine. In its primitive form, this is a very ancient instrument of decapitation, by which Manlius, the Eoman, is said to have lost his life. There are numerous mediaeval engravings repre- senting the execution of Manlius, one of which is by Albert Diirer. It was called, in the criminal statutes of the Netherlands, in 1233, the Panke or Diele ; in France, in the fifteenth century, la doloire ; in Italy, in the sixteenth, the mannaia. Beatrice Cenci was beheaded after this fashion. Jean d'Autun, the con- temporary and biographer of Louis XII., relates that in 1607, Demetrius Giustiniani, of Genoa, for sedition, ■was condenmed to kneel upon the scaffold and lay his 66 FUNISBMEN,T AND BEFOBMATION. neck upon a block, when it was cut in two by a falling bascule, operated by a cord in the hand of the execu- tioner. At Florence, Sept. 7, 1629, by a similar device, Lorenzo Zei had his head severed from his body. The nature of the instrument is well indicated by the old German name for it, the fall-beil, or falling axe. Mar- shal Montmorency of Trance was guillotined at Toulouse, in 1652. The " gibbet of Halifax," in use before and during the Commonwealth, and last used in 1650, con- sisted of two parallel upright beams, and a transverse beam, the latter heavily weighted with lead, and having a sharp, cutting edge in the form of a chopping-knife about a foot square, attached to the lower side; this cross-beam was upheld at a height of about ten feet, by a pulley ; when the rope vas cut by the stroke of a sword, it fell upoji the victim's neck, which was securely held in place between them. Lord Morton, Regent of Scotland, having seen it, was so taken with it, that he introduced it at home, where, on the third of June, 1687, he was the first to test its efficacy in practice. For this reason, the Scotch gave it the name of the "Maiden." It is preserved in the Antiquarian Museum of Edinburgh. The guillotine is so called after its reputed inventor, Dr. Guillotin, who was, during the French Revolution, a member of the Assembly.' A motion offered by him 1 The curious reader interested in trifles may like to see the words of a song which appeared in the Actes des Apotres, a royalist journal, in which the new word was first used : — GUILLOTTN, MtolCnr POLITIQUE, Imagine un beau matin (Jue pendre est jnfturoaiB INTIMIDATION AND TORTURE. 57 to abolish the immemorial distinction in penalties for the same offences committed by the aristocracy and the common people was agreed to, Dec. 1, 1789, four months and a half after the overthrow of the Bastille. On the 25th of September, 1791, in the penal code that day adopted, it was further provided that the only mode of execution should thenceforth be by be- heading, a privilege which formerly pertained to the nobles, vulgar criminals having to put up with hanging. The motive of both these innovations was humane. Louis XVI. had already abolished preliminary torture. The Assembly put an end to all torture, and to the confiscation of estates, as well as to the practice of declaring the posterity of offenders infamous. Equally Et peu patriotique. Aussit6t II lul f aut Un supplice, Qui sans corde ni p6teau Supprime du bourreau L'office. C'est en vain que I'on publie Que c'est par la jalousie D'un supp6t Du tripot D' Hippocrate, Qui d'oGcire impun^ment M^me exclusiv^ment, Se flatte. Le Bomain Guillotin Qui 8*appr6te, Consulte gens du rattier Barnabe et Chapelier, Meme le coupe-t^te, Et sa main Fait Boudain La macbine Qui simplement nous tuera Et que Ton nommera GuiUotine. 58 PUNISBMENT AND REFORMATION. humane was tlie intention of Dr. Guillotin in the in- vention of a machine, still in use in France, by which he designed to reduce the pain of death " to a shiver," as, in his enthusiasm, he explained to his colleagues. It is an instrument substantially like a pile-driver, with grooved posts, between which a heavy axe falls with sufficient force to cut off a human head. The criminal, tightly bound, is laid with his face down- ward and his neck resting in a curved depression in the block which receives the knife; the blade strikes him from behind, and his head falls into a basket. It was first tried upon three cadavers conveyed from the hos- pital to the prison at Bicetre, in Paris, for that purpose. The son of Samson, the notorious executioner, said to his father, at this preliminary trial, that it would in- terfere with their business; to which the old man re- sponded (with prophetic vision, alas !) that it would make cutting heads off so easy, that the trade would be brisker than ever. This was on the 17th of April, 1792 ; a week later, it was set up on the Place de Grgve. Originally the blade was at right angles with the upright standards between which it moved, but the king suggested that it would work better, if set diago- nally ; and, nine months afterward, he benefited by his own suggestion. The reception of the new invention by the mercurial people of France was shocking in its levity. It was the theme of numberless songs and jests. Models of it were made in wood, in ivory, in silver, and in gold, and sold as parlor ornaments and toys for chil- dren. A somewhat fashionable closing ceremony with which to wind up a dinner in an aristocratic house was for the noble hostess to produce a figurante supposed to INTIMIDATION AND TOUTUBR 69 represent Danton, Robespierre, or Marat, and with a toy- guillotine cut off his head, when, instead of blood, a tiny stream of crimson perfume flowed from the neck, in which the ladies at the table hastened to dip their dainty lace handkerchiefs. The revolutionists, on the other hand, adopted it as a seal. Hanging is another very ancient method of execution. Haman, you remember, was hung on the gallows which he erected for Mordecai. Constantine the Great prac- tised it. In France the criminal was conveyed to the gibbet seated in a cart, with his back to the horse, his confessor at his side, and his executioner before or behind him. In this order he was taken through the crowded streets. On arrival at the place of execution, he was made to ascend a ladder leading up to the gallows ; the executioner preceded him, mounting backwards, so as to assist the prisoner. The confessor followed. After he had confessed him upon the scaffold, three ropes were at- tached to the prisoner's neck, two of them knotted, and the third intended to swing him off the ladder. The confessor then descended to the ground, leaving the culprit standing on the ladder, and the executioner upon the platform above him. The latter pushed away the ladder with his foot, swung the prisoner off, and then, horrible to relate, taking hold of the rope in order to steady himself, he jumped upon the prisoner and kicked him to death. In England, however, the cart was driven out from under, and the man's neck was broken by the fall. Executions in France are public. In England the law now requires them to be private; and in Newgate prison not even the of&cial witnesses required to certify the death see the con- 60 PUNISBMBNT AND RMFOBMATION. tortions of the expiring convict, whose body falls into a sort of well, out of sight of all but the executioner and the attending physician. When the physician an- nounces that death has taken place, the witnesses come forward, identify the corpse, and sign the necessary attestation. Drawing was a mediaeval punishment by which a man was dragged to death by horses. Brunehilda is said to have been executed in this manner. When a prisoner was drawn and quartered, he was attached to a platform facing the sky, by two iron bands, one around his chest and arms, the other around his thighs. The weapon with which he had killed his murdered victim was placed in his hand, which was filled with sulphur, tied, and the sulphur fired, so that his hand was burned off him. Next, he was torn with hooks upon the breast and legs, and a composition of melted lead, rosin, wax, and sulphur poured into the wounds. After that, ropes fastened to whippletrees were attached to his arms and legs, each rope secured by two sailor-knots, and the horses attached to the whippletrees pulled him to pieces. A paling was erected around the spot to keep off the eager, curious crowd. The mangled remains were burned in a fire. This mode of execution was reserved for offenders guilty of lese-majesty. One of the most terrible exe- cutions upon record was that of Damiens, a poor fool who attempted, it was said, to assassinate Louis XV. He pierced his side slightly with a knife. The king received the attack with courage. Damiens, when questioned as to his motive, said that he did not want to kill Louis, but to give him a warning — to prick INTIMIDATION AND TORTURE. 61 him a little, because he was a great tyrant, in order to show him what might happen. All of the parliaments of France were inyited to make suggestions as to the manner in which the assassin should be tortured. It would torture the reader to quote the many recommen- dations gravely submitted in response to this royal request. Pending a decision, in order to prevent his escape, he was tied to an iron bed. The boot was finally agreed to be the most terrible form of suffer- ing, and he was subjected to it for an hour and a half, then taken away to be drawn and quartered, but his sinews were so tough, that he was drawn for an hour, without avail, and a knife had to be used with which to quarter him, while still alive. A woman who was looking on, seeing, from the balcony where she stood, the frantic efforts of the horses to pull harder, exclaimed, " Oh, the poor horses ! " Breaking on the wheel, authorized by Francis the First in 1534, was really a way of pounding a man to death. The wheel was in the form of a cross of Saint Andrew, with four arms of equal length sloping slightly toward the point of intersection, upon which the prisoner was laid, with his face upward. Supports were nailed to the arms of the cross, so as to come half way between the shoulder and the elbow, the elbow and the wrist, the hips and the knees, and the knees and the ankles. With a heavy iron bar the upper and fore arms, the thighs and shinbones, could each be broken into three pieces. After being thus rudely disjointed, the body was bent backward, until the head and heels met, when it was attached to a wheel, with the hubs sawed off, which was rapidly revolved on a pivot, until the sufferer was re- 62 PUNISBMENT AND nEFOUMATION. lieved by death. John Cal^iii is sometimes reproached with theological asperity for having burned Servetus at the stake, as if his religious opinions had prompted that inexcusable cruelty, instead of its being a custom of the age in which Calvin lived. But, as an offset, it may be mentioned that, less than a century and a half ago, Vol- taire, who represents the opposite pole of religious thought, in one of his private letters, expresses his gratitude to God for the breaking of the priest Mala- creda upon the wheel, and in another the comfort which it was to him to hear that three Jesuits had been burned alive at Lisbon. This form of punishment was known in Greece, where it was applied to slaves. In Athens it was proposed to break Phocion. This was really a form of beating to death, accomplished by the natives of South Africa in a more primitive way, with clubs. By the law of the Twelve Tables laesa majestas was pun- ished by flogging to death. As to crucifixion, Darius is said to have crucified, on one occasion, two thousand Assyrians, and, upon another, three thousand Babylonians at once. Regulus was crucified, but not until he had been roUed down hill in a barrel driven through from the outside with iron spikes. On the cross his eyelids were removed, that his eyes might be exposed continuously to the sun. There are two modes of impaling, one by forcing a stake or spear through the prisoner's body and pinning him to the ground, the other by forcing his body upon a sharpened point. The latter is closely allied to cruci- fixion. In Siam a stake is driven longitudinally through the criminal's body, and the body is then elevated upon this stake, which is firmly driven into the ground. Sus- INTIMIDATION AND TORTITRE. 63 pension on hooks has been practised in the West Indies ; also, for abjuring the Mohammedan religion, in Algeria and in India. Strangulation, as described in Homer's " Odyssey," appears to have been by hanging. In Sparta it was effected by two executioners, who pulled at the opposite ends of a rope which encircled the victim's neck. Dif- ferent modes of execution are looked upon as more or less infamous in different countries ; in Turkey the bow- string is reserved for the nobility. In China, too, strangulation is regarded as more honorable than de- capitation. The Spanish garrote is a mode of strangu- lation, no longer accomplished, as formerly, by ropes and cords, but by enclosing the neck in an iron ring, which can be tightened from behind by a screw, which is turned until the point of it pierces the spinal column. Strangulation before burning was an act of mercy. Death by suffocation is mentioned in the Old Testa- ment ; Hazael the Syrian murdered Benhadad by dip- ping a thick cloth in water and spreading it over the king's face. Also in the Apocrypha, where it is said that Antiochus Eupator put Menelaus to death, at Berea, " as the manner is in that place." The Bereans had built a tower fifty cubits high, full of ashes, which could be stirred by some round instrument, possibly a wheel, "hanging down on every side into the ashes." Into this ash-heap Menelaus was thrown, as a punish- ment for sacrilege. Prisoners have also been suffocated by smoke, especially that given off by burning sulphur. Marshal Pelissier destroyed a force of Algerians who had taken refuge in a cave by smoking them to death. Drowning is, of course, a mode of suffocation. Jesus 64 PUNISHMENT AND REFOBMATION. Christ possibly alludes to the legal punislmieiit of drown- ing in Matthew 18 : 6. The story of the drowning of the Duke of Clarence-is thus quaintly told by Sir Thomas More in " The Pitiful Life of King Edward the Fifth." " George, Duke of Clarence, was a goodly and well-featured prince, in all things fortunate, if either his own ambition had not set him against his brother, or the envy of his enemies had not set his brother against him; for were it by the Queen or the nobles of her blood, which highly maligned the King's kindred (as women commonly, not of malice, but of nature, hate such as their hus- bands love), or were it a proud appetite of the Duke himself In- tending to be King, at the leastwise, heinous treason was laid to his charge, and finally, were he in fault, or were he faultless, at- tainted was he by Parliament, and judged to death; and there- upon hastily drowned in a butt of Malmsey within the Tower of London. Whose death King Edward (although he commanded it), when he wist it was done, piteously he bewailed and sorrow- fully repented it." The manorial pits for drowning or half drowning women, like the manorial gibbets for hanging men, were highly prized prerogatives of the early English nobility. Burying is the terrene equivalent of drowning. When the Third Crusade started from Europe for the Holy Land, certain rules for the government of its members were adopted, and it was announced that their violation would be punished, if at sea, by throwing the offender into the water, but if on land, by interring him alive. In Rome vestal virgins guilty of a breach of the vow of chastity were thus buried. Sefi, the eighth Shah of Persia, whose name is a synonym for cruelty, believing that an unsuccessful at- tempt had been made to poison him, buried forty of the women of his seraglio, including his mother. Tacitus INTIMIDATION AND TOBTUEE. 65 records the fact that lewd women were buried alive, by the Gauls, in swamps. Jews were buried by Pepin of France. In some parts of Germany, even since the be- ginning of the present century, this was the penalty for infanticide. In 1347, two counterfeiters were boiled alive at Paris. This penalty for counterfeiting was in force in the, six- teenth century. The boiling was sometimes done in oil. French law tolerated it until 1791, though it had long fallen into practical disuse. Under Henry VIII., of England, poisoning was for ten years regarded by law as treason, and it was punishable in this manner. The Bishop of Rochester's cook, a man named Eose, was publicly boiled at Smithfield, in 1630, for throwing poi- son into the yeast-tub in the kitchen of the episcopal palace. His occupation may have suggested the mode of his death. Stoning, common among the ancient Hebrews, was re- garded by them as the most infamous of punishments, and for this reason, apparently, it was denounced against idolatry. The execution took place outside of the camp or city, and the witnesses were required to throw the first stone, but all the people took part in the ceremony, .ffischylus was condemned to suffer death by stoning for having written a tragedy which was thought to be irrev- erent, but the sentence was not executed. Among the Romans this was a military punishment. Stoning was forbidden by Constantine. A law of jEthelstan, in the tenth century, prescribed it as the punishment of male slaves for theft ; the thief was stoned by eighty fellow- slaves, and if any of them missed the mark three times, he was thrice whipped, 66 PUNISHMENT AND REFORMATION. Pressing to death was a mode of execution known to the Carthaginians. The instrument of torture known as the scavenger's daughter, in use in the Tower of Lon- don, will be described below, under "Torture." The judgment of penance, referred to at the close of the last chapter, was in these words : " That you be taken back to the prison whence you came, to a low dungeon into which no light can enter ; that you be laid on your back on the bare floor, with a cloth around your loins, but elsewhere naked ; that there be set upon your body a weight of iron as great as you can bear — and greater ; that you have no sustenance, save, on the first day three morsels of the coarsest bread, on the second day three draughts of stagnant water from the pool nearest to the prison door, on the third day again three morsels of bread as before, and such bread and such water alter- nately from day to day until you die." Among the punishments mentioned in the Epistle to the Hebrews is sawing asunder, or " dichotomy," which is the penalty for horse-stealing in Tartary, for poisoning in Persia, and was formerly, with obvious fitness, in- flicted for bigamy in Switzerland. The bodoveresta, pre- scribed by Zoroaster, the Persian lawgiver, against in- competent physicians and mothers who killed their off- spring, was very similar to the Chinese penalty entitled ling-chee or " cutting into a thousand pieces," while still alive. Compare with the horrible torture just mentioned the sentence pronounced, in the reign of Edward the Second, against the Earl of Carlisle, for high treason : " The award of the court is that you be drawn, and hanged, and beheaded; that your heart, and bowels, and entrails, INTIMIDATION AND TORTURE. 67 whence came your traitorous thoughts, be torn out, and burnt to ashes, and that the ashes be scattered to the winds ; that your body be cut into four quarters, and that one of them be hanged upon the Tower of Carlisle, an- other upon the Tower of Newcastle, a third upon the Bridge of York, and the fourth at Shrewsbury ; and that your head be set upon London Bridge, for an example to others that they may never presume to be guilty of such treason as yours against their liege lord." Precipitation from a height, another of the punish- ments forbidden by Constantine, was the form of death inflicted upon iEsop, the writer of fables. Pygmalion, King of Tyre, visited it upon two priests guilty of hav- ing eaten the flesh of human sacrifices. In the history of the Maccabees it is written that Jewish mothers, with their infants in their arms, were thrown from the walls of Jerusalem. The Tarpeian rock at Rome was a place set apart for this mode of execution, chiefly practised upon slaves guilty of theft. The Carthaginian general, Hasdrubal, before throw- ing his Roman prisoners from a rock, flayed them alive. Excoriation is named as a penalty in the laws of Henry the First of England. The general reader will observe occasional references in historical and other works to the ancient practice of nailing up human skins where they could be seen by the public, and the minds of those pre- disposed to crime be stricken with terror at the hideous spectacle. Deserters from the army are, since the invention of fire-arms, usually shot to death. The fact is perhaps not generally known that, in some at least of the Western territories, convicts sentenced to endure capital punish- 68 PUNISHMENT AND BEFOBMATION. ment are given their choice whether they will be hung or shot. The author was shown, in a territorial prison, the location of the convict against the wall, and the spot where the tent is pitched in which the armed guards are concealed; to one or more of them are given guns loaded with blank cartridges. The spot where the Paris communists shot Archbishop Darboy, within prison walls, is shown to visitors, and excites much interest ; the marks made by the bullets are still visi- ble. The ancient equivalent form of death was by piercing the victims with javelins, which was also a military punishment. Prisoners have sometimes been starved to death, either, by withholding from them all food, or by feed- ing them on bread and water, or other provisions known to be inadequate to sustain life. The Athenians forced Socrates, Phocion, and many others, to drink a poisonous decoction, and so to end their own lives. Years afterwards, statues were erected to both these heroes ; and the remains of Phocion were brought back from Megara and interred in Athens, at the expense of the public treasury. Somewhat similar was the ancient Moslem punish- ment for wine-drinking, namely, pouring melted lead down the offender's throat. Daniel was thrown, by Darius the Mede, into a den of lions. In Siam prisoners are sometimes thrown to crocodiles. The Roman arena was the place of mar- tyrdom of thousands of the early Christians; the re- mains of Roman amphitheatres may still be traced in Great Britain. In China faithless wives are given to elephants to be by them trampled uud^j fpot, Thig INTIMIDATION AND TORTURE. 69 was the mode of punishment of deserters adopted by Hamilcar, the Carthaginian general. Criminals have also been thrown into dens of ser- pents, or tied down in forests where it was certain that they would be bitten by serpents. The Eoman penalty for parricide at one time consisted in sewing up the rebellious child in a leather sack, together with a live serpent, a cock, and a goat, and throwing the sack and its contents into the sea. Plutarch, in his memoir of Artaxerxes, describes one of the most terrible of all recorded punishments, which was inflicted upon Mithridates, by order of the Persian monarch, for boasting, when overcome with wine, that he, and not Artaxerxes, had in truth slain the mighty Cyrus. He was encased in a coffin-like box, from which his head, hands, and feet protruded, through holes made for that purpose ; he was fed with milk and honey, which he was forced to take, and his face was smeared with the same mixture ; he was exposed to the sun, and in this state he remained for seventeen days, until he had been devoured alive by insects and vermin, which swarmed about him and bred within him. Barbarous as are these tales of cruelty and hatred, was the blowing of the sepoys from the mouths of British cannon in India any less shocking ? Many travellers have seen, in the torture chamber at Nuremberg, the figure of a woman constructed in such a manner as to embrace a victim thrust into her arms, and pierce him to death with knives. A similar instrument was invented by Nabis, a Spartan tyrant, who named it the Apega, after his wife. 70 PUNISHMENT AND BEFOBMATION. SBCONDABY PUNISHMENTS. Mutilation of the body is an ancient penalty known to the Egyptians, who cut out the tongues of those who be- trayed the secrets of the state, and cut off the hands of forgers and counterfeiters, with an apparent purpose in both cases to make the punishment fit the crime, and, at the same time, effectually to prevent its repetition ; the Egyptian penalty for rape was of a similar nature. When Judah and Simeon cut off the thumbs and great toes of Adoni-bezek, he said, " Threescore and ten kings, having their thumbs and their great toes cut off, gathered their meat under my table : as I have done, so God hath re- quited me." The Philistines, before setting Samson to grind in the prison, put out his eyes. Mutilation was com- mon among the Persians. Eight hundred Greek captives presented themselves before the victorious Alexander, with a petition that he would avenge their wrongs : some of them had lost their hands, others their feet, others their noses and their ears ; their faces had then been marked with hot irons, and in that pitiful condi- tion they had been delivered to the scorn of the Persian people. The Emperor Constantine forbade this practice, characterizing it as one of " the cruelties of the ruthless barbarians." A law of Canute, the Danish king of England, evidently designed to provide a humane sub- stitute for capital punishment, ordained : " Let his [the offender's] hands be cut off, or his feet, or both, accord- ing as the deed may be. And if he have wrought yet greater wrong, then let his eyes be put out and his nose and his ears and his upper lip be cut off, or let him be scalped, whichever of these shall counsel those whose INTIMIDATION AND TOBTUBM. 71 duty it is to counsel thereupon, so that punishment be inflicted, and also the soul preserved." Mr. Pike says that William the Conqueror or his council " enunciated the principle that malefactors so debased as those of England should not suffer death, because it was better that they should, as cripples, serve for a warning to the ill-disposed," but that the Synod of London, in 1075, under Lanfranc, the wise and gentle Italian archbishop of Canterbury, expressed disapproval of this maxim. Under Henry I., " the chief moneyers throughout the whole of England were convicted of making pence in which there was base metal illegally alloyed with the silver. By the king's command they were all brought to Winchester, and there suffered in one day the loss of their right hands and of their manhood." The spectacle of maimed offenders at large did not have the deterrent effect expected of it; on the contrary, it provoked imitation. "The brutalizing effect which it had upon the whole population can hardly be conceived, in this modern age of refinement. In the midst of the general lawlessness every man was, when ie had the power, a law unto himself, and inflicted upon his enemy the punishment which the law of the land destined for the evil doer. Maiming, that is to say, depriving a human being of a member, was consequently one of the commonest of offences — for which the law provided a wholly inadequate remedy in the appeal of mayhem." Mayhem was a simple trespass until the reign of Henry IV., who "assented to a statute which, for the first time, declared that it was a felony to cut out the tongue or put out the eyes of the king's subjects, of malice aforethought. It was not, for many a generation 72 PUNISHMENT AND REFORMATION. afterwards, a felony to slit the nose, to cut off the nose or lip, or to cut off or disable any of the limbs." Not until the passage of the " Coventry Act " in the reign of Charles II., was all mayhem made felonious. Mr. Pike, from whom the foregoing quotations are taken, gives the following highly pictorial description of the cere- monial attending the loss of the right hand, under Henry VIII. : — " For merely striking, so as to shed blood, the loss of the right hand was the penalty, as it had been for many crimes before the Conquest. The offender, as in cases of murder in the court, was tried before the Lord Great Master, or the Lord Steward of the Household, and when found guilty, suffered according to a most remarkable and carefully devised ceremony. He was brought in by the Marshal, and every stage of the proceedings was under the direction of some member of the royal household. The first whose services were required was the Serjeant of the Woodyard, who brought in a block and cord, and bound the condemned hand in a convenient position. The Master Cook was there with a dressing knife, which he handed to the Serjeant of the Larder, who adjusted it and held it ' till execution was done.' The Serjeant of the Poultry was close by with a cock, which was to have its head cut off on the block by the knife used for the ampu- tation of the hand, and the body of which was afterwards to be used to ' wrap about the stump.' The Yeoman of the Scul- lery stood near, watching a fire of coals, and the Serjeant Farrier at his elbow to deliver the searing-irons to the surgeon. The Chief Surgeon seared the stump, and the Groom of the Salcery held vinegar and cold water, to be used, perhaps if the patient should faint. The Serjeant of the Ewry and the Yeoman of the Chandry attended with basin, cloths, and towels for the surgeon's use. After the hand had been struck off and the stimip seared, the Serjeant of the Pantry offered bread, and the Serjeant of the Cellar offered a pot of red wine, of which the sufferer was to par- take with what appetite he might." The following account of the case of William Prynne, INTlMIDATtOJf AND tOMVtlS. TS a barrister of Lincoln's Inn, in the time of Charles I., is borrowed from Hallam : — "Prynne, a lawyer of uncommon erudition, and a zealous puri- tan, had printed a bulky volume, called ' Histriomastix,' full of invectives against the theatre, which he sustained by a profusion of learning. In the course of this he adverted to the appearance of courtesans on the Boman stage, and by a satirical reference in his index (women actors notorious whores), seemed to range all female actors in, this class. The Queen, unfortunately, six weeks after the publication of Prynne' s book, had performed a part in a mask at Court. Prynne was already obnoxious, and the Star Chamber adjudged him to stand twice in the pillory, to be branded in the forehead, to lose both his ears, to pay a fine of £5,000, and to suffer perpetual imprisonment." Timothy Penredd, who was in 1570 convicted of counterfeiting the seal of the court of Queen's Bench, and forging writs of arrest, was sentenced to be placed in the pillory in Cheapside, on two successive market- days, with one ear nailed each day to the post, in such a manner that he would have to tear it off to get away.* Louis XV. of France placarded the camp at Com- pi^gne in 1765 with the announcement, that any soldier 1 James Howell, in his "Familiar Letters," written in the first half of the seventeenth century, relates an anecdote which well il- lustrates the general fear of this form of mutilation. He says : " As I remember, some years since there was a very abusive satire in verse brought to our King ; and, as the passages were a reading before him, he often said, ' That if there were no more men in England, the rogue should hang for it.' At last, being come to the conclusion, which was (after all his railing), — ' Now God preserve the King, the Queen, the peers, And grant the Author long may wear his ears ; ' this pleased his Majesty so well, that he broke into a laughter, and said, ' By my soul, so thou shalt, for me. Thou art a bitter, but thou art a witty knave ! ' " 74 PXINISBMSNT AND BEPORMATION. who should blaspheme the name of God, the Virgin, or any of the saints, should have his tongue pierced with a hot iron. Another form of disgraceful marking was by brand- ing. In Athens, slaves were branded with the names of their masters ; soldiers, with those of their generals. The Athenians branded their prisoners of war. In the war with Samos, the Samians, having gained a victory, retaliated by branding their captive 'adversaries with an owl, the bird sacred to Minerva, with the effigy of which the coins of Athens were stamped. Under Roman law the brand was placed upon the forehead; but Constantine, who was a humane ruler, and intro- duced many reforms in criminal jurisprudence, ordained that it should be upon the hand or leg, in order that it might' be less, conspicuous. In France, the shoulder was the spot selected. The ancient brand was the fieur- de-lis, the royal emblem ; but afterward it was the initial of the crime committed, as " V " for voleur (thief). That the mark made by the branding-iron might be plainer and more permanent, the skin was first scraped, so as to insure the burning of the blood which collected on the surface of the wound. The English brutality in this, as in many other forms of punishment, is shown in the treatment of the Patarines, a heretical sect of the twelfth century, whose foreheads were seared with a hot iron. They were publicly whipped, and every Eng- lishman was forbidden to give them food or shelter, so that they perished of cold and hunger. Under Edward VI. it was ordered that vagabonds should be branded " V." A vagabond thus marked was to be ad- judged the slave, for two years, of any one who would INTIMIDATION AND TOBTUHE. 75 take him. If lie ran away, he was to be branded " S," and adjudged a slave for life; if he ran away again, he was to be hanged. If no one would take him, he was to be branded " V " upon the breast, and sent to his native place, there to be compelled to labor upon the highways, or at other public work, or as a common slave from man to man. If he misrepresented the place of his birth, he was to be branded in the face. Brawlers in churchyards were branded " F " on the cheek. During several generations, persons who had taken benefit of clergy were burned on the brawn of the thumb with the initial of the offence with which they were charged, in order that they might not plead clergy a second time ; but in 1698 such persons were, by a new statute (which was repealed eight years later) directed to be burned in the left cheek. Persons having in possession filings or clippings of current coin were branded " R " on the right cheek. Branding was abolished in England under George III. Flogging was authorized by the Mosaic code. "The judge shall cause him to lie down, and to be beaten be- fore his face, according to his fault, by a certain number. Forty stripes he may give him, and not exceed ; lest if he should exceed, and beat him above these with many stripes, then thy brother should seem vile unto thee." Under Roman law, a freeman could not be beaten with stripes; yet flogging was authorized as a punishment for aggravated theft ; but the thief had first to be de- clared servus pmnae, — the slave of the penalty. Paul's indignant protest, "They have beaten us openly, un- condemned, being Romans," will here recur to many readers. This was also a punishment under Anglo- 76 PUmSHMSNT AND heformation. Saxon law. Petty thieves were flogged in the reign of George III. ; men in public, women in private. Whip- ping for common law misdemeanors has never been for- mally abolished, though it is not administered where it is not authorized by statute. The lash is now regarded less as a retributive penalty than as a means of enfor- cing discipline. Some persons have confidence in its deterrent influence, approve of the retention of the whip- ping-post in Delaware, and advocate the enactment of laws reviving it elsewhere for certain offences, especially for wife-beating. As to this point, the following observa- tions of Mr. Pike are well worthy of consideration : — " There is, no doubt, a dramatic fitness in punishing the de- liberate infliction of bodily pain by the deliberate infliction of bodily pain in return. And if the maxim ' An eye for an eye and a tooth for a tooth ' is a proper guide for lawgivers in a Christian country in the nineteenth century, there remains nothing more to be said, except that the ' cat ' is, in many cases, too merciful an instrument. If, however, the object of punishment is not vengeance, but the prevention of breaches of the law, it seems useless, so far as example is concerned, to flog a prisoner within the prison walls. The whole power of such a deterrent as flog- ging (if it is to be regarded as a general deterrent) must be in the vividness with which it can be presented to the imagination of persons who have a tendency to commit, but who have not yet committed, the offences for which flogging may be legally in- flicted. But the most ready manner of bringing it home to the mind of the populace is by exhibiting it in public, which, as has already been shown, has the very opposite effect from that which is desired. The fact that the lash has been administered to a convict is now and again brought to the knowledge of the public by the press, and sometimes with the aid of illustrations. But the impressions made, so to speak, by such exhibition at second-hand, cannot be so forcible as that made by the old form of exhibition at first-hand; and in proportion as it becomes effectual at all, it INTIMIDATION AND TORTURE. 77 must be attended by the effects which are produced by all brutal punishments inflicted coram populo. It is far from an agreeable task to watch the face and figure of the flogger as he executes the sentence ; and few would deny that the moral effect upon him must be as great as upon the criminal, whom it is his duty to whip. The state, when it sanctions the use of the lash, causes a human being to do just such an act of violence as it desires to check; It must either recognize the use of the 'cat' as an art of which it is prepared to employ the professors, or It must, on each particular occasion, offer a reward to some one to come Into prison and commit a violent assault. It follows, therefore, that even if every criminal who is flogged Is deterred from re- peating his offence, the gain, small as It Is, has been purchased at a very high price — indeed, at the expense of consistency." The knut and the bastinado are savage forms of flog- ging. The knut in Russia has been abolished, but its place has been taken by the plet, a sort of heavy cat. The status of a prisoner is in many respects analogous to that of a slave. War may be carried on in the open field, vi et armis, or it may be reduced to a purely legal contest in the courts,. In either case the vanquished party has to bear the costs and the consequences. From the condition of a prisoner of war to that of a slave is but a step; why should the condition of a convict be exempt from the liabilities incident to a captive in bat- tle ? The conqueror can dispose of the conquered at his pleasure. Compulsory labor is therefore a natural sequel of the condition of servitude, whether military or penal. The Israelites in Egypt were neither con- victs nor captives, yet Pharaoh set them to making brick under cruel taskmasters. To be sent to the mines was the severest of Egypt an penalties, except that of death. Mines and quarries were worked by convicts in Greece and in Rome. The conquered Lesbians were 78 PUNISHMENT AND REFORMATION. compelled to dig deep ditches around the walls of Samos. Sabacos substituted for the penalty of death, compulsory labor for life. Sesostris made prisoners of war dig canals and haul stones for the construction of the temples. Prisoners of war were by the Athenians compelled to serve as rowers in vessels of war. This is perhaps the first indication in history of the use of the galleys for punishment, which ia the Middle Ages was so common, that countries without seacoast of their own sold prisoners to countries which had. Venice was naturally a principal buyer in this unique slave-market. Maria Theresa, that noble woman who put an end to so many of the barbarities prevalent before her day, has the honor of having, in 1762, forbidden' this practice also. A modified form of slavery survives wherever prison labor is sold to private persons for their pecu- niary profit. Interdiction and civic degradation are other incidents of the loss of personal liberty. In modern times and in civilized nations they go no farther than the tem- porary or permanent denial to a convict of his proper rank, or of the right to vote, to hold oiSoe, to serve on a jury, to carry arms, and (in Prance) to wear a decora- tion, or be employed as a teacher. But, as in the case of the Patarines cited above, the denial might extend to rights essential to the preservation of life. In the early history of Rome, a citizen might be interdicted the use of fire and water. The purpose of this was to compel him to exile himself, since he could not legally be ban- ished. Draco, the Athenian lawgiver, excluded murder- ers from the temples, the games, from public banquets and assemblies. The bills of attainder for treason with INTIMIDATION AND TOSTUBE. 79 which the records- of the English Parliament are stained (of which there was probably not one which was not the offspring of partisan hatred) worked corruption of blood, the effect of which was that descent could not be traced through the person whose blood was corrupted ; and thus the innocent offspring of men guilty of none but politi- cal crimes were deprived of the hereditary right to their ancestral estates. Attainder and corruption of blood followed sentence of death in all cases of treason or felony. But Parliament could try alleged offenders in their absence, and condemn them upon any evidence which they chose to accept as suflftcient. The great Act of Attainder passed by the Irish Commons, to which James II. attached his signature, contained between two and three thousand names, at the top of which was half the peerage of Ireland. Macaulay says of it, that " Any member who wished to rid himself of a creditor, a rival, a private enemy, gave in the name to the clerk at the table, and it was generally inserted without discussion." Even dead men were attainted ; Oliver Cromwell, for instance. Parliament resolved, under Charles I., in 1660, that "the carcasses of Oliver Cromwell, Ireton, Bradshaw, and Pride should be taken up, drawn on a hurdle to Tyburn, and there hanged up in their coffins for some time, and after that buried under the gallows." The confiscation of estates was not merely an act of manifest injustice to heirs, living and yet unborn, but an obvious inducement to judicial murder. Men ac- cused and convicted of treason, by their rivals for royal favor, were robbed of their property for the enrich- ment of their political enemies. The same result was reached by the heavy fines imposed by the Star Cham- 80 PUmsBMENT AND RBVOUMATION. ber, wliere, as Hallam says, "Those who inflicted the punishment reaped the gain, and sat, like famished birds of prey, with keen eyes and bended talons, eager to supply for a moment, by some wretch's ruin, the craving emptiness of the exchequer." He further ob- serves that "The strong interest of the court in these fines must not only have had a tendency to aggravate the punishment, but to induce sentences of condemna^ tion on inadequate proof." Under the feudal system, escheats to the crown constituted a large portion of the revenues of the Norman kings of England. Whatever else may be said of feudalism, it was a gigantic scheme of extortion in return for very imperfect protection, by which the powerful and the rapacious built up their for- tunes at the expense of their dependants ; and the king was the chief extortioner, against whose demands not even the grand seigneurs could protect themselves. Thus the system contained within itself the providential seed of its own destruction. The rapacious of our time rob their victims by other methods, but their ultimate overthrow is probably involved in the very audacity of the means by which their temporary power to despoil their fellowmen has been attained. Closely connected with civic degradation were the insults heaped upon oifenders, in their public exposure both before and after death. The pillory and the stocks are the forms of exposure best known to us, and need no description. The continental equivalent for them was the caroan, a ring closed by a lock, by means of which a criminal was attached by the neck to a chain, and so fastened to a post. This is the Latin echo of an ancient Persian device ; namely, an acute triangle, in the INTIMIDATION AND TORTURE. 81 narrow angle of which the prisoner's neck was confined, while his hands were extended and attached to the op- posite side ; in this position he could walk about. The special objection to the pillory and the carcan was that the populace had the right to pelt victims thus exposed with decayed eggs and fruit, which was unpleasant, and with stones, which was dangerous. The carcan was abolished in France in 1832, and the pillory in England in 1837. The Spanish mantle (of which there is an engraving in John Howard's book) was a cask, with holes cut through the sides for the prisoner's arms, and through the top for his head ; he wore it like a coat, and in this ridiculous costume was marched around the town at a cart's tail. Scolds were formerly ducked in a pond by means of a ducking-stool, of which there were various patterns, the essential thing being a seat, to which the woman was strapped, at the end of a long lever operated from the bank, to the rude delight of the spectators.^ 1 In "The Little Manx Nation," by Hall Caine, a tale is told of Bishop Thomas Wilson, " half angel, only half man, the serenest of taints and yet almost the bitterest of tyrants." Katherine Kinrade was a poor ruin of a woman, who, being mentally defective, gave birth in succession to three illegitimate children. For the first, the Bishop made her do penance in a white sheet at the church doors. For the second, he committed her for twenty-one days to his prison at the Peel. " It is a crypt of the cathedral church. You enter it by a little door in the choir, leading to a tortuous flight of steep steps going down. It is a chamber out out of the rock of the little island, dark, damp, and noisome. A small aperture lets in the light, as well as the sound of the sea beating on the rocks below. The roof, if you could see It in the gloom, is groined and ribbed, and above it is the mould of many graves, for in the old days bodies were buried in the choir." The third time, he ordered her to be dragged through the sea by a rope tied to the stern of a boat, " After undergoing the 82 PUNISHMENT AND REFORMATION. They were also forced to -wear the brank, which was a cage-like helmet or mask of iron, with a triangular piece entering the mouth and pressing upon the tongue, as a delicate reminder of the proper use of that unruly mem- ber. In the Middle Ages a favorite punishment for adulteresses was to scourge them naked through the streets. There were many ways of exposing the dead to derision. Sometimes their bodies were thrown into the streets to be devoured by dogs. Oftener their heads were elevated upon poles. The head of the un- fortunate Princess of Lamballe, the favorite of Marie Antoinette, was carried by a mob about the streets of Paris, placed on the counter of a cabaret, where wine was poured down the throat, and the Queen was loudly punishment the miserable soul was apparently penitent, ' according to her capacity,' took the communion, and was 'received into the peace of the church.' Poor human ruin, defaced image of a woman, begrimed and buried soul, unchaste, misshapen, incorrigible, no ' juice of God's distilling ' ever ' dropped into the core of her life ; ' to such punishment was she doomed by the tribunal of that saintly man. Bishop Thomas Wilson! She has met him at another tribunal since then; not where she has crouched before him, but where she has stood by his side. She has carried her account against him to Him before whom the proudest are as chaff. " None spake, when Wilson stood before The Throne ; And He that sat thereon Spake not ; and all the presence-floor Burnt deep with blushes, and the angels cast Their faces downwards. — Then, at last, Awe-stricken, he was ware How on the emerald stair A woman sat divinely clothed in white. And at her knees four cherubs bright That laid Their heads within her lap. Then, trembling, he essayed To speak — ' Christ's mother, pity me ! * Then answered she, ' Sir, I am Katherine Kinrade.' " INTIMIDATION AND TORTURE. 83 called to the window of her cell in the Temple to gaze with horror upon the bloody spectacle, but was humanely prevented from responding to the call. Exposure in chains after death was once common. Bunyan saw, in his dream, Simple, Sloth, and Presumption "hanged up in irons a little way off on the other side." These irons were frames rudely corresponding to the shape of the body, so contrived as to hold it until decompo- sition was complete, and only the skeleton remained l)leaching in the sun.^ The last man to hang in Eng- 1 The following description of chains still preserved at Eye, Bngland, is borrowed from Notes and Queries, (sixth series, v. 8, p. 183) . "To begin at the top, we have a swivel loop. This is obviously for giving a rotatory as well as a swinging motion to the carcass. This swivel is fixed into a frame formed of two pieces of hoop iron bent over, like the wooden frame of a funeral garland, and of suflS- cient depth to reach from the top of a man's head to his shoulders ; the four ends are then riveted into a band encircling his neck. At opposite sides coarse chains are riveted on to the neck band and descend on either side, with four links, to about the middle of the chest. A second and much larger band is then passed through the fifth link and riveted in front. Then come three more links in the same continuous chains, and a third band, which, passing through a fourth link. Is similarly riveted in front. The chains continue with three more links, a band is passed through a fourth and final link, and, being riveted in front like the others, nearly completes the framework for the body. At the back a strip of iron starts from the neck band and, bifurcating above the shoulders, descends in parallel lines; it is successively riveted to the three body bands, and being again tinited into a single strip, ends in a loop immediately below the bottom hoop. Thus the body framing is rendered rigid and complete. Suspended by a chain from the loop behind, and from the lowest band in front, are separate frames for the legs, consisting of circular bands of different sizes for the knees and ankles, connected by vertical side strips riveted to them. These leg frames are so arranged, with extra length in the side pieces, that they can be taken up or let down, according to the length of the legs of a body within the chains. It should also be noted that the body bands are punched with holes, like a leather strap, so that they can be tightened or let out, according 84 PUNISHMENT AND REFORMATION. land was a bookbinder named Cook, in 1834, at Leices- ter. That year, by William IV., hanging in chains was forbidden. A singular tale is related by Pljitarch of the beneficial effect of exposure in Ionia, where an epi- demic of suicide on the part of young girls was stopped by the passage of a law, directing the dead bodies of those who perished by their own hand to be hung naked on the public gallows ; the fear of infamy proved stronger than the fear of death. * It remains only to mention exile, which is essentially an alternative for the death sentence, and has the same effect, so far as the community which desires to rid itself of a culprit is in question. Banishment may, however, be temporary or for life. It may also be compulsory, or, by a legal fiction, it may be voluntary, the criminal being liable to execution if he remains at home. It was by this subterfuge that transportation was instituted, as we shall see in a subsequent chapter. Transportation always involves the dilemma that the persons exiled are either good or bad citizens ; if good, they are a loss to their native country ; but if bad, that to the size required. This seems to indicate that the same chains were used over and over again , but that it was necessary, for other reasons, that the chains should fit." Another correspondent of the same periodical thinks that the iii'st instance of an executed person hanging in chains must have been in 1381, and he quotes Sir H. Chauucey's "Hist. Antiq. of Hertford- shire : " " Soon after the King came to Easthamsted, to recreate himself with hunting, where he heard that the Bodies which were hanged here were taken down from the Gallowes and removed a great way from the same ; this so incensed the King, that he sent a writ, tested the 3d of August, Anno 1381, to the Bailiffs of this Borrough, command- ing them upon sight thereof to cause chains to be made, and to hang tile Bodies in them upon the Siime Giillowes, there to remain so long as one Piece might stick to another, according to the Judgment." INTIMIDATION AND TORTUBE. 85 country has no right to impose the burden of their presence upon an unwilling community. Every com- munity is unwilling, which has reached a stage of de- velopment at which it is self-sustaining without convict labor. The Romans divided banishment into deporta- tion and relegation ; deportation was exile to a place specified, from which the banished were not allowed to depart ; but relegation was simple exile, and did not in- volve loss of citizenship. A form of banishment called ostracism (from the Greek word for a shell, because shells were used for balloting) existed at Athens, to which Aristides, Alcibiades, Themistocles, Xenophon, Thucydides, and Demosthenes were subjected. It was inflicted by popular suffrage at a special election, at which not less than six thousand votes must be cast, of which a majority must be in favor of the exile of the candidate from Athens for a period of ten years. Ostracism did not involve the confiscation of the exile's estate, as the ordinary form of banishment did. Outlawry may also be regarded as a sub-variety of exile. The mind dislikes to dwell upon acts of violence, such as have been described in this dark chapter of human nature at its worst. It is necessary, however, to know from what we have been delivered, in order to appre- ciate what we enjoy ; and what has been tried and failed, in order to realize the folly of repeating useless experiments. It may seem to the young and inexperi- enced reader that human nature has changed and is no longer what it was, when these outrages were perpe- trated in the name of law and of religion. It is, alas, not true, as the veterans of our own Civil War could 86 PUNISHMENT AND REFORMATION. testify, or the residents upon or near the theatre of the conflict, if they chose to do so. And yet the self- restraint of both the great armies therein engaged is the pride of every American, one of the wonders of his- tory, and a tribute to the ethical influence of democratic institutions. Our social and political relations have changed, and therein is the secret of the growth of a humane and brotherly feeling among men, which is reflected in our laws and in their administration. The great lesson to be derived from the contemplation of the past is the obligation to vigilance and exertion, in order that what has been won at such fearful cost may not, at the dictation of civil or ecclesiastical tyrants, be wrested from our grasp. Among the victories to which allusion is here made must be accounted the inclusion in the French Declarar tion of Rights (1789), of the statement that "the right to punish is limited by the law of necessity ; " also the declaration by the Revolutionary Assembly in 1791, that " penalties should be proportioned to the crimes for which they are inflicted, and that they are intended, not merely to punish, but to reform the culprit.'' That Assembly relegated to oblivion the antiquated notion that imprisonment was merely a preventive measure, by which the prisoner was to be securely held until he could be suitably punished ; and it substituted for it the principle that imprisonment, in varying forms and de- grees, is itself a penalty of crime.^ It therefore dis- 1 " The Ordinance of Louis XIV., August, 1670, is the latest crimi- nal code prior to the Revolution of 1789. The only penalties then permitted (and which are mentioned in the Ordinance) were: (1) Death ; (2) torture ; (3) the galleys for life, or for a t§rm of yeaisj INTIMIDATION AND TOSTUBE. 87 pensed with all the corporal punishments which the Monarchy had cherished and so fearftdly abused. Credit must also be given it for having been the first governmental body to recognize police surveillance with- out imprisonment, as an adequate remedy, in many cases, for social disorder. TOBTUKE. The real use of torture was not to punish a criminal, though it was sometimes employed for that purpose. (The Julian law, for instance, prescribed it for lese- majesty). It was intended, first, to extort from a per- son accused a confession of guilt, and second, to force him to disclose the names of his accomplices. It was (4) banishment for life, or for a specified term ; (5) flogging; (6) the amende honorable ; (7) reprimand. Besides these principal penalties there were others which were accessoiy, such as branding, the car- can, the pillory, dragging in the mud, and confiscation ; also lighter punishments, like fines, etc. But nowhere is imprisonment men- tioned in the light of a punishment; never was it so inflicted. The prison was simply a place where the accused was held for trial, and convicts were held until the execution of sentence. The Constituent Assembly adopted imprisonment as the principal, though not the sole, basis of the criminal code. It made of this form of punishment, which was never to be for life, a new feature in criminal jurisprudence. It created the penitentiary system in France; that is, a system founded upon the amendment and rehabilitation of the prisoner. In the pen- alty of la gene (absolute solitude), authorized by the 14th section of the Code, may be seen the germ of "solitary confinement" practised, later, at Philadelphia. The National Convention made but slight chauges in the Code. The Empire, however, overthrew it bodily, by re-establishing imprisonment for life, confiscation, and branding, and by replacing la t/ene by relegation or exile. The Code of 1810, never- theless, contains a more advanced provision than does the Code of 1791, in giving to judges discretionary power to determine the dura^ tion of sentence within minimum and maximum limits. It also con- tains a provision for the surveillance of discharged convicts, which did not pcgnr to the Assembly or t&? Convention." — Moreau-Christophe, 88 PUNISHMENT AND BEFORMATION. an incident in judicial procedure. The theory of its advocates was that the knowledge of one's own guilt is guilty knowledge, and to compel him to give it up was only an act of justice ; while any evidence which he might have in his possession touching the misdeeds of others was the property of the state, which it had the right to recover by any and all means at its command. This is indicated by the Latin word for torture, qucestio ; and even the English word in its etymological deriva- tion suggests the same thought — torture is the twist- ing (torsion) from its subject of his guilty secrets. Tiaces of this theory survive in the French practice of interrogation of the accused by the judge. English law is more humane, since it admits the right of the accused to refuse to answer questions which tend to his incrimination ; but there is reason to believe that what the courts are forbidden to do, the police, espe- cially the detective branch of it, does not scruple to attempt, in the United States, without warrant of law. Like flogging and other corporal chastisements, tor- ture was originally applicable exclusively to slaves. A slave had no rights superior to those of a military cap- tive. Parrhasius, when about to paint his picture of " Prometheus Bound," purchased a captive, whom he sub- jected to torture, in order that he might the better serve as a model, by his contortions and facial expression. A story is told of a Eoman noble, whose lampreys were greatly praised at a dinner given by him ; he explained that they had been fed on the flesh of slaves, killed and thrown into the water for that purpose. The testimony of a slave was valueless in Eome and in Athens, unless extracted from him by torture, Paul escaped scourging, INTIMIDATION AND TORTURE. 89 to make him confess his crimes, at the hands of the chief captain in Jerusalem, only because he could substantiate his claim to be a freeborn Roman citizen. Torture is an institution at least as old as Egypt. A passage in the book of Esther makes it probable that it was in use in ancient Persia. Moses forbade it, in the injunction that no proof of guilt should be accepted by the Hebrew courts, except the concurrent testimony of two witnesses. But it was practised in Greece. A re- script of the Emperor Augustus authorized it in Rome, on the express ground that it was useful as an agency for the discovery of truth, ad veritatem requirendam. Tacitus relates an anecdote of Tiberius worth repro- duction here. A nephew of Pompey was accused of magic, but protested his innocence. With a view to ascertaining the fact, his accusers demanded that his slaves, who were familiar with his habits, should be put to the question, in order to induce them to tell what they knew. A Roman law, however, forbade the testifying of slaves against their master. Thereupon the Emperor freed these slaves, at the cost of the public treasury, in order to enable them to appear as witnesses in the case. The only criticism which it occurs to Taci- tus to make upon this transaction is that the Emperor was not justifiable in thus circumventing the law. Since torture can not well be practised in public, it was not suited to the Teutonic nations, whose tribunals were popular assemblies. It did not find its way, therefore, into northern Europe, or at least was not expressly recognized as legal, before the reign of Charles V., who, with his successor, Francis I., is credited with the re- vival of the old Roman jurisprudence. These monarchs 90 PUNISHMENT AND REFORMATION. established by law, in the sixteenth century, all that is included under the general title of torture. They recog- nized and adopted the Roman distinction between ordi- nary and extraordinary penalties ; the former were named in the code, and could be ordered by judges upon the testimony of witnesses or upon the plea of guilt by the accused ; but, if these were wanting, they could proceed to the question, and, if the sufferer con- fessed under duress, a larger discretion as to the punish- ment to be adjudged against him was vested in them. The right to put accused persons to the question was a prerogative of the grand seigneurs; like other name- less privileges which they enjoyed, it was for them an appanage of rank, a means of vengeance, and an agency for extorting tribute. There is much evidence that the resort to this more than questionable method of proof was never in England common as it was upon the continent. Hallam, the constitutional historian of England, says that "the common law neither admits of torture to extort con- fession, nor of any penal infliction not warranted by a judicial sentence ; " but adds, " This law, though still sacred in the courts of justice, was set aside by the Privy Council under the Tudor line. The rack seldom stood idle in the Tower, for all the latter part of Eliza- beth's reign." As some of the investigations made into prison management prove, jailers sometimes made unlaw- ful use of torture to extract information from prisoners. There were in the Tower two chambers, both of which were regarded as excellent places in which to seclude a man, in order to stimulate him to serious reflection. One of them was called " Little Ease," because it was INTIMIDATION AND TORTURE. 91 too small to admit of his standing, sitting, or lying in it with any comfort to himself ; the other was the " Dun- geon of Rats." The principal forms of torture were as follows. First, the cord, which was sometimes applied simply by tying the thumbs together as tightly as possible with whip- cord. Generally, however, by the cord is meant the violent jerking of which there is an illustrative engrav- ing in John Howard's book on the " State of Prisons." It is sometimes called the strappado (French estrapade)} The victim, having submitted to have his hands firmly tied behind his back, was raised by a rope and pulley to a height, then suddenly dropped and caught, so that his joints snapped like a whip. To render it more ex- cruciating, weights were sometimes attached to his feet ; Howard saw five different weights in the prison at Zurich, the heaviest of which was one hundred and twenty pounds. Savanarola and Machiavelli were both subjected to this test. The common time for continuing it was an hour, and very few who endured it that long ever regained the use of their limbs. The thumbscrew I need not describe. A model of it may be seen in the Tower. It was occasionally used, as we use handcuffs, for securely holding prisoners. In the boot and wedge, the legs were tied and wedges driven between them. The boot was sometimes made of parchment, put on the feet wet, and then dried before a fire. The rack was introduced into England by the Duke 1 Francis the First, that bloody tyrant, with diaholical ingenuity, combined the strappado with burning alive, in the execution of Prot- estants, at a place in Paris formerly known as the Estrapade. 92 PUNISHMENT AND REFORMATION. of Exeter, and for that reason was popularly known as " Exeter's Daughter." It was a machine for stretching all the limbs at once, until there was danger of their giving way at the weakest joint, whatever that might be. The " Scavenger's Daughter " was named after the Lieutenant of the Tower, its inventor, whose name was Skevington. By its use the knees were drawn up to the breast and the feet to the thighs, where they were held by iron bars ; the sufferer was practically rolled up like a ball ; the blood was forced from his nose and mouth, and not unfrequently the ribs and breastbone were broken. Burning with heated pincers was called the hooks. A form of torture peculiar to Italy was the veglia, by which the point of a diamond was made to press against the end of the spinal cord of a prisoner seated upon a plank in which the diamond was securely im- bedded ; the result was convulsions. All the various pains which have been described under this head were borne, it must be remembered, not necessarily by the guilty, but by the innocent. The question preparatory was designed to make its subject commit himself; the question preliminary to make him commit some one else. The former was applied before, and the latter after, judgment. Attempts were made to guard so powerful an engine of oppression against abuse, by restricting the number of persons who could put it in operation, the conditions of its application, the extent to which it could be used in individual cases, and the crimes for whose discovery, proof, or punishment it was lawful to make use of it. But it was placed in the INTIMIDATION AND TORTURE. 93 hands of both the civil and the ecclesiastical courts, in an age of ignorance, superstition, and tyrannical abuse of class privilege. That torture is contrary to humanity and religion, as well as to sound principles of law, is now apparent enough. But the controversy over it lasted for centuries, and at times raged with fury. The great Roman lawyer, Ulpian, opposed it as unsatisfactory and dangerous. The Christian Fathers, Tertullian and Augustine, de- nounced it. The early Christians persuaded the Emper- ors not to inflict it during Lent. Many of the Popes condemned it : so did the Protestant sect of the Wal- denses ; so did the Encyclopaedists. Clement V. said that the withholding the sacraments from persons under torture was a damnable outrage. Montaigne said that torture was both cruel and useless. Nevertheless, so deeply engrained in the thought of men were the con- ceptions which underlay it and gave it vitality, that no writer could give it a death-blow, until Beccaria pub- lished his little tractate on " Crimes and Punishments," at Milan, in 1764. His book was the sensation of the day. It was trans- lated into all the modern languages ; he was invited to Paris ; but the best of all was that his views were adopted by governments, and that he lived to see torture abolished in Prance, in Austria, in Eussia, and to a large degree in Italy. It lingered in some of the petty Italian states until 1831 — a little more than sixty years ago. We are apt to accord the palm to Howard of England as the greatest of prison reformers. Beccaria did not, like Howard, spend his life and his fortune for the ameliora- tion of the unhappy state of those in bonds. But he 94 PUNISHMENT AND REFORMATION. perhaps did even more for the world, in winning its ear and altering the whole current of its criminal jurispru- dence. THE INQUISITION. Torture was so pre-eminently an ecclesiastical weapon with which to combat heresy, for the glory of God and the eternal welfare of human souls, that it would be to give but an imperfect idea of the change which has come over the spirit of the race, if no mention were made of the Inquisition. There were two very distinct periods in the history of the Inquisition, one of which covered two hundred years, from the close of the twelfth to the close of the fourteenth century, and the other began with the creation of the Spanish Inquisition, ten or a dozen years before the discovery of America by Columbus. The first of these periods need not detain us long. The Council of Verona in 1184 condemned the tenets of the heretical sects called the Albigenses and Waldenses, found in the south of France. Peter of Castelnau and Eaoul, two Cistercian monks, were sent thither to com- pel them to abjure their errors. They associated with themselves the great Saint Dominic, founder, in 1215, of the Dominican order. Innocent III. was his friend and patron. They invaded France on their sacred mission in 1204. At the memorable siege of Alby, July 22, 1209, (which made forever infamous the name of Simon de Montfort, the general who conducted the siege and per- mitted the massacre which followed), the soldiers asked Dominic by what sign they could distinguish the heretics from the faithful ; he replied, " Spare none ! the Lord will know his own." The church could not itself put its enemies to death, without despite to the spirit of for- INTIMIDATION AND TORTURE. 95 giveness by which it was supposed to be animated ; but the Emperor Frederic II., under the menace of excom- munication by Pope Honorius III., assumed the protec- torate of the Inquisition, and ordained that heretics condemned by it should be put to death or otherwise punished, according to their crimes, by the secular power. The Emperor, when it was too late, repented of his weakness, but Innocent IV. had by that time given it permanent life and united it to the Holy See. It was during this period of our story, that the Templars were suppressed, and De Molay, the grand master, burned alive, near the spot where now stands the statue of Henry IV., in Paris. The old Inqxdsition, however, ex- isted largely in name ; its pretensions were resisted ; and, although it obtained a foothold in Italy, Spain, Prance, and Germany, it had, when Perdinand and Isabella were married, become dormant everywhere except in the Papal States. About the middle of the fifteenth century, a young man, a student in the University of Salamanca, had the misfortune to fall violently in love with a beautiful Span- ish girl named Cazilda, who had engaged herself to a Moor. In a street brawl which ensued, the Moor dis- armed the Spaniard, who took a solemn vow to be re- venged, not only upon the Moor and his lady-love, but upon the accursed race to which his successful rival be- longed. They fled to Granada, where for a time they were safe. This passionate student subsequently made the acquaintance of Father Lopez, the Superior of the Dominican order in Spain, who perceived the brilliancy of his talents, his inordinate ambition, the ardor of his spirit, the intensity and tenacity of his will, and deter- 96 PVNISBMENT AND REFOUMATION. mined if possible to secure him for the church. Be- coming intimate, the secret of his undying hostility to the Moor was revealed to his new friend. Lopez, failing in the effort to cure him of a hopeless attachment and to seek peace of mind in a monastic career, suggested to him that possibly, not being of noble blood, he might gratify his .longing for vengeance even more effectually in Athe priesthood than as a simple layman. The young man became a Dominican friar. In the convent library he discovered the ancient records of the former Inquisi- tion. At the risk of his health and his life, he devoted his days and nights to poring over them. They excited his admiration, aroused his ambition, fed the spirit of persecution by which he was consumed, and decided him to become an inquisitor. But how to arrive at his end ? He went to Toledo, where he distinguished himself as a pulpit orator, at- tracted the attention of the Court, and finally became the tutor and confessor of the young Isabella, the future Queen of Spain. He instilled into her infant mind his own fanatical intolerance. On the day of her first communion, he extorted from her an oath upon the crucifix, that she would, on coming to the throne, either convert the heretics within her kingdom or ex- terminate them. In 1481 Isabella, whose marriage with Ferdinand had united the crowns of Aragon and Castile, received a visit, after her coronation, from Lopez, the confessor of Ferdinand, in company with her own confessor, the celebrated Torquemada, the student of whom I have spoken. The war with the Moors had just terminated with the conquest of Granada. The conspirators per- INTIMIDATION AND TORTUBE. 97 suaded the youthful royal pair to make formal applica- tion to Sixtus IV., then Pope, for the re-establishment of the Inquisition in Spain, and for the appointment of Torquemada as grand inquisitor. A bull to that effect was granted, and the principal seat of the tribunal was fixed at Seville, in the chateau of Triana. Torquemada aspired to be a Cardinal. I^'erdinand desired to enrich the crown by the confiscation of the immense wealth of the Moors and the Jews. Thus avarice and the love of power, those fatal human passions, were the foundation of the modern Inquisition. Torquemada lost no time in beginning his bloody work. During his first year, he burned nearly three hundred heretics in Seville alone, and two thousand more in the other cities and provinces of the kingdom. Outside of the walls of Seville he caused to be erected a stone scaffold called the Quamadero ; at the four cor- ners of the base were four hollow statues, representing the four great Hebrew prophets, into which the con- demned were forced, when fires were kindled around them, which were kept up until their bones were re- duced to ashes. It is not very many years ago that the remains of this scaffold were still visible. The work of Torquemada was effectively seconded by Ximenes, the Prime Minister of Ferdinand and con- fessor of the Queen, who saw in the Holy Office the means of creating, through intimidation, a party which would, in case of conflict, support the Minister against the throne. Purely personal and political motives were enough to make him the protector of the Inquisition. The Jews, the Moors, and even many Christians be- gan to fly in terror from Spain. Thereupon, emigration 98 PUNISHMENT AND BEFOBMATION. was declared to be a crime, and the emigrants were burned in ef&gy. In 1492, however, the King issued a decree banishing the Jews. In 1483 the Inquisition was made a permanent insti- tution. The sole power over it reserved to the Pope was that of confirming or rejecting the nominations of the grand inquisitor. The grand inquisitor presided over the supreme coun- cil, composed of five members, one of whom must be a Dominican. The fiscal procurer formulated the charges for trial; the qualificator passed theological judgment upon them ; the sergeant-major or marshal of the court was called the alguazil; and there were secretaries, a receiver, and two relators. The familiars of the Inquisi- tion were spies. Their number was beyond computar tion, their names were unknown ; they were called familiars, because they were looked upon as members of one great family. The Inquisition was supported from the outside by two lay societies, one of which, the Brotherhood of the Cross, was composed of nobles ; the other, the Holy Hermandad, of the commonalty. They constituted a sort of authorized ecclesiastical police or militia. The jurisdiction of the Inquisition over ecclesiastical offences was unlimited ; it could try some civil offences ; no religious faith was a bar to its jurisdiction. It took jurisdiction of individuals in four ways ; by common fame, the reports of spies, secret delation, and open accusation. The tribunal had the right to make arrests everywhere, even in churches. Its prisoners were in- stantly lost to the world ; their friends were forbidden to utter aa inquiry as to their fate, Inxmiped m cells INTIMIDATION AND TORTURE. 99 till summoned to appear, when they asked of what they were accused, the cold and formal reply was, " You ought to know." Before being put to the question, they were granted three "audiences of monition," in which the arts of finesse and cajolery were exhausted, to en- trap them into some admission which might be used against them or against others. At the first audience, they were threatened ; at the second, seduced by prom- ises; at the third, interrogated as to their genealogy, family history, and knowledge of theology. The pre- tended counsel assigned them rarely brought to the at- tention of the court any evidence in their favor, but did his best to coax them to make confession. There were three grades of prisons of the Inquisition, all under one roof. The public prisons were for those not charged with any crime against the faith ; the inter- mediate for the discipline of employees of the holy ofiB,ce not charged with heresy. Both of these were open to visitors. The secret dungeons were subterra^ nean ; they lay beneath the marble floor of the palace, were both dark and damp, and not a word was permitted to be spoken in them, either by the prisoners or by their jaUers. In the torture chamber, the three principal forms of coercion were by the cord, by water, and by fire. In the second of these, which has not been described, the body was extended at full length upon a frame so con- structed as to bend it slightly backward and to elevate the feet above the head ; the face was covered with a wet cloth, kept wet by constantly falling drops of water which had to be swallowed, in order to prevent suffoca- tion, At the sajiie time, the cords by which they were 100 PTJNISMMENT AND BEFORMATION. bound were continually drawn tighter by a tourniquet, so as to cut into the flesh until it bled. Torture by fire was both with hot irons and by slow roasting in front of flames. If a prisoner confessed, he was burned alive and his property confiscated. This torture chamber was removed from sight and hearing, and hung with black or with crimson. On the wall of the one at Nuremberg, when Howard visited it, was inscribed what he justly calls the "jingling verse:" — "uld mala patrata hwc sunt atra theatra parata." A crucifix hung behind the inquisitor's seat. The exe- cutioners were masked. All the proceedings were sur- rounded with mystery, more deeply to impress the imagination of the ignorant. Llorente, the historian of the Inquisition, who was its chief secretary, records that the number of its victims amounted, in the two centuries during which it lasted (1481-1808) to 341,021, of whom 31,912 were burned alive, and 17,659 were burned in effigy, or their dead bodies exhumed and committed to the flames ; for the Inquisition claimed jurisdiction beyond the tomb. In a history of the Inquisition published at Madrid in 1598, its author, Louis de Perama, an inquisitor, traces its origin to the creation. He claimed that Adam and Eve were the first heretics and God the fijst inquisitor. God was alone in the garden with Adam, when he asked him what he had done ; this is the warrant for secret interrogation. Adam's punishment was threefold : exile from Eden, deprivation of his former right of property in Paradise, and loss of dominion over the brute creation ; thus he justified the claim of the Inquisition to pronounce i^ "n^ INTIMIDATION AND TORTURE. ''\0\ 101^ <: ',^^-_ ,^> judgment of banishment, confiscation of goods, andrbssJ"-"' of rank. That the auto-da-fe is a divine institution, is proved by the flood and by the rain of fire which de- stroyed Sodom. Inquisitors have existed in all ages ; Sarah banished Hagar and Ishmael, Isaac deprived Esau of his inheritance, the Levites were the first inquisitorial council, and Jesus Christ himself caused the death of Herod. The Emperor Napoleon abolished the Inquisition in 1808, as an infringement upon his own imperial preroga- tive and upon the authority of the secular courts. A graphic account of the destruction of the Inquisition at Madrid in 1809 was published in an obscure Chicago newspaper, the Western Citizen, by Colonel Lemanouski, a Polish oiRcer in the Imperial Army, who was an eye- witness of the scene which he describes. The soldiers of the Inquisition made a desperate resistance, and the walls had to be battered down with the trunks of trees. A.n entrance having been effected, the inquisitors denied the existence of the secret torture chambers ; but, on flooding the marble floor with water, a crack was dis- covered, through which the water ran in a stream. Eepeated thrusts with bayonets in the neighborhood of this crack resulted at last in touching a concealed spring, the flying open of a marble slab, and the revelation of a stairway. In the dungeons reserved for prisoners for life many prisoners were found, of both sexes, all in a complete state of nudity, some of them reduced to a state of imbecility, and in various stages of starvation. Powder was placed under the palace, the walls and towers were thrown down, and the Inquisition of Madrid came to a perpetual end. 102 PUNISHMENT AND MEFOBMATION. The Congregation of the Holy Office still exists in Eome, but, although the canon law asserts the power of inquisitors to constrain even civil magistrates to cause the statutes against heretics to be observed, and to com- pel the execution of sentence, the Catholic Dictionary states that " nowhere does the State assist the Church in putting down heresy; it is therefore superfluous to describe regulations controlling a jurisdiction which has lost the medium in which it could work and live." DAWN OF THE REACTION. 103 CHAPTER VI. DAWN OF THE REACTION. The view given, in the last chapter, of the forms of cruelty practised by mankind in dealing with military captives, slaves, and criminal offenders (between all of whom there was a great resemblance in legal status), Would be incomplete without some figures tending to show also the extent of the evil. In the nature of the case, no complete or exact statement is possible. A few figures culled almost at random from various sources may be submitted, without expressing any opinion as to their trustworthiness, further than that they presumably give a truthful but inadequate idea of the recklessness of human rights displayed in past ages. Llorente's statement as to the Inquisition has been already quoted. The ancient laws of France authorized the infliction of the death penalty for more than one hundred distinct offences. A French judge, named Eemy, at Nancy, boasted that he had burned eight hundred in sixteen years, and that sixteen committed suicide in one year rather than run the risk of falling into his hands. In the first quarter of the sixteenth century, the public executioner of Nuremberg put to death eleven hundred and fifty-nine persons. In the seventeenth century, it is said, the Parliament of Bordeaux burned more than six hundred sorcerers in a single year. Seventy thousand executions took place in England during the reign of Henry VIII. These are merely sample instances. 104 PUNISHMENT AND BEFOSMATION. At last the world became -weary of shedding blood. It was not possible, in view of the growth of human knowledge, the progress of invention, and increased facilities for travel, to say nothing of the multiplication of books and newspapers, that the atrocities of former generations should longer be regarded with popular in- difference. The old legislation pushed its blind fury to the point of confounding the innocent with the guilty. Wives and children perished with their husbands and fathers ; posterity was robbed for the enrichment of titled and clerical oppressors ; if a slave was guilty of theft or murder, hundreds were sometimes slain for the offence of one. Revenge stopped not with the human species ; animals, and even inanimate objects, were for- mally accused, tried, convicted, and sentenced. Punish- ment assumed post mortem and hereditary forms. Men were executed in effigy. In its administration the grossest inequality was sanctioned by law. There was one penalty for the rich, another for the poor ; one for the slave, another for the freeman ; one for the noble, another for the commoner. Crimes which were known to the law were said to be ordinary ; but judges could add to the list others which were extraordinary and unprovided for, in the punishment of which they had large discretionary powers. The truth of the adage that "crime thrives upon severe penalties " is demonstrated by the experience of mankind, before the genius of Christianity and of mod- ern science taught the lesson of greater tolerance, so imperfectly learned, that even now rash and ill-informed men often express the opinion that what is needed for the repression of crime is severer penalties ; as if we DAWN OF THE REACTION. 105 could hope ever to rival what has already been tried in this direction. Among the distinctions recognized by European crim- inal law in the Middle Ages was that between the clergy and laity. By benefit of clergy is meant the exemption of priests from trial by the civil courts. The right of appeal to the ecclesiastical courts, however, existed only in case of a capital charge ; but so many offences were capital, that this was equivalent to exemption from civil jurisdiction in a large majority of instances. The ordi- nary demanded the delivery of the clerk by the civil authorities, who at first surrendered him before trial ; but later, the ordinary could take him even after trial, and he had the right to clear himself by compurgation. A jury of twelve, all of them priests, was impanelled ; he took a solemn oath in their presence that he was inno- cent ; and they solemnly swore that they believed him. This was the easy process by which he escaped punish- ment for his crimes, if it was not for the interest of the church that he should suffer. Originally, the evidence that he was a clergyman consisted in his tonsure and his habit ; but, in an age when the only persons who knew how to read were those in holy orders, or studying for the same, the practice gradually grew up of allowing any one who could read to plead benefit of clergy. Thus an institution than which nothing can be imagined more unfair, came, in the providence of God, or in the order of nature, to be the occasion of the overthrow of the very injustice of which it was a manifestation. Teach- ing letters to a prisoner by his jailer, in order to qualify him to claim benefit of clergy, was a punishable act. A man who had once been released upon this plea was 106 PUNISHMENT AND REFORMATION. not entitled to offer it a second time ; and, as has beea stated in order to make sure that he should not do so without being recognized, it was the custom to brand him on the fleshy part of his thumb. But an act ap- proved in 1706 admitted all persons to benefit of clergy, upon their own application, which was the virtual repeal of this distinction. The abolition of branding was one of the first indica- tions of the dawn of a more humane spirit in society. It was due to the recognition of the fact that a thief branded with the letter " T " was thereby wholly de- barred from all subsequent opportunity to make an honest living. Attention has been called to the distinction between felonies and misdemeanors, the former including all capital offences. At the common law, felonies were few in number : the entire list included, probably, no more than homicide, rape, burglary, arson, larceny, robbery, and mayhem. But others were made capital, from time to time, by statute ; and those thus added were made felonies " without benefit of clergy." By that was meant that persons convicted of them could not appeal to an ecclesiastical court and so escape death. The result was a great increase in the number of executions. The human mind finally revolted against such indis- criminate and useless slaughter. Magna Charta forbade the compulsory exile of any Englishman. But multi- tudes of prisoners under sentence of death were given the alternative, of which they hastened to take advan- tage, of voluntarily leaving the realm, if pardoned. Herein was the germ of English transportation. On the other hand, the increase in the number of DAWS OF THE REACTION. 107 capital crimes rendered it certain that the severity of punishment of misdemeanors would be gradually re- laxed. Little thought had yet been given to the possibility of making simple incarceration, without torture or any form of physical suffering, serve as a penalty of crime. Prisons existed from time immemorial. They are men- tioned in the Old Testament. Joseph was thrust into Potiphar's prison,. Samson into that of the Philistines, and Jeremiah's dungeon into which he was let down by ropes is never to be forgotten. But the ancient prison was only a place of confinement in which men were kept waiting the final disposition to be made of them. Samson, for instance, had been blinded before his imprisonment, or in the prison, and there he was pun- ished by making him grind corn. Ulpian, the Eoman lawyer, expresses this principle in saying, " Career enim ad continendos homines, non ad puniendos haheri debet." ^ The famous Cretan labyrinth was a prison : it was said to have but one inconvenience and but one merit — no one could ever, unassisted, find his way out of it. The Mamertine prison was for many years the only prison in ancient Eome.^ Afterward, a deep, dark dungeon was constructed 'beneath it, called the Tulliana, because it was built by TuUius.' 1 Career is by some etymologists supposed to be a derivatiye of coercere. Others connect it with the Hebrew carcar, to bury. 2 " Felices proavorum atavos, felicla dicas Saecula, quae quondam sub regibus atque tribunis Viderunt uno contentam carcere Eomam." JuvKNAL, Sat. iii. ' " Est in carcere locus quod Tullianum appellatur, ubi paullulum asoenderis ad laevam circiter duodecim pedes humi depressus. Eum 108 PtTNlSBMENT AND RSFOBMATION. Sir James Stephen is unable to find any mention of imprisonment as a penalty in Anglo-Saxon law, though a friendless man or a stranger who cotdd give no surety, at his first accusation, was required to go to prison " and there abide till he goes to God's ordeal." The first English prisons were merely wooden cages commonly constructed in the king's castles. The Wrons, however, had private prisons for offenders sentenced in the manorial courts, and the bishops had ecclesiastical prisons. The dungeons of the Middle Ages were situated either at the top of a tower or in a cellar or subcellar. They were not separate structures, but were apartments in a castle, fortress, palace, hospital, or convent. The habit of despots is to cover up tyranny by the use of euphemisms, which is illustrated by the fact that the ancient prisons were rarely given that name, but were called by some other. The history of famous prisons and the lives of famous prisoners fill many books. It is not possible to go very deeply into that. The Tower of London was originally a fortified palace, erected by William I. and used as an arsenal. Except the historical reminiscences which it suggests, the most interesting thing about it to-day is the wonderful collec- tion of old arms and armor which it contains. It really consists of several separate structures, the White Tower, the Bloody Tower, and the like. muniunt undique parietes atque insuper camera lapideis forniclbus juncta sed Inoulta tenebris, odore foeda atque terribilis ejus faoies est. In eum locum postquam demissus est Lentulus vindlces rerum capitalium quibus praeceptum eratlaqueo gulam fregere." — Sallust, Catil., cap. 55. DAWN OF THE REACTION. 109 The Bastille was originally one of the city gates of Paris — a fortified gate, flanked by two towers. It was known as the Porte Saint Antoine. The fortress which replaced it was erected in the fourteenth century, al- though the last two towers of the eight of which it was composed were not completed until the middle of the sixteenth century. Hugo Aubriau was the first superin- tendent of construction, and he was also its first prisoner. It was made a prison of state in 1417. When the boundaries of Paris were enlarged, to include the Fau- bourg Saint Antoine, the Bastille ceased to be of further value as a fortress and became purely a prison. It was here that the Man with the Iron Mask was confined. The French kings in the seventeenth and eighteenth centuries were in the habit of signing letters of cachet, by which men and women could be sent to prison with- out trial and there held during the royal pleasure : many of these letters were signed in blank and dis- tributed to the nobles at their request — a very handy thing to have, if one wished to dispose of a troublesome friend or enemy. This prison witnessed the death of many such, forgotten by all but their nearest friends. It was captured by the mob and destroyed, July 14, 1789. The commander in charge defended it with great bravery, and wished to blow it up rather than surrender, but the Swiss guards would not let him do so. It was taken only after eight cannon had been brought to bear upon it. This was the beginning of the French Kevolu- tion. Most of the apartments were octagonal in form : there were five grades of them, the worst being under- ground and the next worst at the top. Some of the dungeons contained iron cages, which were looked upon 110 PUNISHMENT AND SSFORMATION. then with greater horror than now. They were invented by the Bishop of Verdun, who subsequently, by an act of poetic Justice, occupied one of them. The oubliettes (so called from the verb oublier, to forget, because the prisoners consigned to them were meant to be forever forgotten) had deep pits in them concealed by a trap- door, through which a prisoner fell into mud and starved, or into water and drowned, or upon a wheel set with knives which cut him to pieces. Louis XI. is said to have killed not less than four thousand victims in these oubliettes. Another famous French prison was the Conciergerie, which is still used as a prison. It was an appendage of the Palace of Paris, and its name denotes that it was the abode of the conoierge or royal porter and door- keeper, whose office was to keep people in as weU as to keep them out. Its origin is lost in antiquity. From one of its towers was given the signal for the massacre of Saint Bartholomew. It has twice been burned, the last time in 1776. The cell from which the ill-fated Marie Antoinette went to execution is here shown to visitors. From this prison went also the man who was the soul of the Reign of Terror, with whose own death it came to an end : Robespierre, who, strange to say, in the Convention had proposed the abolition of capital punishment, and thus allied himself to Marat, who had written a book against it. Before being transferred to the Conciergerie, Marie Antoinette, with Louis XVI. and their two children and the children's saintly aunt, had occupied a tower of the Temple, during their long martyrdom. This was the strongest of all the Parisian prisons. It was once DAWN OF THE RM ACTION. Ill the palace and treasure-house of the Templars. After their dissolution in 1312 by order of Pope Clement V., it had been turned over to the Knights of Malta, whose priory it became, on condition that the towers should be used as a prison of state, which was the case until the founding of the Bastille in 1370. It was a prison under the Directory, and under Napoleon till June, 1808 ; it was torn down by order of the Emperor in 1811. Por-l'ifivgque {forum episcopi) was, as its name sug- gests, an episcopal or ecclesiastical prison. It was built about the year 1161, with dungeons and oubliettes under the towers. There was in it also a torture chamber. It was several times rebuilt, during the six or seven centuries that it was used. In 1674, after a long struggle between the Bishop and Louis XIV. over the question of secular or ecclesiastical jurisdiction, Louis seized it and converted it into a secular prison, spe- cially devoted to the retention of prisoners de cachet. It ceased to be employed as a prison in 1780, and has since been destroyed. BicStre, now a lunatic asylum, once the residence of a bishop, with a long and curious history of changes of owners and of functions, was, at the date of the Revolu- tion, a mixed establishment, partly a prison, partly a hospital, partly an almshouse. From here it was that convicts were sent to the galleys. Their departure was a sight much frequented by the great, who enjoyed the spectacle. About noon, they were brought from their cells to be chained, an operation which occupied the blacksmiths until dark. Twenty-six men were at- tached to each chain by triangular collars riveted around their necks. The spectators, moved by compassion, 112 PUNISHMENT AND EEFOBMATION. made them presents of money. They lay all night upon the straw in the court of the prison, because, being chained, they could not be taken back to their cells ; and in the morning they started for the coast in great wagons which held the whole twenty-six, placed in two rows of thirteen each (unlucky number !) back to back. The last convoy of this character left Bicgtre in 1835. The word Salpgtriere, the name of another French prison, suggests saltpetre, and in truth it was so named because Louis XIII. built it for the manufacture of gun- powder, though he called it the Little Arsenal. After it had ceased to be used as an arsenal, it became for a time a hospital for beggars — a sort of mediaeval way- farers' lodge without the labor test. Louis XIV. con- verted it into a prison for women. On the fourth of September, 1789, a committee of the Assembly ap- pointed to empty the prison of its inmates entered it for that purpose. The poor creatures there confined were rejoicing at the prospect of liberty, and all the more since a few were in fact set free. But presently a woman was brought before the committee, sitting as an irregular court of justice, who was branded on the shoulder with the letter «V" for voleur or thief. She was at once taken into the yard, where a company de- tailed for that purpose fell upon her and massacred her. Thirty-three women were thus murdered that day in cold blood. The last of them, who had no suspicion (as none of them had) of the fate of those who had pre- ceded her, had dressed herself with care in the clothes she wore when she was committed — a red gown, silver buckles in her shoes, gold earrings — and, when they DAWN OF THE BE ACTION. 113 undertook to carry her down the stairs, she made such a desperate resistance, that she was killed on the stair- case. The massacre of the inmates of the prisons of Paris by the revolutionists is one of the bloodiest pages in history. What happened here occurred at many other prisons, with added circumstances of horror. These were a few of the famous prisons of Europe in former centuries. Others were the Castle of Spielberg, in Austria, where Frederick the Great made such fearful efforts to crush the indomitable Baron Trenck, whose escapes and varying fortunes constitute one of the most exciting romances in the annals of tyranny ; the Leads of Venice ; and the Seven Towers of Constantinople. In the latter there was a cell called the bloody cell, with a pit under it called the well of blood. English literature has familiarized us with English prisons of the olden times, especially with the Mar- shalsea, the Fleet, and the Newgate. It was the custom of those days for every court to have a prison of its own: thus the Fleet pertained to the jurisdiction of the Star Chamber, and the Marshalsea to the King's Bench. In the sixteenth century there began to be erected here and there houses of correction or workhouses, not punitive nor reformatory but rather repressive in their character and purpose, designed for the detention not of criminals so much as vagabonds. They were more com- mon on the Continent than in England. There was in England a palace near Blackfriars called St. Bridget's Well, which was given to the city of Lon- don by Edward VI., as a lodging house for tramps and was converted into a house of correction. It is from 114 PUNISHMENT AND EEFOEMATION. the corruption of this title in the mouths of the common people, that the word Bridewell now applied to a city workhouse has been evolved. Parliament, in the reign of Elizabeth, ordained that there should be a house of correction in every county for persons described by Mr. Pike in the following words : — " There were the practisers of unlawful games — the forerun- ners of our modem skittle-sharpers, welshers, and gaming-house keepers. There were persons who ' used physiognomy, palmis- try, or other abused sciences, tellers of destinies, deaths or for- times. There were 'minstrels not belonging to any honorable person of great degree,' imlicensed buyers of rabbit-skins, sellers of aqua vitae, petty chapmen, tinkers, pedlers, jugglers, bear wards, fencers, tmlicensed players in interludes. There were begging sailors pretending losses at sea, and unable to show a license from two justices living near the place where they landed. There were Irish men and Irish women ' of the sorts aforesaid,' who lived by begging. There were hedge-breakers and petty pilferers of wood. There, too, were scholars of Oxford or Cam- bridge that went about begging, ' not being licensed by the chan- cellor or commissary.' " Begging in old times was a licensed avocation. The example was set by the begging friars ; but the privilege allowed them was gradually extended to persons not in religious orders. I quote again from Mr. Pike : — " Before the Norman Conquest a man who had no lord was to be accounted a thief : in the reign of Elizabeth a man who had no lord and no master was to be accounted a vagabond. In addition to the classes already mentioned, the houses of correc- tion were filled with ' idle laborers that would not work for the wages taxed, rated and assessed by the justices of the peace,' and 'strong, idle persons having no land, money, or lawful occupation.' " DAWN OF THE REACTION. 115 The gypsies, or Egyptians, as they were formerly entitled, were treated as felons ; and so were all persons seen in their company. Still more mixed was the collection of criminals, vagabonds, and unfortunates in the workhouses of the Continent. At Bruchsal, as late as the year 1750, there were gathered under one roof not only felons and misde- meanants, but lepers, lunatics, orphans and even unem- ployed handicraftsmen. The workhouse system, which was the middle term between the ancient and modern prison, required for its full development about a century and a half — say from 1550 to 1700. This period was marked by the creation of workhouses or houses of cor- rection (the terms are interchangeable) in London in 1550; in Amsterdam in 1588, and in the same year a hospital in Nuremberg was changed into a spin-house ; in Liibeck and Bremen in 1613 ; in Berne in 1615 ; in Hamburg about 1620 ; in Basle in 1667 ; in Vienna and Breslau in 1670 ; in Ltineburg in 1676 ; in Florence in 1677 ; and in Munich in 1687. Nearly all of them were in northern Europe, and in the Germanic states. That in Munich was intended for disobedient children, frivo- lous and insolent men, lazy boys and girls, stupid and refractory apprentices, day laborers who shirked their work — in a word, for such as would otherwise loaf and beg, or at least do nothing useful — in order that they might be brought to a better life, or, if that was beyond hope, placed where they could not mislead and injure others. The spin-house founded by Peter Rentzel in Hamburg in 1669 deserves special mention, because, "having observed that the exposure of petty thieves and prostitutes in the pillory tended to make them 116 PUNISHMENT AND REFORMATION. worse instead of better," he built this establishment " at his own cost, to the glory of God and for the salva- tion of souls, where they might by labor and religious instruction be reclaimed both for time and for eternity." He thus anticipated the benevolent intentions of Pope Clement XI. in founding the hospital of St. Michael at Rome. John Howard, in his record of his travels, has much to say of this new system. Among other things he mentions many of the occupations in which prisoners were engaged. In Holland the men were rasping log- wood in the rasp-houses ; the women in the spin-houses he found carding, spinning, knitting, and weaving; all of them being set to work, as he says, upon the princi- ple, " Make men diligent, and you will make them honest." When the invention of mills for grinding log- wood rendered this form of handwork no longer profita- ble, the manufacture of woollen cloth was substituted for it. Other Dutch prisoners were seen by him making fishing-nets, or sorting coffee-berries, or weaving coarse carpets, or sacks for the East India trade. In Germany the felons, called galley-slaves (though without water there could be in fact no galleys) were at work upon the streets or the fortifications, or in the chalk quarries. At Nuremberg, they polished lenses for spectacles ; at Bayreuth, they polished marble. In Belgium he ob- served the manufacture, in the prison at Brussels, of wall-paper ; in Portugal, of rope and of lace ; in Spain he saw convicts burning lime. At Naples, they were making shoes. At Milan, the prison was noteworthy for the variety of trades taught : shoemaking, tailoring, blacksmithing, cabinet-work, wagon-makiug, wood-turn- DAWN OF THE REACTION. 117 ing, leather-dressing, rope-spinning, nail-making, hand- painting on gauze, and many others. At Zurich, some prisoners, of the trusty sort, were hired out to private citizens by the day. A not uncommon bas-relief placed over the entrance to a workhouse in Germany he describes, which can only be taken as an indication of the rise of the concep- tion of a new and better use of prisons in the centuries to come. At Mayence, there was such a design, which represented a wagon drawn by two stags, two lions, and two wild boars, with an inscription to the effect that, if wild beasts can be tamed and induced to submit to the yoke, we must not despair of reclaiming the vicious and teaching them habits of industry. In a similar bas- relief at Amsterdam, tigers were substituted for stags, and the wagon was loaded with logwood. With the creation and multiplication of workhouses, the foundation of the modern prison system was firmly laid. The motive that gave birth to them was humane : they were really a more or less unconscious protest against the undue severity with which minor offences had been pursued. It was but a step to the belief that the punishment of felonies was also excessive. It was not possible to employ prisoners in profitable labor without regular hours and a code of rules : thus was laid the basis of prison discipline. The classification of prisoners was a necessity, at their work and at other times, because of the admixture of classes, of ages and of sexes. Separate quarters had to be provided for women, for debtors, and for the sick. This led to the adoption by degrees of better structural arrangements, and prisQB architecture began to assume a distinct form. 118 PUNISHMENT AND REFORMATION. Imprisonment, which the ■writers of the first half of the seventeenth century characterized as of all known pun- ishments the most wretched and the most injurious, a form of slavery and a living sepulchre, changed its aspect, wherever the new ideas found a congenial soil in which to take root and germinate. It would be an injustice to human nature, however, not to recognize the fact that in all ages, even the dark- est, there were voices raised in angry protest against cruelty even to the guilty, and hearts and hands which were at the service of the unfortunate, even where their misfortunes were the direct result of their own miscon- duct. It is a duty and a pleasure to emphasize this thought. The Church has always insisted upon the obli- gation to visit those in prison and to remember those in bonds as if bound with them. The Council of Orleans, in 549, declared it to be the duty of all archdeacons to visit prisoners every Sunday, regardless of their crimes. The Confraternity of Saint John the Be- headed, better known as the Miserioordia, the origin of which is shrouded in the impenetrable mist of an- tiquity, the Confraternity of Saint Mary at the Cross, which was founded at the time of the plague in Italy, in 1348, and the Confraternity of Death, created at Modena, in 1372, were religious brotherhoods organized for the amelioration of the sad fate of the imprisoned and the tortured, by a variety of charitable ministrations, but chiefly by attending them on the scaffold, seeing that their dead bodies were given Christian burial, and offering masses for the repose of their souls. At first, . visitation of prisoners was almost exclusively an act oi mercy to those under geutence of death, possibly be- DAWN OF THE REACTION. 119 cause the greater part of those under arrest were in truth sent to the stake or the gallows. * But when the new day dawned, of hope for the hopeless and help for the helpless, prison catechumens and chaplains were appointed, who ministered to all prisoners ; they were provided with necessary medical attendance; and skilled artisans were employed to teach them the trades at which they were required to work. With the classification of prisoners in prison came also, at no great distance in the rear, the classification of prisons. Thus the first workhouses, rude and imper- fect as they were, miserable as was their construction and government, yet marked the point of transition from that now obsolete system of criminal jurispru- dence to one which, imperfect as it is, and much as it retains of indefensible theories, at least gives promise of something vastly better in the near future. May Heaven speed the day ! 120 FUNISBMMNT AND BEFOUMATION. CHAPTER VII. THE REFORMATION OP THE CEIMINAL. When the reaction, took place against retribution and repression, it was inevitable that the thoughts of men should turn to the reformation of the offender. There has never been a time when this duty has not been insisted upon by sages and moralists. The Hebrew prophet ascribed to the Almighty the question : « Have I any pleasure at all that the wicked should die ? " Seneca said that punishment is designed to protect so- ciety by removing the offender, to reform its subjects, and to render others more obedient. Plato held that the proper end of punishment is not merely to render to the guilty their due, but at the same time to make them better : he so far anticipated the course of modern re- form in his dream of an ideal as to propose the construc- tion of three grades of prisons — one for persons under arrest, one for minor offenders, and one for great crimi- nals. The intermediate prison he would have named Sojohronisterion, because it was to be a place for teach- ing wisdom and continence. Aristotle defined punish- ment to be " the specific of the soul," and said that law should be " wisdom without passion." Saint Augustine, the venerable bishop of Hippo, in pleading for mercy to certain heretics, who had murdered two priests, declared that, however atrocious crime may be, it should not awa-ken anger an^ %(> (iesire for revenge, but should THE REFORMATION OF THE CRIMINAL. 121 rather be looked upon as an inward malady which it is our duty to heal. Pope Boniface VIII.- anticipated the famous dilemma of Mr. Frederick Hill, " reformation or incapacitation," in one of his edicts, in which he said that, while the prison is to be regarded as a place of detention rather than of retribution, yet the Church would not disapprove the incarceration of confessed or convicted clerical offenders for life or until they should give evidence of repentance. But these were the utterances of individuals. They were in direct opposition to the heathen spirit ; and the Christian spirit has never made more than a partial impress upon social and legislative institutions, even in so-called Christian lands. Yet it is the reformatory idea, which distinguishes the penitentiary era of crimi- nal jurisprudence. The honor of having inaugurated that era is gen- erally accorded to Pope Clement XI., who, when he founded the Hospital of Saint Michael, at Rome, in 1704, inscribed over the door : " For the correction and instruction of profligate youth, that they who when idle were injurious, may when taught become useful, to the State." And in the hall where the boys were at work he placed the inscription, " Parum est coercere improbos poind nisi probos efficias diseiplind," which Howard thus renders : " It is of little advantage to restrain the bad by punishment, unless you render them good by dis- cipline." This was a formal and official admission, by the highest authority, that the entire system of retribu- tion and repression had proved a practical failure. The erection of this juvenile reformatory institution, there- fore, is the landmark which divides two civilizations 122 PUNISHMENT AND REFOBMATION. or two historical epochs. But Saint Michael's was not a prison pure and simple. It contained a department for two hundred orphan boys, and other departments for aged and infirm men and women, of whom there were over five hundred, while the number of criminal boys was only fifty. For the latter the plan of the institution provided sixty single cells, in three tiers, one above the other, ten cells in each row, on the two sides of a spacious hall lighted by three large windows, one at the end and one at each side. This corridor was used as a common workroom by day : in the centre hung a placard with one word, " Silence ! " These were the essential features of what, a century later, was called the Auburn system. The reformatory idea made but slight progress until the day of John Howard, whose name shines illustrious in the annals of humanity and blazes like a star upon the roll of the saints in heaven. The best biography of him is by Hepworth Dixon. He was born at Hack- ney, now a suburb of London, Sept. 2, 1726. The humbleness of his origin should be an encouragement to every young man possessed of the apostolic spirit, that enthusiasm for humanity which supplies the place of noble birth and even of distinguished talents, if joined to the capacity for persistent and thankless toil. Howard's father was in trade, a dissenter, and, though he retired from business on a competency, he was not what would even then be regarded as man of large- wealth. The great prison reformer was but a dull scholar : he never succeeded in acquiring much edu- cation, and to the day of his death he was unable to spell the English language correctly. Two friends THE BEFORMATION OF THE CRIMINAL. 123 assisted him in the preparation of his book on the " State of Prisons : " one of them reduced his mass of memoranda to order, and the other gave them the requisite literary form. While still a boy he was for a time apprenticed to a grocer. His mind was narrow, his health infirm ; but he was intense, religious, firm but kind, somewhat eccentric, and, above all, single- minded and devoted. His first visit to the Continent was as a valetudinarian, seeking for health, before his first marriage. He was twice married and twice a widower. In 1755, after the death of his first wife, he sailed for Lisbon in a vessel named the Hanover, having conceived in his mind a project for the relief of the sufferers by the great earthquake in Portugal that year. The Hanover was captured by a privateer, and he was for a week a prisoner in a horrible dungeon at Brest. This was no doubt the place where the seed of interest in prisons and prisoners was sown in his philanthropic soul. For fifteen years it lay dormant. During that period he married again, built model cottages for the tenants upon his estate at Cardington, near Bedford ; his only son was born (who afterwards died a lunatic) ; he buried his second wife, with whom he had lived seven years, and made another journey for his health. Soon after his return, he was made Sheriff of Bedford and placed in charge of the jail in which, a hundred years before, John Bunyan had written the " Pilgrim's Progress." This was in 1773. While we were fighting for national independence, he carried on, single- handed, a war against the oppression of the guilty and the innocent, against precedent, prejudice and self- interest, in which he laid down his life. 124 PUNISHMENT AND HEFOBMATION. As Sheriff of Bedford, his attention was soon drawn to the fact that prisoners who had not been indicted, whose accusers had failed to appear against them, and also some who had been acquitted, were detained for want of money to pay the fees allowed by law to the jailer and other officials. He asked the county justices of the peace to make an allowance to the jailer in lieu of fees. They demanded a precedent for charging the county with this expense. Thereupon he rode into several of the adjoining counties in search of one, but learned that the same injustice was practised there as at home ; and, looking into the prisons, he witnessed scenes of sorrow which daily he burned with intenser zeal to alleviate. In order to become more thoroughly informed as to its nature and extent, he visited most of the county jails in England. Seeing in two or three of them some forlorn creatures whose aspect was more than ordinarily deplorable, he inquired why this was so, and was informed that they had recently come from the Bridewells. This furnished him a new subject for in- vestigation, and he made a second tour of England. The worst evil he encountered was jail fever, concerning the prevalence of which he was examined at the bar of the House of Commons in March, 1774, and the speaker publicly thanked him for his evidence. From this time forward his journeys in the interest of prison reform lasted almost without intermission until his death, of the plague, January 12, 1790, at Cherson, in Eussia, where he is buried. During these sixteen years of public service at his private expense, he visited almost every known country then accessible to European travellers. The first foreign THE nEFOSMATION OF THE CRIMINAL. 125 prison that he sought to inspect was the Bastille, to which he could not gain admission. He passed through an attack of jail fever in France. In Spain, he requested to be confined for a month in the prison of the Inquisi- tion at Madrid, but was told by one of the secretaries that "None come out under three years, and not then without taking the oath of secrecy." He sailed from Smyrna to Venice in a plague-infected ship, that he might learn by personal experience all about the laza- rettos, in which he felt as deep an interest as in the prisons. The vessel was attacked by Mediterranean pirates, and with his own hand Howard fired the gun which put them to flight. His death occurred on his sixth tour of the Continental prisons and hospitals, when he, was on his way for the first time to Turkey and the Orient. His statue was the first that was erected in the Cathedral of Saint Paul in London. In the history of prison reform, the two greatest names are those of Howard and Beccaria ; one an Eng- lishman, one an Italian ; one a Protestant, the other a Catholic ; one a commoner, the other a nobleman. Bec- caria was younger than Howard by about ten years, but he launched his book against torture ten years before Howard's first publication. Beccaria was a thinker, a student, who worked among his books ; and, though not a lawyer, his attack was directed against criminal law. Howard left his home and his native land, to pursue his studies in the field ; his knowledge of the subject was gained by original observation, and his attack was aimed at the practical abuses in the administration of the law. Howard's personal vanity led him to suppose himself much more of a physician than he really was ; but the 126 PUNISHMENT AND HEFORMATION. vanity of Beccaria lay in the direction of political econ- omy. Beccaria was seduced from the strict orthodoxy of a devout Catholic by the brilliant speculation of the Encyclopaedists, and he accepted the illusive and falla- cious doctrine of the social contract. Howard never swerved from the simple faith of an evangelical Chris- tian ; religious speculation had no attraction for him ; and his unconscious philosophy was that of Bacon, for he followed, without knowing it, the inductive method. His spirit was less philosophic but more scientific than that of Beccaria, more patient, more laborious, more indefatigable. Beccaria had the languid, indolent temperament of a southerner ; he lacked the lifelong consecration to a single purpose which distinguished his Anglo-Saxon contemporary ; he was animated more by ambition and less by a sense of duty. Both were sin- cere, courageous, and undaunted by danger or opposition. They had many views and sentiments in common. Both condemned the needless infliction of pain, and disap- proved of the death penalty, of life imprisonment, of imprisonment for debt, and of long imprisonment await- ing trial. Both saw the utility and necessity for labor and of education for convicts. But the genius of one was destructive, his eyes were turned toward the historic past, and he dealt to a dying outrage the finishing stroke of the gladiator. The eyes of the other were propheti- cally directed to the future, his genius was constructive, and he laid with skill the enduring foundations upon which the modern world has erected the prison system of the nineteenth century. They never met. Howard knew of Beccaria's book, for he quotes it : whether Bec- caria was aware of Howard's existence I do not know. THE RBFORMATION OF THE CRIMINAL. 127 But both were the product of the revolutionary age in which they lived, when thrones were tottering and despot- ism was giving way to political freedom and equality ; and both were chosen instruments in the hand of God for the elevation of the race by the better recognition of universal human rights.^ A fitting close to this chapter will be a brief account of the evils in prison construction and management, in England, at the end of the eighteenth century. Howard complained of the private ownership of pris- ons by the Lords of Manors and by the Bishops. Pri- vate pecuniary interest has always been a fruitful source of oppression, whether this interest has taken the form of blackmail or of profits upon convict labor. In the Bishop of Ely's prison, the luckless captives lay upon their backs, upon the floor, with spiked iron collars around their necks, and heavy iron bars across their 1 Beccaria was a thinker, Howard an actor; hence Howard more impressed the popular Imagination, and has been more frequently idealized in a literary way, as In the following poetical panegyric : — From realm to realm, with cross or crescent crowned, AVhere'er mankind in misery are found, O'er burning sands, deep waves, or wilds of snow. Mild Howard journeying seeks the house of woe. Down many a winding step to dungeons dank, Where anguish wails aloud, and fetters clank. To caves bestrewed with many a mould'ring bone. And cells whose echoes only learn to groan. Where no kind bars a whispering friend disclose, No sunbeam enters, and no zephyr blows, He treads, inemulous of fame or wealth. Profuse of toil, and prodigal of health ; Leads stern-eyed Justice to the dark domains, If not to sever, to relax their chains ; Gives to the babes the self-devoted wife, To her fond husband liberty and life. Onward he moves ; disease and death retire ; While murmuring demons hate, they still admire." 128 PUNISHMENT AND HEFORMATION. legs. (A similar account is given of an ancient castle in Transylvania, where, as late as 1840, prisoners were laid upon their backs every night, with their feet fast in stocks, so that they could not move). He reprobated the toleration of the practice of garnish, footing, or chummage, as it was variously called, the nature of which can be inferred from the command given by the jailer to each new arrival, " Pay or strip." He saw, in the rules which authorized the collection of fees from prisoners, on sundry pretexts, a fruitful occasion of wrong; and he desired the abolition of the fee system and the payment of fixed salaries instead. He found men and women not only ragged but actually dying of starvation. In some Bridewells no food was fur- nished. The keepers, on applying to the magistrates for an order to supply it, had been silenced by the bru- tal answer, " Let them work or starve." In many jails food was not given to debtors, who were dependent on charity for the continuation of their existence. Pris- oners who had money were required to buy supplies from the jailer, who kept a tap, where not only food but drink was sold, at an exorbitant price. The sale of beer by jailers was prohibited, under George III. ; bu^t the statute was evaded by giving permission to debtors to sell. The profits of the tap, together with the fees and garnish money, enabled the jailer to pay rent to the owner of the prison, if it was a private prison. The Duke of Portland charged eighteen guineas a year for a prison of one room, with a cellar under it. The ofB.ce of Warden of the Pleet was granted by Elizabeth to Sir Jeremy Whichcot and his heirs forever. Later, the patent was set aside, on the ground of its descent to THE REFORMATION OF THE CRIMINAL. 129 persons not qualified to execute the duties of the posi- tion, and a grant of life was made of it to Baldwin Leighton. After his death, it was given to one Huggins and his son, for the term of their lives, in consideration of £5000 paid to Clarendon, the Lord Chancellor. Huggins & Son sold out to Bambridge & Corbett, whose cruelty to prisoners for the sake of extorting money from them resulted in a Parliamentary inquiry and their having to stand seven trials for murder and another for theft. The Warden of the Marshalsea re- joiced in an income of £3000 or £4000 a year. One method of extortion was to iron prisoners heavily and make them pay to have their fetters removed or light- ened. The bedding furnished without charge was as scanty as the food : prisoners often lay upon the straw, which was not changed and finally wore into fine dust. Outsiders were freely admitted, even loose women to spend the night, if money could be thus made by the jailer. There was no privacy which was not bought. All mingled freely, of both sexes ; and poor debtors, like the Vicar of Wakefield, had their families with them as permanent residents of an abode the atmos- phere of which was as foul and obscene as any upon earth. Even in the Bridewells, the object of whose establishment seems in many instances to have been forgotten, it often happened that no occupation was provided. The time was spent in gaming, fighting, dawdling, recounting real or fancied criminal exploits, planning fresh depredations, and horse-play. A favor- ite amusement was the holding of a mock court.^ The 1 Mr. Buxton, in his " Inquiry " (1818) describes the trials in New- gate, as follows : " Their code is a subject of some curiosity. When 130 PUNISHMENT AND EEFOBMATION. sanitary condition of the prisons was -worse, if possible, than their moral state. They lacked ventilation and drainage, there was usually no water supply, they were poorly lighted, and they were abominably filthy. Some of them were badly overcrowded. In the majority, there was no medical attendance ; in some there was medical care of felons, but not of debtors. Malignant typhus fever, called jail fever or ship fever, since those were the places in which it was most likely to originate, was generally prevalent. Howard aifirmed that more prisoners were destroyed by this fever than were put to death by all the public executioners in the kingdom. The disease was not confined to prisons, but was propa- gated by contagion in the courts. The " Bloody As- size " was held in Oxford Castle in 1577. All who were present, including the Lord Chief Baron, the Sheriff, and about three hundred more, died within any prisoner commits an offence against the community, or against an individual, he is tried. Some one, generally the oldest and most dex- terous thief, is appointed judge ; a towel tied in knots is hung on each side of his head, in imitation ot a wig. He takes his seat, if he can find one, with all form and decorum ; and to call him anything but ' my lord ' is a high misdemeanor. A jury is then appointed, and regularly sworn, and the culprit is brought up. Unhappily, justice is not administered with quite the same integrity within the prison as without it. The most trifling bribe to the judge will secure an ac- quittal, but the neglect of this formality is a sure prelude to condem- nation. The punishments are various ; standing in the pillory is the heaviest. The criminal's bead is placed between the legs of a chair, and his arms stretched out are attached to it ; he then carries about this machine ; but any punishment, however heinous the offence, may be commuted into a fine, to be spent in gin, for the use of the judge and jury." A somewhat similar moot court was tolerated by the local authori- ties in the county jail at Denver, Colorado, some years ago, and the United States court was obliged to put an end to it. THE REFORMATION OF THE CRIMINAL. 131 forty hours. In 1730, at Taunton, several hundred, among whom were the Chief Baron and the Sheriff, died from jail fever contracted at the Lent Assize there held. The odor in some of the prisons that he visited was so fetid and so clinging, that he had to travel on horseback on account of it, not being able to endure the scent of his clothing in the confined atmosphere of a coach. It is greatly to his credit, that, with no medical education, he should have divined the cause of this fever and the remedy for it, and that his representations with reference to it resulted in its entire suppression in England within seven or eight years from the time that he entered upon his labors. His strictures upon the non-residence of jailers and the infrequency of jail deliveries were also well-de- served ; and he fearlessly held up to the English people the superiority in so many particulars of the Continental prisons, especially in those of cleanliness and of indus- trial employment of prisoners. The prisons of Holland, he said, were so clean that one would scarcely believe them to be prisons. But one advantage the English prisons could congratulate themselves upon ; there was no chamber of torture in any of them. It is evident that the reformation of prisons had to precede, in the logical and historical order, the reforma- tion of prisoners. Probably the same is true, at the present time, of the slums in our great cities; their physical must precede their spiritual transformation. 132 PUNISHMENT AND REFORMATION. CHAPTER VIII. THE PENNSYLVANIA AND AUBURN SYSTEMS. A PKELiMiNAEY hint as to prison architecture had been afforded in the cellular construction of the Hospi- tal of Saint Michael at Rome. But the real beginning of that art, in its influence upon prison construction in our time, was the building, by Vilain XIIII., of the prison of Ghent. Vilain was a man of extraordinary- capacity and character : a gentleman by birth, who was Burgomaster first of the town of Alost and afterward of the town of Ghent. A Deputy of Flanders, the Em- press Maria Theresa made him a Viscount, in recogni- tion of the great work he had done in the reform of the Flemish fiscal system. There is a natural connection between mendicity and crime. Habitual hunger develops and fixes the criminal character. All men must recognize the similarity be- tween the characteristics of a petty criminal and those of a vagrant. There are men who beg when they cannot steal, and who steal when they cannot beg. The beggar and the thief are alike lacking in foresight, in the power of application, in continuity of thought, in personal, moral responsibility. Both are constitutional liars. Both feel that the world owes them a living. Neither sustains any permanent relation to society at large, ex- cept one of antagonism to social order ; and often, in the case of both, there is wanting any attaobmeat to the soil, The Prison of Ghent General Perspective View (from • Model by Braem?,) PENNSYLVANIA AND AUBUBN SYSTEMS. 133 After the breaking-up of the feudal system, mendicity was very prevalent in Europe. The Crusades helped materially to develop it. It received a fresh and mighty impulse, on the return of the Crusaders. The Church did not frown upon it : the mendicant friars were a fa^ miliar mediaeval sight, and they set a bad example for imitation by men who needed not to take any vow of poverty and who would not take the vow of chastity or of obedience. At the close of the eighteenth century, Manders was overrun by an idle and vicious horde of supposed paupers, more than half of whom were impos- tors, who devastated the country : cutting and burning timber, robbing the peasants, and committing depredar tions which called for severe chastisement. But severe measures are rarely adopted anywhere for dealing with tramps ; and still more rarely are they enforced. In 1771 the Deputies of the Estates of Elanders prayed Vilain to formulate and submit for their adoption a plan of relief. In April he responded to this appeal in a memoir which bore as its motto two familiar scriptural quotations : " If any man will not work, neither let him eat," and " In the sweat of thy brow shalt thou eat bread." He suggested the erection of a maison deforce or workhouse, the cost of which he estimated at six hundred thousand florins. This proposition was dis- cussed by the Provincial Assembly, adopted in July, approved by the Empress of Austria in January, the necessary tax was levied, and in 1773 the prison was partially finished and occupied. The dates are impor- tant, for the period of the American Revolution was that of so many of the movements which, in their entirety, formed the beginning of prison reform. 134 PUNISHMENT AND REFORMATION. Before submitting a drawing of the outline of this famous structure, the remark is in place at this point, that the elements of prison architecture are very simple. The first prison was a single cell, usually at the top or bottom of a tower, lighted by a narrow window if at all. It may have been square, circular or octagonal, but is fairly represented by a square, as follows : — Two cells would look thus : — Suppose a corridor added, on one side : — Or placed in the centre : The Prison of Ghent firou'nd Plan (from the Memoir by Vilaln jtllll.} PENNSYLVANIA AND AUBURN SYSTEMS. 135 These are the elementary principles of cellular con- struction. There will be a corridor or there will be none ; if there is a corridor, it will be in the centre or on one side. If on one side, it may be on two or three or four — the principle is the same. If the corridor is in the centre, the cells will have outside windows, and the corridor will be lighted from the roof or by one or two end windows. If the cells are in the centre, the corri- dors will be lighted, and the cells will not. The ar- rangement of cells in long rows, or in tiers one above the other, does not change the principle; neither does the size of the cells, nor the manner in which they are furnished. In the Hospital of Saint Michael, at Eome, the corri- dor was in the centre, as at Philadelphia; but in the prison of Ghent, the cells were in the centre, and the corridors next the outer walls, as at Auburn. This is, I think, the oldest historical example of that mode of construction. Another novelty in its plan was the ar- rangement of the departments or wings. The outline of the building was octagonal, with eight trapezoidal courts between eight wings radiating from an octagonal centre, enclosing an octagonal central court, making nine courts in all; the wings were connected at the extremities. This will be better understood by refer- ence to the architectural plan on the opposite page, taken from Howard's book. The stellar form given to this prison may have influenced the architecture of the penitentiary at Philadelphia,' and the placing of 1 Sir Edmund P. DuCane, in " The Punishment and Prevention of Crime," following no doubt other writers in whose accuracy he supposed that he could have confidence, asserts that the radiating 1S6 PUNISHMENT AND JtEFORMATlON. the cells that of the prison at Auburn, so affecting the direction of the movement for prison reform in two ways at once, as we shall see. From the book in which Vilain gives an elaborate account of the prison at Ghent, its aim and spirit, its organization and rules, and the organization of labor ir it (with many interesting observations on the nascent manufactures of his day, in a state which has ever occupied an honorable pre-eminence as an industrial centre, which throw more or less light upon the origin of the factory system), it is clear that the architectural merits of the prison constitute its smallest claim upon our attention. It was remarkable, however, for the in- telligent appreciation which it exhibited of the essential correspondence between structure and function, and for the skill with which the mutual adaptations of the two were experimentally wrought out. The design seems not to have been fully executed : one-half of it was never built. Vilain has justly been entitled " the father of modern penitentiary science." In the first place, his prison had for its avowed aim the reformation of those committed plan ot prison construction was first adopted at Rome, in the erection of San Michele. Tliat the distinguished head of the English prison system has not himself carefully studied the subject at first-hand is evident, because he expresses a doubt whether John Howard had seen San Michele, though the great prison reformer gives a desorip tion and partial drawings of it in his work " On the State of Prisons.' Howard does not intimate that it was built on the radiating plan Noi does Signer M. Beltrani Soalia, in his book " Sul Governoesulla Biforma delle Carceri in Italia;" the latter, on the contrary, says that San Michele was " all under a single roof." What evidence is there that the plan of the Prison of Ghent was borrowed from Rome? None, so far as the author knows. If there is any, he would be glad to have his attention drawn to it. The Prison of Ghent. f'lni and Stcond Story Plan (from the Memoir by Vilain xijii.) PENNSYSVANIA AND AUBURN SYSTEMS. 137 to it. Tlien he believed in industry as the primary- agency for reformation of the criminal character. The labor which he regarded as reformatory was not, like the English crank and treadmill and shotdrill, perfunc- tory physical exercise of a semi-punitive, semi-sanitary sort ; nor was it, like picking oakum, as nearly unpro- ductive as can well be imagined. Furthermore, he recognized and insisted upon the importance of trade instruction, with a view to putting the prisoner in con- dition to earn an honest living, when discharged. Fi- nally, he appreciated the importance, in the selection of prison industries, of choosing, as far as practicable, such as would come least into competition with free labor on the outside. For this reason he rejected sev- eral excellent business offers to introduce certain lines of manufacture into the prison, one of which was the manufacture of tobacco, which, besides, he regarded as demoralizing to the inmates. He sought to find l-rades not followed in Flanders, but which, if adopted, might prove profitable to the Flemish people. In fact, there was a great diversity of avocations followed in the prison, among which may be mentioned : carding, spin- ning, weaving, shoemaking, tailoring, carpenter-work, and the manufacture of wool and cotton cards. To encourage prisoners to work, he allowed them a per- centage of their earnings, and the opportunity to do overwork. Part of their earnings was their own, to expend in the prison; part was retained, to be given to them at their discharge, so that they might not be penniless and on that account relapse into crime. The rasping of logwood was reserved as a penal pursuit. Few men have ever better expressed the nature and 1S8 PUNISHMStfT AND REFOkMATlON. end of discipline than he, in the first of sixty-three police regulations framed for the goverEment of pris- oners : " Discipline consists in the exact execution of every order given by a superior officer, without ques- tion or remark; and in the punishment of every act of disobedience, in order to achieve what the sentiments of honor and probity are insufftcient to accomplish." This he expected to secure by constant vigilance on the part of guards, and by the gradation of disciplinary punishments, according to the degree of offences and the amenability of the thoughtless or unruly to admo- nitions and warnings, culminating in the lash, solitary imprisonment, and the prolongation of the term of incarceration, at the rate of a week of added detention for each day in the dungeon. Every prisoner had a cell to himself at night: the work-shops were in common, and meals were served at a common table. He provided a resident physician and a resident chap- lain. Proper attention was paid to the classification of pris- oners. Felons were separated from misdemeanants and vagabonds, there was a distinct quarter for women, and he designed to make special provision for children also. His purpose being to combat mendicity, he al- lowed the commitment of children of the very poor by their parents, at a moderate charge ; the directors sub- scribed a fund at their own expense, the interest of which was to be applied to the payment of a school- master. Commitments for grave offences were by commuta- tion of sentence from corporal or capital punishment PENNSYLVANIA AND AUBURN SYSTEMS. 139 to simple imprisonment. Vilain objected to life sen- tences, as tending to produce despair and therefore in- submission ; and to short sentences, as not sufficient to teach the prisoner a trade, and therefore not reforma- tory. He wanted a minimum sentence of at least a year. He thought it unfair to authorize by law the detention of a convict after the expiration of his term of sentence, by way of penalty for misconduct in prison, and not to admit of a reduction of sentence as a reward for good conduct ; but remarked that, since the right of pardon and commutation of sentence is a royal preroga^ tive, the prison authorities ought to be empowered and required to recommend convicts for pardon from time to time, at their discretion. This was a sort of prophetic approval of what is now known as the indeterminate sentence, or at least of our " good time " laws. Such enlightenment in advance of his age, is truly wonderful. It is not surprising that the prison at Ghent excited Howard's warm admiration. On the oc- casion of his third visit, in 1783, he observes : — "I found a great alteration for the worse; the flourishing and useful manufactory destroyed; and the looms and utensils all sold, in consequence of the Emperor's too hasty attention to a petition from a few interested persons. That which ought to be the leading view in all such houses is now lost in this house." Maria Theresa, whose noble ambition was to reform every part of the imperial administration of Austria, had been succeeded by Joseph the Second, who had al- most' an insane hatred of all reform. The pecuniary interest of court favorites or the friends of such favor- ites outweighed in his mind all considerations of the welfare of prisoners and of the advantage to society to 140 PUNISHMENT AND B.EFOBMATION. be expected from their reformation. A few years later, Manders was occupied by the Frencli, who inaugurated the system of contract labor in this prison, so that it never fully recovered its former prestige as a reformat tory institution. Nevertheless, it was the birthplace of the new peni- tentiary dispensation. The first signal instance of its influence upon human thought was the publication, in 1787, of a series of letters by Jeremy Bentham, then in Russia, to a friend in England, entitled " Panopti- con, or the Inspection House." The Panopticon seems to have been the joint invention of himself and his brother, who was an architect, employed to build a Rus- sian prison (which was not erected, because of the war which just then broke out between Russia and Turkey) ; and the distinguished English publicist, seeing an adver- tisement that a house of correction was about to be erected somewhere in England, thought that a modificar tion of the Russian plan would answer for that. A comparison of the drawings for the Panopticon with those for the prison of Ghent will show that they have little in common, except the general form of a circular structure. The Panopticon was to be in effect a gigantic lantern, lighted by a glass roof, with cells next the outer wall, facing the centre, and an apartment for the In- spector in the middle, so that the interior of each cell would be at all times visible from a single point. The scheme had little merit, in comparison with its defects ; and, although efforts were successively made to have it adopted in Ireland, England, France, and the United States, it was everywhere rejected. A committee re- ported adversely upon it in New York, in 1811. It can >- ~ in >>. E PENNSYLVANIA AND AUBURN SYSTEMS. 141 be regarded in no other light than as one of the curiosi- ties of prison history. There is, however, little doubt that the design of the Eastern Penitentiary of Pennsylvania was suggested by that of the prison of Ghent.' Both are radiating prisons, with wings extending in various directions from a com- mon centre, like the spokes of a wheel or the arms of a windmill. In the Philadelphia prison, the cells are next the outer walls, instead of in the centre, as at Ghent; and the connecting structures at the extremities are lacking, as if the felloes of a wheel had not yet been fitted to the spokes. The resemblance in other respects is quite striking. William Penn, the founder of the colony which bears I When the ideaof the penitentiary system dawned upon the world, there were no precedents by which to be directed in its development. In the matter of architectural construction, the Iriends of an improved prison discipline were divided between the " radiating " and the " cir- cular" plans. The Panopticon was strictly circular; the Eastern Penitentiary at Philadelphia was strictly stellar. Between the two were the Prison of Ghent, built before either of them, and the Mill- bank Penitentiary, in Loudon, built after them both. Ghent was an octagon, with eight surrounding triangles; Millbank was a hexagon, with six surrounding pentagons. The arrangement of cells however, at Ghent, was predominantly radiating ; at Millbank it was predomi- nantly circular in principle, though not really circular in form — each of the pentagons, was, so to speak, a modified circle, that is, in the words of Mr. Holford, the prison was " so built as to enclose its court- yards within its perimeter." Archbishop Whately said, as late as 1832, " I do not think there is any one system which, in the present state of our knowledge, we are authorized to fix on as decidedly pref- erable to all others; it would certainly be the most modest, and I think it would also be the wisest, procedure, to give a fair trial to each of several different ones, which have been well recommended." He was not speaking of architecture, but the remark illustrates the uncertainty which prevailed as to the best course to pursue. In fact, the radiating system of construction is still highly esteemed, after trial; the Qiiciilar plan hag Ijeen abandoned. 142 PUNISHMENT AND REFORMATION. his name, had been a prisoner in England, because of his religious belief; he had, as a Quaker preacher, visited Holland, and had been greatly impressed by the Dutch workhouses. The denomination to which he belonged has always been noted for its benevolent spirit: the Friends condemn war and slavery and capital pun- ishment. When Penn framed a criminal code, he re- duced the number of capital crimes (which in his native country aggregated between one and two hundred) to one, namely, wilful murder. The Quakers took up the cause of prison reform, and made a religion of it. The Philadelphia Society for Relieving Distressed Prisoners was the parent of all modern prison associations. It was organized in 1776, suspended operations during the War of Independence, and was reorganized in 1787, when the war had ended, under the new title of " The Philadelphia Society for Alleviating the Miseries of Public Prisons." There was at that time a Jail in Philadelphia, called the Walnut Street Jail,^ the condition of which was wellnigh intolerable. It was a congregate prison, with- out discipline : the first time that any clergyman at- tempted to conduct religious services in the yard, the jailer, as a precaution against riot and to insure the preacher's personal safety, had a cannon brought into 1 The old jail at the corner oJ Third and Market Streets having become insufficient, the Legislature, in 1773, authorized the county commissioners to build a new prison at the south-east coiner of Sixth and Walnut streets, a, description of which may be consulted in the United States Gazette, for October, 1836. A new prison in Arch street was provided for in 1803. In 1831 both the Walnut and Arch street prisons were sold, aifd th? Mojram^usinj; County Prisou erected PENNSYLVANIA AND AUBURN STSTDMS. 143 the yard, and pliiced beside it a man with a lighted match. It is possible that the evils of promiscuous asso- ciation as here seen were one of the inciting causes of the advocacy by the Quakers of separate imprisonment. The idea of strictly cellular isolation by day as well as by night was not original with them ; at least it was not new in the world. The oubliettes and the dungeons of the Inquisition were made for solitary confinement of prisoners — but with a view to hastening their death. The Church had a motto, JEcelesia ahhorret a sanguine, which it construed literally, but had ways of putting its victims to death, in some instances, without the shedding of blood ; for example, in the horrible dungeons, named Vade in pace, which means " Depart in peace." They are said to have been invented by a Prior of Saint Martin-in-the-Fields, named Matthew, and were places where men were allowed to starve to death. But the first mention of solitary incarceration as a means of bringing an offender to repentance (which was the Quaker idea) that I have been able to discover, is in the following extract from the posthumous works of Mabillon, a Benedictine of the Abbey of Saint Germain, in Paris, one of the most learned men of the age of Louis XIV. : — "Penitents might be secluded in cells like those of the Car- thusian monks, and there employed in various sorts of labor. To each cell might be joined a little garden, where, at appointed hours, they might take an airing and cultivate the ground. They might, when assisting in public worship, be placed in separate stalls. Their food should be coarse, and their fasts frequent. No visitors from the outside should be admitted ; but the solitude of prisoners' lives should be unbroken, except by the visits of the Superior or some person deputed by him to exhort and console them." 144 PUNIBHMJBNT AND REFORMATION. Other references to the separate syi tern as an ideal are scattered along the byways of literature. The Christian Knowledge Society of London, organized in 1699, appointed a committee on prisons, of which Dr. Thomas Bray was the chairman. He made a report in 1700, followed, in 1710, by an "Essay towards the Eeformation of Newgate and the Other Prisons in and about London," which is reprinted in Dixon's life of Howard. In these publications he proposed separate confinement for prisoners under sentence of death, but limited it to them. In 1740 or 1750 (different authori- ties give different dates) Bishop Butler preached a sermon before the Lord Mayor, in which he advocated separate cells for all prisoners : he said that he con- sidered preparation for life even more important than preparation for death. A clergyman named Denne took the same position, in 1772, in a letter to Sir Howard Ladbrooke. Howard himself favored it, but not with- out reservation. He had seen separation practised in Europe. Of Holland he reports that "in most of the prisons, there are so many rooms, that each prisoner is kept separate : they never go out." In Switzerland, in every canton visited' by him, felons each had a room to themselves, "that they might not tutor one another." In his chapter on permanent improvements, he expresses his own opinion : — "I wish to have so many small rooms or cabins, that each criminal may sleep alone. If it be difficult to prevent their being together in the daytime, they should by all means be separated at night. Solitude and silence are favorable to reflection, and may possibly lead them to repentance." Elsewhere he has said that he wished " all prisoners PENNSYLVANIA AND AUBURN SYSTEMS. 145 to have separate ,Tooms, for hours of thoughtfulness and reflection are necessary ; " and added that he meant by day as -well as by night, but yet " not absolute solitude." That he dreaded the effect of too protracted isolation is apparent from the following quotation : — " It should be considered by those who are ready to commit for a long term petty offenders to absolute solitude, that such a state is more than human nature can bear without the hazard of dis- traction or despair." The earliest prisons built upon the separate system in England were built, one of them at least, under Howard's eye, or after consultation with him : the jail at Gloucester, built by Sir G. 0. Paul, an eminent magistrate, about 1785, and opened in 1791, under a special Act of Parliament for the regulation of the Gloucestershire prisons. A separate cell for each pris- oner was also provided in the jail at Horsham, built in 1779, six years before that of Gloucester, but there is no evidence that the separation of prisoners by night and by day was there enforced. Solitary imprisonment was prescribed by the revolu- tionary penal code of France, adopted in 1791, in the following words : — " Every convict sentenced to la g^ne shall be incarcerated alone in a light cell, and shall not be put in irons nor be branded ; but he shall be interdicted from all communication, during the term of his sentence, with other convicts or with persons from the outside." ^ 1 This reminds one of the dreadful inscription which the great and humane Edward Livingston proposed, in his " System of Penal Law for the State of Louisiana," to have Inscribed on every murderer's cell : " In this cell is confined, to pass his life in solitude and sorrow, 146 PUNISHMENT AND REFOBMATION. This was almost a literal transcript fiom the Austrian code published by Joseph II. in 1785 ; but the Austrian original contained a clause forbidding the giving to any prisoner, at public expense, of any food other thau bread and water, which was substantially equivalent to slow starvation. The purpose of the Austrian code was the immemorial wish to suppress crime by severity : but the Trench modification of it was animated by a half- formed thought of the possibility that the prisoner might be benefited by seclusion. ISTotwithstanding these various premonitions of the coming revolution in prison construction and manage- ment, the real foundation of the separate system can hardly be said to have been laid until, in April, 1790, the Legislature of Pennsylvania directed the County Com- missioners of the county of Philadelphia to erect, in the yard of the Walnut Street Jail, " a suitable number of cells six feet in width, eight feet in length, and nine feet in height," which, "without unnecessary exclusion of air and light, will prevent all external communication, for the purpose of confining there the more hardened and atrocious offenders, who have been sentenced to hard A. B. convicted of the murder of C. D. ; his food is bread of tlie coarsest Isind, his drinlt is water, mingled with his tears ; he is dead to the world ; this cell is his grave ; his existence is prolonged, that he may rememher his crime and repent it, and that the continuance of his punishment may deter others from the indulgence of hatred, avarice, sensuality, and the passions which led to the crime he has committed. When the Almighty, in his due time, shall exercise toward him that dispensation which he himself arrogantly and wickedly usurped towards another, his body Is to be dissected, and his soul will abide that judgment which Divine Justice shall decree." There is no doubt that this was meant as an inducement to the Legis- lature to be content with the abolition of the death penalty, for which it was designed to be a substitute. PENNSYLVANIA AND AUBURN SYSTEMS. 147 labor for a term of years, or who shall be sentenced thereto by virtue of this act." Unfortunately, no labor was provided for convicts thus separately confined. The old Quakers, sensitive as they were to the infliction of bodily pain, seem to have been unable to form in their minds an image of the fearful mental torture of solitude in idleness, as they did not foresee the inevitable effect upon the prisoner's physical and mental health. The condition of prisons in America, previous to this beginning of prison reform, and in many places for years afterwards, was about as bad as in England and elsewhere in Europe. In the State of Connecticut, there was at Simsbury,! for fifty years or more (1773 to 1827) an underground prison which was merely an abandoned mine, into which prisoners were thrust at night with their feet fast to iron bars and their bodies attached by chains around the neck to a great beam above. It was, notwithstanding this severity, a place where revelry ran riot, and at times pandemonium reigned. The cells in the Maine State Prison certainly as late as 1828 were in the form of pits, entered by a small ladder, through a gi'ated iron door, from the top; for at that time the intention of the authorities was to make enough more 1 The Simsbury copper mines were worked at intervals for about seventy years prior to the American Revolution, then abandoned and used by the Colony of Connecticut in 1773 as a permanent prison. The first prisoner was committed Dec. 2, 1773. Congress applied in 1781 for the use of these mines as a military prison, but, before the completion of the negotiation, the war closed. For a time mining was followed, but given up on account of the use made of the mining tools by the prisoners in digging out. Afterwards they were em- ployed In making wrought nails. This was the Connecticut State Prison from 1774 to 1827. 148 PUNISHMENT AND S.EFOEMATION. cells just like them to admit of the solitary confinement of every inmate. In 1817, the Pennsylvania Legislature authorized the construction of two penitentiaries, one in Philadelphia and the other at Pittsburg. Both were planned by an architect to whom the world is under a permanent obli- gation — Edward Haviland. That at Pittsburg was first built and occupied : the arrangement of the cells in a circle was bad, and has not been imitated. That in Philadelphia has served as a model which has been copied in all parts of the world, with variations, but preserving its main characteristics, the radiating wings, with cells next the outer walls and a corridor in the centre. The drawing on the opposite page shows the original design, which has been departed from and greatly injured by the construction of additional wings, for which there was really no available space ; but the more recent cells are an improvement upon those first built. The construction of individual cells was a natural and very praiseworthy reaction against the recognized evils of confinement in association, especially in idleness and without much attempt at discipline. The preamble to the Act of Parliament adopted in 1779, at the persistent instance of Blackstone, Howard and Eden, (afterward Lord Auckland), defined the object of the penitentiary system to be : " to seclude the criminals from their for- mer associates, to separate those for whom hopes might be entertained from those who were desperate, to teach' them useful trades, to give them religious instruction, and to provide them with recommendation to the world and the means of obtaining an honest livelihood after Cross Section of one Winff. Front Elevation, Showihf Wall. PENNSYLVANIA AND AUBURN SYSTEMS. 149 the expiration of tlie terms of their punishment." The questions to be decided were, first, how far the classifi- cation of prisoners required to be carried, whether they should be grouped or isolated ; and second, whether, if isolation were to be the rule, it should be by night only or both by day and night. At the same time that the people of Pennsylvania were grappling with these problems, the people of New York were doing the same, but finding a different solu- tion. There new laws and a new system had been ap- proved in 1797 ; but the Auburn State Prison was not created until 1816. It was designed for separation by night only ; the convicts were employed during the day in large workshops, in which, under the superintendency of Elam Lynds, formerly a captain in the army, the rule of absolute silence was enforced with unflinching stern- ness. Captain Lynds said that he regarded flogging as the most effective, and at the same time the most humane, of all punishments, since it did no injury to the prisoner's health and in no wise impaired his physi- cal strength : he did not believe that a large prison could be governed without it. This belief actuated his conduct. He had little or no faith in the possibility of reformation of convicts ; he believed them all to be arrant cowards, and encouraged in the sub-officers the disposition to treat them with contempt. A tale is related of him, that, having heard that the prison barber had threatened to cut his throat, he seated himself in the chair, demanded to be shaved by him, and, at the conclusion of the ceremony, remarked to the abashed and intimidated man, "I am stronger without a weapon than you are when armed," Accordingly, corporal pun- 150 PUNISHMENT AND REFORMATION. islinient was frequent at Auburn ; it was inflicted upon the spot, the moment that a man was detected in com- munication with a fellow-prisoner. Captain Lynds proved to be such a successful disciplinarian, that he was se- lected to build the new State Prison at Sing Sing, created by act of 1825, which he did with convict labor, to the astonishment of mankind, who did not suppose such an achievement within the bounds of possibility. Now that the nature of prisoners is better understood, it is so common as to excite no remark. Silence was, of course, so far as it could be enforced, in itself a form of separation of prisoners. In 1819, the New York Legislature authorized and directed the building of a wing at Auburn with cells like those in the Walnut Street Jail at Philadelphia, for trying the effect of cellular isolation upon prisoners. The block, which contained eighty cells, was occupied in 1821 ; but the results, in the direction of insanity and impaired health, were reported to be such, that the ex- periment was abandoned in 1823. The men confined to it were given no work : five of them died within a year, and one of them went furiously mad. In 1827, the Pittsburg prison was ready for the recep- tion of convicts. There was no provision for the em- ployment of convicts committed to it. A committee of the Legislature of Pennsylvania, appointed in December of that year, to report whether solitary confinement should be the rule in the Eastern Penitentiary, ad- vised the introduction into it of the Auburn system ; but, under the influence of Roberts Vaux and others, the recommendation of the committee was rejected. It was determined, however, no longer to confine prisoners PENNSYLVANIA AND AUBUIiN SYSTEMS. 151 in solitary cells in complete idleness ; and, in 1829, the legislature prescribed employment for all prisoners. Between the Pennsylvania and Auburn systems, so- called, a fierce rivalry sprang up. On the one hand, it was insisted that the remedy for the mutual corrup- tion engendered by contact of convicts in association can only be prevented by putting an end to all communi- cation between them. To this it was replied that there can be no such contamination under the rule of silence. The solitai-y or separate system was admitted to be the more costly. Its opponents declared that it was cruel and dangerous; its friends denied the charge. Lar fayette was not favorable to it, because, he said, he remembered that when he was incarcerated in the for- tress of Olmutz, he was forever planning new revolu- tions, from which he inferred that an ordinary criminal would in like manner plan, in the solitude of his cell, fresh depredations upon society; and also because he had seen the wretched inmates of the Bastille released from their dungeons, and he knew that many of them had been reduced to a condition of complete imbecility. Edward Livingston, on the other hand, was its admirer and advocate. The Boston Prison Society, founded in 1826, and the New York Prison Association, organized in 1845, waged a long and bitter controversy over the question at issue, with the Pennsylvania Society. The necessity for prison reform societies was, in the formative state of the peni- tentiary system, very great. Our forefathers, who had emigrated to secure for themselves the blessings of civil and religious freedom (to say nothing of making their fortunes id tlie new world) were capable of as arbitrary 152 PUNISHMENT AND BEFOBMATION. and crael acts as any of their Old World oppressors, as is witnessed not only by the insane persecution in New- England of old women and young girls as witches, but by various other facts less familiar. In New York, for example, negro slaves were sometimes burned alive, and, in order that they might be the longer in burning, green wood was used in making the fire. Worse even than that, they were sometimes hung up in a sort of frame and left to starve to death and their bodies to be eaten by the birds. The state of sentiment in Massachusetts may be inferred from a declaration adopted by the direc- tors of the Massachusetts State Prison in 1815, in which the doctrine was laid down that the discipline should be as severe as the law of humanity will by any means tolerate ; that a prisoner's mind requires to be reduced to a state of humiliation ; that all intercourse of pris- oners with each other, and still more with the outer world, ought to be suppressed ; that no newspaper should be allowed inside the walls ; that a prison is a world by itself, whose inhabitants are not supposed to know anything of what is passing without its orbit ; that the rules should be rigidly enforced, and the smallest deviation from duty severely punished ; that the punishment of a convict is incomplete, so long as his mind is not conquered — convicts should be brought to the condition of clay in the hands of the potter, sub- ject to be moulded into any form which the government of the prison might regard as necessary. The guards were exhorted to think of the prison as a volcano filled with burning lava, which, if not restrained, would de- stroy both friends and foes ; therefore they were always to be on their watch against a possible eruption. I PENNSYLVANIA AND AUBURN SYSTEMS. 153 dare say that the fact is almost wholly forgotten that the ancient practice of tattooing Massachusetts prisoners on the arm with the words " Massachusetts State Prison " was not abolished by law until June 12, 1829. The example set in the Walnut Street Jail was fol lowed here and there, in the United States, for a longer or shorter period, and with some limitations and reserva- tions; but it failed to produce a permanent impression upon the American prison system. Solitary confinement for some proportional part of the term of sentence was authorized in Maryland in 1809, and in New Jersey in 1820. Solitary confinement as a disciplinary pun- ishment in a State prison or penitentiary, with or without prescribed limits, is not uncommon; and the general opinion of American experts in penology is fa- vorable to the complete isolation of prisoners under arrest and awaiting trial. But the only states, I think, which have experimented with it, except Pennsylvania, as the principle of a prison system, are Virginia, where it can hardly be said to have had a fair trial : it was in 1822 ; the cells were in a basement, never warmed, where the water stood in drops upon the wall : New Jersey, which adopted it in 1833 and abandoned it in 1838 : and Khode Island, which adopted it in 1838 and abandoned it in 1842 or 1843. It was given up in the Western Penitentiary of Pennsylvania in 1869 ; and the model prison erected on the bank of the Ohio River, at Allegheny, is on the congregate plan. Even at Philadelphia, the modifications introduced into the system have been great : its harsher features have been gradually eliminated, and the failure of the legislature to provide funds for the proper enlargement 154 PUNISHMENT AND REFORMATION. of the establishment has compelled a partial abandon- ment of the attempt to carry it out in full, according to its original intention. The number of cells is so much less than that of the convicts who occupy them, that " doubling up " was inevitable. In some instances, how- ever, particularly in the female wing, the association of prisoners is allowed, in the cells or at work, from mo- tives of humanity, and it is admitted to be needless and unprofitable to insist upon the absolute isolation of all convicts, of every class. The conflict between the Pennsylvania and Auburn systems attracted the notice of the civilized world, and various European commissions crossed the Atlantic, to examine and report upon them ; of these reports four are conspicuous by their thoroughness. Messrs. Beau- mont and De Tocqueville came first, in 1831, at their own expense, but accredited as the representatives of the French government. Sir William Crawford was sent here, the same year, by the English government, which made the liberal allowance of £6,000 for his expenses, which enabled him to provide himself with many illustrative drawings and other valuable material for an elaborate report, which was the basis of the Eng- lish Act of 1835. He said of the Eastern Penitentiary at Philadelphia, that it was " in fact, with some trifling difference in the arrangements, but a counterpart of the Bridewell at Glasgow,^ which was in operation five 1 Mr. J. J. Gurney, who visited the Glasgow Bridewell, Sept. 10, 1818, says of it in his " Notes " that its principle was solitary confine- ment — one cell for every prisoner, but that Mrs. Fry and he found two persons in every cell. " The prisoners are able to communicate with one another out of their respective cells hy day and hy night. As their windows look over a small plain on the public road or street. PENNSYLVANIA AND AUBURN SYSTEMS. 155 years before the erection of this prison." In 1835, Dr. Julius was commissioned by the King of Prussia to make a similar investigation and report. At a later date, we were favored with a visit from Messrs. Demetz and Blouet, two other Frenchmen. From America the controversy passed over into Europe, where it has not yet ceased. The two rival systems are known all over the world as the Pennsyl- vania and Auburn systems, though the first did not originate in Pennsylvania, nor the second in Auburn, and though neither is now followed, at least in its en- tirety, as conceived by its originators, either there or here. The general adoption of these distinctive names is nevertheless an admission, honorable to the American nation, that it was on the free soil of the United States, under the influence of democratic ideas, that the peni- tentiary system received its earliest and best expression, as a humane reaction against former tyranny and op- pression in the name of criminal justice. The Pennsyl- vania system was better thought of abroad than at home. It was adopted in Belgium in 1838 : Oscar, of every little noise and every fresh object on the outside divert their attention from their regular duties. As we approached the prison, we observed a great majority of these windows cjowded with specta- tors." At Aberdeen, where there was also a Bridewell, which was inspected by them, Aug. 29, 1818, the separate system appears to have been better enforced, for Mr. Gurney says: " The several stories of this building consist respectively of a long gallery, with small but commodious and airy cells on each side. Every gallery is divided in the middle by the central stone staircase, the men prisoners being confined on one side [at one end?] of the house, the women on the other. The cells on one side of the galleries are for sleeping, those on the other for working. Every prisoner occupies a sleeping and a working cell, the Bridewell being intended only for solitary con- finement." 156 PUNISHMENT AND REFORMATION. Sweden, authorized its introduction into Sweden in 1840; it found its way into Denmark in 1846, and into Norway and Holland in 1861 ; the French Republic, in 1876, approved it for the Departmental Prisons, but the cost of the change has prevented it being fully effected. Many of the very best prisons of Europe, in these and other countries, are constructed, organized and managed on the separate system. That it has great merits is indisputable. One of them is the ease with which a prison can be governed, when the whole force of the administration, augmented by the architectural resources of the prison, can be opposed to the will of each individual undergoing sentence. An- other is the opportunity which it offers for individual discrimination between prisoners in their treatment, according to their personal needs. The absence of almost all occasion for disciplinary punishments is an- other • the prisoner is certain to demand work ; and there is little in the way of disorder or insubordination which he can do by himself. Then, such reformatory influence as may be brought to bear upon him by the prison officers or by the authorized prison visitors is not liable to be counteracted by the public sentiment of evil associates operating in the direction of combined resist- ance to admonition and counsel. On his discharge, moreover, he is free from the peril of being recognized by some companion in punishment and seduced or black- mailed by him. The motive which prompted it and which sustains it is the belief that solitary reflection has a tendency to bring evil-doers to repentance for their misdeeds ; that seclusion protects them from the deteri- oration of character resulting from evil communications PENNSYLVANIA AND AUBURN SYSTEMS. 157 in prison ; and that the reformatory agencies employed for their amendment will have freer scope and a more certainly favorable issue, if resistance to such agencies is not countenanced by the precept and example of the incorrigible. These principles seem, to the advocates of the system, so self-evident, that they are dogmatically sure that nothing half so pertinent and weighty can be said on the other side. There is, however, the objection that the prisoner, though relieved from the presence of evil companions, is not and can not be delivered from the company of his own thoughts; that he is still free to indulge in solitary vice ; that the natural effect of solitude is to enfeeble both body and mind; and that habits con- tracted during a long term of confinement unfit their subject for the return to the temptations of ordinary life. It is said that the solitude is not complete ; that the prisoner is visited by officials of various grades. True : but if any one will take the trouble to divide the number of prisoners by the number of officers and employees who do in fact visit convicts in their cells, he will easily satisfy himself that the number of minutes, on the average, during which the prisoner is not alone, can be but small.' Of course, his education in the ele- 1 The physician of the Eastern Penitentiary of Pennsylvania, in his report for 1850, observed: "I have heard various estimates of the amount of intercourse afforded to our prisoners, but they were all very much exaggerated. My own observation and the opinion of our most intelligent officers satisfy me that the average daily conver- sation of each prisoner does not exceed, if indeed it equals, ten minutes." If this was the average, how much intercourse with their fellow-men did those have, who enjoyed less than the average ? They probably constituted the majority. Remember, too, that this average waa administered not all at one time, but in broken doses. 168 PUNISHMENT AND BEFORMATION. ments of knowledge is hindered by the want of class instruction. The difiiculty of imparting religious in- struction, and of overseeing the work of prisoners, and of giving them needed physical exercise, is enhanced. Finally, the claim that communication between pris- oners is suppressed cannot be conceded. Vibrations in a solid wall separating adjoining cells are easily produced by tapping, and the signals so conveyed are readily understood and answered. It is a proverb that sound will travel wherever air can go : the pipes in every prison upon the separate plan serve, if the prisoner knows how to make use of them, as speaking tubes. All devices invented to prevent communication in one or the other of these two ways are ineffectual or too costly for adoption.^ Prisoners seem to have ways of pass- ing word from one to another which are too subtle for detection : they know as if by instinct what the author- ities in charge fancied to be an impenetrable secret. Mr. George Kennan has given an interesting account of the manner in which the Russian prisoners have developed out of the " knock " alphabet a highly ingenious cipher, the use of which even in communicating by taps upon the wall diminishes the number of taps which are necessary.^ 1 In the solitary cells of the Eusslan fortress of Saint Peter and Saint Paul, the floors are covered with painted felt. The walls are also covered with felt, and at a distance of five inches from the wall is a wire netting covered with linen and with yellow paper. The object of this contrivance is to prevent communication between pris- oners by knocking on the wall. 2 This is accomplished by a highly ingenious arrangement of the alphabet in five vertical columns, as shown on the following page. Instead of counting the number of each letter from the beginning of the alphabet (which would require, for the letter T, twenty knocks), PENNSYLVANIA AND AUBUBN SYSTEMS. 159 1 2 3 4 s 1 A B D £ 2 F G H I J 3 K L M N o 4 P Q E S T 6 U V W X T 6 z the number of the line is to be given in which the letter is found, fol- lowed by that of the column, so that, for T, four raps are followed almost immediately by five more, making nine in all — a saving of eleven, or more than half. The saving on each letter in the second line Is three raps, seven for each letter in the fifth line, eleven in the fourth, fifteen in the fifth, and in the last nineteen; against which there is a loss, on each letter in the first line, of one. The total sav- ing, therefore, is 194 out of 351 raps, which would otherwise be re- quired in repeating the whole alphabet, or an average of 55 per cent. If the square had no other value, this would be enough to recommend it. But Mr. Kennan shows how it can be converted into a cipher almost or quite Inscrutable, by using a key word, and idding its value to that of the other words in a sentence. The example which he gives is as follows, in which the key word is " prison " : — N i C h 1 a s a r r e s t e d P r i 8 o n P r i s o n P r i 8 34 24 13 23 35 32 U 44 11 43 43 16 44 45 15 14 41 43 24 44 35 34 41 43 24 44 35 34 41 43 24 44 75 67 37 67 70 66 52 87 35 87 78 49 85 88 39 58 The peculiar merit which he sees in this cipher is that the same letter may at one time be represented by one number and at another by anotber, while the same number may at different times represent different letters. A cryptograph of this kind cannot be deciphered by any of the ordinary methods. In deciphering a communication thus disguised, the numerical equivalents of the key word are, of course, to be subtracted from the cipher numbers, and then the letters which correspond with the figures in the remainder, fxe to be sought in the alphabetical square. The cipher numbers are sometimes written, sometimes called aloud, sometimes communicated by waving the band or alternately showing and concealing a light. If a prisoner has access to a win- dow, communications can thus be carried on with persons at a dis- tance — with friends outside, or with other prisoners. All of which suggests the question, does isolation isolate 1 160 PTimsBMUlffT AND RSffORMATlON. If the separate system has not proved as successful as was hoped, the same may be said of the Auburn system also. In most American prisons the rule of strict silence is not only not enforced, but no attempt is made to enforce it. Congregate prisons are, nevertheless, popular, largely because the employment of prisoners in shops, in connection with machinery operated by steam, renders their labor more profitable, whether they are at work upon contract or on public account. The reformatory influence of labor is perhaps less, where its primary purpose is the profit to be derived from it ; and the presence of a prison contractor, while it relieves the warden of a responsibility always burden- some, to which he may moreover, be unequal, and while it is recommended by its greater certainty to save to the State a part, if not the whole, of the cost of maintenance of the prison, is yet an obstacle in many ways to the establishment of a reformatory discipline. The refor- matory end in view in the creation of the penitentiary system, has, through the growth of a disposition to con- nect our prisons with the political machinery of elec- tions, been measurably lost sight of; though it has been made more prominent, since the organization of the National Prison Association and the holding of annual Prison Congresses. The real test of the excellence of a prison system is its adaptation to develop in its subjects the power of self-control. Like the lunatic and the idiot, the crimi- nal, if he ever had normal power of self-control, has lost it by disease or disuse. It is therefore not only necessary to restore or to create it, but to demonstrate the precise degree to which it has been developed. This PENNSYLVANIA AND AUBURN SYSTEMS. 161 the Pennsylvania system does not do, since it sedulously guards its subject from external temptation. Neither does the Auburn system accomplish this end ; for it is not enough to know by observation how a man will act in prison under guidance and restraint, but we need also, before releasing the grasp of the law upon him, to know how he will act when the restraints of prison life are removed. A new system has therefore been evolved out of the failure of these two, as they were evolved out of the failures which preceded them. The general influence which gave rise to the new or graded system may be traced to Australia, as will be shown in, the next chapter. 162 PUNISHMENT AND MMFOMMATION. CHAPTER IX. TRANSPORTATION AND THE PENITENTIARY SYSTEM. The provision of Magna Charta which protects Eng- lishmen from compulsory exile was evaded, before the abolition of the right of sanctuary, by the offer, in certain cases, of a free pardon to criminals, on condi- tion of their abjuring the realm, and by threatening them with hanging, should they ever return. ,.A statute passed in the thirty-fifth year of Elizabeth authorized the administration of the oath of abjuration to Roman Catholics and to Protestant dissenters ; in 1596, by a similar act, rogues and vagabonds were given the same privilege of voluntarily leaving the country for their country's good. Abjuration and the right of sanctuary were abolished under James I. The Act 18, Charles II., c. 3, authorized the transportation "to any of his Maj- esty's dominions in North America " of felons under sentence of death : they were given their choice be- tween hanging and transportation, so that the latter was in effect a conditional pardon. In 1718, by Act 4, George I., c. 2, the penalty (or privilege) of transporta- tion was extended to all felons sentenced to a term of imprisonment not less than three years ; to return prior to the expiration of sentence was an offence punishable by death. Contracts were made with private persons to convey the transported across the sea ; the contractors and their assigns were given the right to their labor TBANSPOBTATION. 163 during the term of sentence, which they sold to the criminal himself or to his colonial purchaser. Some- times he was released before he passed the mouth of the river Thames ; oftener, on his arrival in Jamaica, Barbadoes, Maryland, or elsewhere on the American coast. For a time, four or five hundred were shipped to Maryland annually ; others were sent to Virginia. The planters bought them. In eifect, they were slaves, for a term of years ; and the traffic in convicts was a form of competition with the African slave-trade. Reputable American colonists freely expressed their disgust with the system, but it suited the Mother Country, and the practice only ceased with the War of the American Eevolution. When this outlet for English rogues was forcibly stopped, the number of convicts in England in- creased so rapidly as to constitute for twelve years a serious embarrassment to the Government, which had not prisons enough to hold them. The surplus convict population was therefore confined in hulks, of which more will be said by and by. Not knowing what to do, the Government made an effort to establish a penal colony at Sierra Leone. In consequence of the mor- tality resulting from the intense heat, this experiment proved a failure and had to be abandoned. Thus the American War was the unexpected occasion of the birth of the penitentiary system, and of modern prison reform, as the sequence of the discussion in England to which the embarrassments growing out of that war gave rise. The voyages of Captain Cook, in 1770, 1773 and 1777 (in all of which he visited Australia, formerly called New Holland), attracted the attention of the Eng- 164 PUNISHMENT AND HEFORMAriON. I'ish Government to that quarter of tlie globe. Europe was distracted by the events which preceded the Trench Revolution, and had its eyes turned elsewhere. Eng- land profited by this circumstance, and took possession of a new world. By an order in council, dated Dec. 6, 1786, Commo- dore Alfred Phillip was appointed Governor of New South Wales. Eleven vessels, two of them ships of war, were loaded with seven hundred and fifty-seven convicts (part of whom were women), a limited num- ber of troops, provisions and other necessaries, and finally set sail from Spithead for Australia, May 13, 1787. The voyage lasted eight long months ; the emigrants disembarked January 18, 1788, at Botany Bay — a ridi- culous misnomer, since the place proved to be a desert. Leaving there a few of the sick. Commodore Phillip pushed toward the north and landed, a week later, at Port Jackson, where the foundations were laid of the now flourishing city of Sydney. Eleven of the colonists, with their wives, under the guard of two soldiers, settled on Norfolk Island, a veritable Eden, afterward famous as a hell on earth. By the close of the year, the provisions on hand began to fail ; no fresh supplies were received from the Mother Country ; scurvy broke out ; and the settlers suffered both from famine and pestilence. Even the natives were afflicted with small-pox, a disease of which they had previously no knowledge, but which the Eng- lish attributed to contagion from a French sailor. To the other troubles of the colonists were added hostilities on the part of the aborigines. Within twenty months TRANSPORTATION. 165 of the first landing, out of eight or nine hundred souls, one hundred and fifteen were already dead. No relief came until the third of June, 1790, when a vessel ar- rived, with some provisions and a cargo of women, which was soon followed by two more ; but several vessels with supplies were lost at sea. The task assigned to Commodore Phillip was no easy one. He set himself with all his might to organize an element of honesty in the midst of abounding rascality and profligacy, and to teach his men to become self- supporting, as well as in a degree self-governing. His authority was greatly augmented by the bestowal upon him by the Crown of the right of conditional pardon. But the moment arrived, when the terms of sentence of the transported convicts began to expire ; a terrible moment for him and for the colony. There was nothing for them to do, and no place to which they could go. He offered them concessions of land, employment, gov- ernment aid, and warned them that the alternative would be a return to England at their own cost. The majority spurned his offers. He could neither imprison them, nor attach them to the soil as free men. They returned home as best they could, as seamen before the mast or as stowaways ; any way to get back to their former haunts, and there resume a life of crime. To add to his perplexities, many unconvicted emigrants (chiefly Irish) arrived in search of an easy fortune in the new Eldorado, as they supposed it to be, most of whom landed in a state of destitution. A glamour of romance surrounded new countries, a century ago, which was enhanced by such books as Paul and Virginia, that idyl of love and innocence in the tropics. Then 166 PUNISHMENT AND REFORMATION. he had tremendous difficulties to encounter, in conse- quence of the overwhelming preponderance of the male sex. With the dawn of commerce, ardent spirits were smuggled into the settlement ; enforced abstinence had aggravated the appetite for drink ; what could one ex- pect ? In short, by the end of 1792, Commodore Phillip was exhausted, and he applied to be relieved of a respon- sibility which was beyond the powers of any living man. He was succeeded, provisionally, for a year and a half, by Major Grose, the Lieutenant Governor, under whom originated the system of hiring convicts to free colonists, also the breeding of live stock; the latter was largely due to the exertions of an officer named McArthur. The Government then sent out Captain Hunter. When he arrived, the most flourishing business in the colony was the distillation and sale of liquor, which could not be supressed ; it was therefore authorized and the privilege conferred upon favored individuals. The convicts had, too, in some unknown way, managed to arm themselves, but were held in check by an armed police composed of convicts who were well disposed. A census, taken September 1, 1796, showed that there were then 361 self-supporting convicts, 3,638 who were not self-sustaining, and that nearly a thousand of the more turbulent and dangerous were on Norfolk Island. The fact that convicts will not become colonists, until all hope of a return to the land from which they came is extinguished within them, became more and more evi- dent ; and the presence of those whose terms of sentence had expired, besides being a pecuniary burden, was a constant menace to social order and security. By the year 1800, the necessity for a prison was so urgent, that TRANSPORTATION. 167 private and voluntary subscriptions of money were freely made, to defray the cost of its construction. Captain King, the Commandant of Norfolk Island, followed Captain Hunter. One of his first acts was to found an orphan asylum for girls, eighteen miles from Sydney, who were there to be trained for wives, married off, and provided with homesteads at the public expense. In 1804, he started a settlement, under Colonel Collins (in Van Diemen's Land, now Tasmania, then recently discovered), and founded Hobart Town. Norfolk Island had become such a nest of brigands, that an attempt was made to break it up, by the offer of free transpor- tation to the new penal colony, and a double concession of land ; but the majority preferred to remain where they were. Captain Bligh, who succeeded King in 1806, was a tyrant ; the colony rose against him and held him a prisoner in his own house, until he could be sent to England. Colonel Macquarie, the next Governor, was an able and popular ruler, who began his administration by appointing an ex-convict to a seat upon the bench. The number of convicts who had then been transported to Australia, during the twenty years which had elapsed since the landing of Commodore Phillip, was 13,000 men and 3,265 women, of whom about 5,500 had died, leaving a population of 10,000 or more. The number of children born to them was about 9,000. Macquarie founded a bank. He secured gratuitous passage from England of the families of convicts, and the sending of young girls who professed penitence from female reformatories at home to be married in Australia. His 168 PUNISHMENT AND REFORMATION. reign lasted for twelve yearsj but it was embittered, by attacks made upon him in Parliament, whicb led to an investigation, resulting in nothing except the division of Australian society into two hostile factions, the " emancipists " and the " exclusionists " : the former wished to give the convicts a voice in the Government, but the latter were radically opposed to convict colo- nies. This division of feeling, which was very marked under General Brisbane, was the first symptom of the ultimate failure of the entire system. The adaptation of Australia to sheep husbandry and the growing of wool attracted English free settlers. Brisbane, by con- cessions in land, induced them to assume the charge and maintenance of convicts, and this gave rise to the troublesome and dangerous system of assignments, which closely resembled the lessee system now in vogue in some of the Southern states of the American Union. It was the cause of immense irritation in the colonies. The parties assigned to a planter were known as a " clearing gang." The money paid for their labor was paid to the Government. Since a higher price could be obtained for the better class of convicts as mechanics, only the worst of them went to the clearings and the sheep farms. Without following the history of the suc- cessive colonial administrations in detail, it is enough to say that in 1837, at a time when the English Govern- ment was in love with a novelty recently imported from America — the cellular or separate system of imprison- ment, a select Parliamentary Committee, which included Lord John Russell and "Sir Robert Peel, was appointed to inquire into the justice of the complaints made by TRANSPORTATION. 169 the colonists. The upshot of this investigation was the adoption of a new system, that of probation. At first, the period of probation was served in Aus- tralia. The convict, on his arrival, was placed in a probation gang, and employed in felling timber or in other public work. These gangs worked in chains, lived in barracks, and moved about from place to place. From the probation gang the prisoner rose by good conduct to a state of comparative freedom, in which he worked for private individuals, but the Government appropriated the money paid for his services. In Van Diemen's Land, there were three grades or classes of convicts, between the probation gang and conditional liberation on ticket-of-leave ; and each prisoner passed through all of them in succession. The ticket-of-leave was followed by a complete pardon, but, by the Act of 1847, the term of probation was ordered to be served in England ; at its expiration, the criminal was transported ; on his arrival in Australia, he was given a ticket-of-leave and was at liberty to hire himself to a free settler. Thus for assignment was substituted freedom of contract. It would be foreign to our immediate purpose, to trace the history of Australian transportation farther than is necessary to show its connection with the devel- opment of the prison system, first in England, then in Ireland, and at last in the United States. The experi- ment finally broke down, as it was inevitable from the beginning that it would. The difficulties in the way of success were chiefly three : (1) the inequality of the sexes; (2) the want of work for discharged prisoners in an unsettled country, where there are no employers ; and (3) the dissensions which arose, after the advent of 170 PUNISHMENT AND REFOBMATION. innocent settlers in numbers sufficient to enable them to demand that no more convicts be sent into the country. Besides, the accompaniments of this form of punishment were truly horrible. On the convict ships, the discipline •was much the same as upon a slaver ; men and women, separately chained in pairs, were imprisoned in the hold, where blasphemy and obscenity reigned, with little or no effort to put a stop to them. Ship-fever was common and fatal ; in a ship which sailed in 1799, with three hundred convicts, one hundred and one died on the voyage. On land, the difficulty of enforcing disci- pline was the occasion of great brutality ; the main reli- ance for order was the lash, and in 1838, with 16,000 con- victs, the number of floggings administered was 160,000, or an average of ten to each man. From 1793 to 1836, the death-rate among the transported was forty per cent, but among the free colonists only five per cent.^ Transportation to New South Wales was suspended in 1840. Mr. Gladstone suspended all transportation, during 1847 and part of 1848. Just at this crisis, gold was discovered, in 1850, in New South Wales and Vic- toria. The Government had agreed to send out as many free colonists as convicts. Western Australia had been 1 " Sir William Molesworth's committee of 1837-8, after a laborious investigation, concluded their report by condemning the punishment of transportation, as being unequal, without terror to the criminal class, corrupting to both convicts and colonists, and extravagant in point of expense. This committee recommended the institution of penitentiaries, at home and abroad, in place of it. These resolutions, together with the report of the Duke of Richmond's committee in the preceding year, produced a great effect upon public opinion, and the whole subject came seriously under the consideration of the Govern- ment." — Sir jQsguA JpBB, at the Social Science Congress, London, TBANSPOB.TATION. 171 erected into a new penal colony ; but the free colonists were flocking to the gold fields. With the passage of the Act of 1857, the word transportation disappeared from the statutes. The thing itself lasted, under the name of probation, until 1867, when the last shipload of convicts sailed for the antipodes, thus bringing to an end an experiment which lasted for precisely eighty years, and had at last to be abandoned.^ A word in passing as to French and Eussian trans- portation will divert us but a moment from the course of the argument. France made an unsuccessful attempt to establish transportation, about a hundred years ago. By a provis- ion of the penal code of 1791, criminals convicted a second time were ordered to be transported for life. By an act of the 24th Vend^miaire, in the year II., the Convention extended this order to include vagrants ; and by the law of the 11th Brumaire, in the same year, the island of Madagascar was designated as the site of the proposed penal colony. The naval war between France and England prevented the execution of this design. In 1810, the project having remained in abeyance, the Code 1 The convict life of Australia and the effect of the brutalities practised by some of those to whom the administration of the trans- portation system was there confided are well described in a work of fiction, "For the Term of his Natural Life," by Marcus Clarke, which occupies in Australian literature a place somewhat analogous to that of " Uncle Tom's Cabin " in our own. It has been drama- tized, and the play founded upon it is a stock piece, which can be put upon the boards at Sydney in any dull theatrical season. The warden of an American penitentiary, after reading this novel, pur- chased a number of copies for the prison library, with the double motive, as may be supposed, of contrasting his own mild but firm discipline with a harsher system, and of explaining his motive in adopting it, which was not moral weakness but the reverse. 172 PUNISHMENT AND REFORMATION. Napoleon abrogated the former code and so put an end to the project. Iti 1851, it was revived, during the reign of terror that succeeded the eoup d'etat of December 2, and by an unconstitutional ministerial decree, transporter tion was established. The decree named Guiana and Al- giers as colonies to which prisoners might be sent ; but it was modified, the year following, so as to apply only to Guiana. In May, 1864, an act legalizing transportation, was passed, and this penalty was substituted for hard' labor in the bagnes, which were suppressed, though that at Toulon continued to exist, until nearly twenty years later, as a depot for convicts awaiting passage across the sea. New Caledonia, an island in the South Pacific Ocean, about seven hundred miles east of Australia, was made a penal colony in 1863, at first merely as an ex- periment. Guiana and New Caledonia are now the only French penal settlements, though some military prisoners are still sent to Algiers. The history of the attempt to colonize Guiana is inex- pressibly sad. The country lies too near the equator, to be inhabited by Europeans ; the coast is marshy, the temperature always high, and rain falls one hundred and eighty days in the year. It is devastated by yellow fever (which is said, however, not to be epidemic), by marsh fevers, by dysentery, and by a fatal anaemia. In face of the depressing climate, marriages tend to become sterile. Count d'Haussonville has reported that, during the first period in the history of this colony, the average mortality was twenty-five per cent, and at some places it reached thirty-two per cent. In consequence of the ter- rible mortality, the Government, in 1867, relinquished the purpose to send European convicts thither, and TRANSPOBTATION. 173 Guiana is now reserved for negro convicts sentenced by tlie courts of Guiana, Martinique and Guadeloupe, and for Arabs shipped from Algiers. The first shipload of two hundred and fifty convicts sailed from Toxilon for New Caledonia, Jan. 2, 1864, and arrived in the roadstead of Noumea on the 9th of May, after a voyage lasting a little more than three months. Noumea is the seat of government. The prisoners are divided into fotir grades. They disem- bark on the island of Nou, which presents from the water the appearance of a great manufacturing establish- ment, with its workshops, its tall chimney, and its prison barracks, built of stone, in which the men sleep, in groups of fifty to each barrack. The most incor- rigible are here. The moral atmosphere of this island is identical with that of the old hagne at Toulon, of un- savory memory, which has in effect been removed bodily to Oceanica. From Nou they are conveyed by the " penitentiary flotilla," — a tow of barges drawn by a wheezy steam-launch, — to Noumea, which is a beauti- ful port, but destitute of easy means of entry, without wharves or lighthouses, much less fortifications, the streets of which are said to be open ditches. From Noumea they are sent to the camp of Montravel, and given a ten days' rest from the fatigue of the voyage. Thence they are distributed to various points to work : only, as M. Denis, formerly assistant director of the colony, dryly remarks, they need not work unless they choose, for they cannot be punished for not working. The lighter punishments they do not fear; and al- though the law authorizes their confinement in a dun- geon, the architect of the prison quarters on the island 174 PUNISHMENT AND REFORMATION. of iNou kindly omitted to provide any dungeon. New Caledonia consists of a wooded mountain range, of vol- canic origin, pushing its head above the level of the sea to a height, in some places, of eight thousand feet. The greater part of the surface is rocky; here and there are plateaus of rock covered with a few inches of soil. The celebrated farm of Bourail, the pride of the colony, produced, in 1880, with three hundred farm hands and one hundred factory hands three and a half tons of sugar, while the annual product of the farm of Koe brings forty thousand dollars less than its cost. French transportation is sustained by two powerful motives, the desire to be rid of dangerous criminals, and the wish to found colonies. But the difficulties encountered have proved to be the same as in Australia, with some others superadded. There is the initial difficulty of determining what class of criminals shall be transported, and at what stage of their punishment and for how long a period. Then arise legal questions as to the character of this penalty. "What is it ? an original sentence, a supplemental sentence, or a commutation sentence ? If transportation is to follow imprisonment, where shall the preliminary term of incarceration be served ? In the colony or in the Mother Country ? Another vexed question. There is also the difficulty of supervision of criminals at so great a distance from the home office, to say nothing of the increased expense of maintaining and guarding them. How are they to be prevented from escaping and returning home, or from leading the life of outlaws in the uninhabited portions of the colony ? Either the convicts must be surrounded TRANSPORTATION. 175 by free population made up of honest emigrants, which will in time absorb them, and these honest citizens rebel against the practice of thrusting upon them convicts as associates ; or, if not so surrounded, the convict popula- tion preys upon itself and becomes a moral cesspool. In the absence of free settlers, the Government is put to great expense for the repression of crime and the relief of destitution among the transports whose term of ser- vice has expired. The earliest mention of transportation in the penal laws of Eussia was in 1648, when it was regarded less as a punishment than as a means of getting rid of crip- pled and mutilated criminals. Mr. George Kennan says : — "The amelioration, however, of the Russian criminal code, which began in the latter part of the seventeenth century, and the progressive development of Siberia itself gradually brought about a change in the view taken of Siberian exile. Instead of regarding it, as before, as a means of getting rid of disabled crimi- nals, the Government began to look upon it as a means of popu- lating and developing a new and promising part of its Asiatic territory." And again : — " In the eighteenth century, the great mineral and agricultural resources of Siberia began to attract to it the serious and earnest attention of the Russian Government. The discovery of the Baurski silver mines, and the rich mines of Nertchinsk in the ter- ritory of the Trans-Baikal, created a sudden demand for labor, which led the Government to promulgate a new series of ukazes providing for the transportation thither of convicts from the Rus- sian prisons. In 1762, permission was given to all individuals and corporations owning serfs, to hand the latter over to the local au- thorities for banishment to Siberia, whenever they thought they had good reason for so doing. With the abolition of capital pun- 176 PUNISHMENT AND BEFOBMATION. ishment in 1753, all criminals that, under the old law, would have been put to death, were condemned to perpetual exile in Siberia, with hard labor." The exiles may be divided into three groups : (1) those sentenced by a court, of whom nearly all are criminals, who must remain in Siberia for life ; (2) those banished by administrative process, without trial ; (3) voluntary exiles, comprising members of the families of the banished. Of those banished by order of the Minister of the Interior, two-thirds are sent away at the request of the mir or village community to which they belong, and are simply vagabonds or discharged misde- meanants. The political prisoners, of whom the number exiled annually is almost insignificant, are not separated from the rest, in the above classification. Mr. De Windt says : — " There are two kinds of criminal prisoners in Siberia, namely, those who have forfeited all civil rights, and those who, though undergoing long terms of penal servitude, have retained them. An exile of the first category is, from the date of his sentence, practically dead to the world. He can never hope to return to Europe, his property goes to his heirs, he loses everything he has, even to his wife and name ; for the former is at liberty to remarry, while the latter, as a legal signature, is worthless. This class is distinguished by the head being half-shaven. The second-grade convicts lose no family or property rights, but are destined, their imprisonment over, for colonization. Of this class, many find their way back to European Russia, and the majority serve but a short term of penal servitude, though their sentence be a severe one. If well conducted, they are generally permitted to live out- side the prison with their families, earning their own livelihood, but devoting a portion of their time to Government work. Many of the women become domestic servants." The number banished each year, which used to aver- transportation: 177 age about eighteen thousand, has declined of late, and is now less than fifteen thousand. Many ameliorations in the lot of the exiles have also been brought about. T-he following account of the route by which they arrive at their destination is taken from De Windt: — " The Great Forwarding Prison of Moscow forms tlie rendezvous whence, in summer, gangs of about seven hundred exiles each are despatched two or three times a week by rail to Nijni-Novgorod. Here they are embarked upon prison barges and towed by steamer to Perm. From Perm well-appointed and specially built railway cars convey them across the Ourals (mountains only in name) to Tinmen, and from Tium^n a river journey of about nine days (upon similar barges to those aforementioned) lands them at Tomsk. At Tomsk the march (for those sentenced to remote districts) commences. Many, however, convicted of minor of- fences, are landed at Tobolsk, Sourgout, or other settlements far nearer Europe. From Tomsk the great post road (the only one) leads to Irkutsk. Two days beyond the latter city lies Lake Baikal, across which prisoners are conveyed in large wooden hulks, towed, as on the Obi, by cargo steamers. The post road is then taken once more, and three or four weeks later, according to circumstances, the mines of Siberia (Kara and Nertchinsk) are reached. The voyage from Moscow to the latter is usually made by ordinary travellers in a little under three months; but the time varies considerably with prison convoys, who may be de- tained by sickness, floods, impassable rivers, etc. No travelling is done in winter." The road is lined with stations called etapes, built of logs or of plank, for the accommodation of prisoners en route. They have large chambers with double rows of sleeping platforms through the centre of each, and closely resemble the barracks ' in which leased pris- 1 " In Mr. George Keniian's celebrated papers upon the Russian exile system, he fully describes the ' kameras ' or cell-houses in use in Siberia, and his articles are accompanied by numerous illustrations. 178 PUNISHMENT AND REFORMATION. oners are so often housed in the Southern States of the American Union. They are not large enough to furnish proper care of so many convicts as frequently occupy them for the night, and are at times badly over- crowded. It is easy to believe that their sanitary con- dition is not always satisfactory. The evils of the exile system are well known to the Eussian oificials and have been freely commented upon by them. Count SoUohub declared himself " an implac- able enemy of transportation," and said that in Siberia "recidivism exists perpetually, on a colossal scale;" it was his intention to have given to the public the of&cial information in his possession upon this subject ; but the time never came, when he thought it expedient to carry out this purpose. The report of Governor-General Anu- chin to the Emperor, in 1880, on the state of affairs in Eastern Siberia, as quoted by Mr. Kennan, proves that the Australian experience has been partially dupli- cated there. Eussian convicts are sentenced to im- prisonment with hard labor, or to forced colonization without labor. The latter are, upon their arrival at the place of their enrolment, given their entire freedom and expected to maintain themselves. I will venture the assertion that, if any Floridian convict was shown these pictures without the accompanying text, he would be prepared to swear that they were ruins of the camp in this State. It is not merely a slight resemblance, nor even a marked resemblance, but the two are absolutely identical in every essential detail. The main dif- ference is that there is no huilding-chain used in the Siberian cell- houses, the prisoners being given the liberty of the room, after they are locked in. The sleeping platforms, called ' nares ' in Bussia, and those in use here are exactly alike; such scanty arrangements as exist for personal cleanliness are similar, and the general arrange- ment and construction of the building and the stockade are the same. TRANSPORTATION. 179 " Only the least spoiled part of them, and those accustomed to work, establish themselves in the places to which they are as- signed, or seek employment in the gold placers. The rest aban- don their places of enrolment and wander about the country, giving themselves up to laziness, and imposing themselves as a heavy burden upon the local population, at whose expense they are fed. The influence of these exiles upon the people of the country is very pernicious, since they carry into the villages and towns the seeds of depravity. As the Siberian population grows more and more prosperous, it manifestly feels more and more the heavy burden of these criminal colonists, and submits to their presence only as to an evil that is inevitable, protesting loudly, however, in the meantime, against such an order of things." Two of the greatest difficulties experienced by the Government are the impossibility of adequate supervis- ion, so that at Kar^ very nearly ten per cent of the prisoners at work in the mines escaped in one year, and the lack of sufficient facilities for the industrial employ- ment of convicts, so that more than half of them are idle. Since 1869, the island of S^ghalin, in the gulf of Tar- tary, has been used as a penal colony. Prince Krapot- kine describes it as a spot unsurpassed in desolatipn except by Nova Zembla and New Siberia. This island The lowest order of Russian prisoners are fastened with stride and waist chains exactly like those used in Florida, and there is a coinci- dence of little details that is perfectly amazing to one familiar with both systems. Mr. Kennan states that, when he visited one of the kameras, he was horrified to observe that the whitewashed walls were stained a dusky red for some distance above the sleeping platforms, and was told that the stain was made by the prisoners, who crushed there the innumerable vermin that infested their beds. Mr. Kennan need not have gone so far away from home. In summer time these insect pests are almost Impossible to exterminate, and it takes only a few weeks for the convicts at the camps to paint a dado on the walls exactly similar to that which Mr. Kennan observed." — " The Ameri- can Siberia," by J. C. Powell, Captain of the Florida Convict Camp. 180 PUmSSMMNT AND UEFORMATION. is sometliing less than seven hundred miles in length, and one hundred and iifty miles in extreme width, with coal mines and some arable land of poor quality. The aboriginal population, a tribe of savage hunters and fishermen, numbers five thousand. The country is "shrouded, summer and winter, by dense fogs, the sun is seldom seen, and even in the month of June snow lies upon the hills, and the ground * is frozen two feet deep." To the extent that this barren re- gion is made a seat of penal servitude, Siberia will be freed from the presence of the undesirable class of colonists, but at what a cost to the victims of the hateful system ! Alaska has sometimes been talked about as a desir- able penal colony for the United States. But, apart from the warning contained in the experience of other nations, there are reasons founded in our political sys- tem why the establishment of such a colony would be impossible. In America crime is a local affair, since every State has its own code ; the only federal offences are offences against the Federal Government, or offences committed upon federal territory. The Federal Govern- ment would not have enough prisoners of its own to render it worth while to transport them, while the States have no jurisdiction over Alaska, and could not send their prisoners there, even if they wished. After this digression, we return to the question of the influence of Australian experience upon the course of prison evolution in England. When the American War of Independence closed the colonial out;let for felons (of whom Mr. Eden estimated that England sent abroad one thousand a year), Parlia- TRANSPORTATION. 181 ment, in 1779, directed that the county Bridewells should be enlarged, which, however, the local justices neglected to do, and proposed the erection of peniten- tiaries on the separate system, but with labor. As a measure of purely temporary relief, two old hulks at Woolwich were converted into prisons, though they were never so called, or treated as such in any statute ; other hulks were afterwards provided, at other royal dockyards. These hulks were not adapted to occupa- tion by convicts, and they became not only death-traps, by reason of their unsanitary condition and the preva- lence in them of typhus fever, but cesspools of moral contagion. They were leased out to a contractor, at a fixed price per head for prisoners committed to them, and the contractor was made overseer, so that his accountability must have been very slight, and the opportunity for abuses to grow up was proportionally great. The hulks were in use in England until 1857, and at Gibraltar until 1875. In consequence of the inadequate accommodation which they supplied, the erection of Millbank prison, for twelve hundred prisoners, was determined upon in 1812.' 1 An Act authorizing the construction of a Penitentiary had heen agreed to in 1779 (19 George III., c. 74) ; a site was purchased in Sep- tember, 1782 ; but the intention of the Government to found a colony at Botany Bay led to the suspension of the project, until Mr. Bentham came forward with his scheme for a Panopticon, which was infor- mally approved and an Act passed in 1794 (34 George III., c. 84), under which fifty-three acres in Tothill Fields were conveyed in 1799 to Mr. Bentham, and a contract with him drafted, which was fortunately never signed. In 1810 Sir Samuel Romilly called the attention of the House to the inaction of the Government. Two more years elapsed before the enactment of 52 George III., providing for the erection of a Penitentiary for the Counties of London and Middlesex on the land reoonveyed by Mr. Bentham to the Supervisors. 182 PUNISHMENT AND BEFOBMATION. It was begun in 1813, opened in 1816, but not completed before 1821, and cost over f 2,000, 000. It contained provision both for separate and for associated treatment of convicts, in two stages, beginning with the solitary- cell; the second stage was abolished in 1832. Mill- bank, after the abolition of the hulks, was the depot from which convicts sentenced to transportation took their departure for Australia. It ceased to be a convict prison in 1886, and has since been destroyed. The report of Sir William Crawford on the penitenti- aries of the United States, made in August, 1834, led to the creation of the metropolitan prison at Pentonville, for five hundred prisoners. This was meant to be a model prison, on the separate system, with the refor- mation of offenders as its avowed aim. It was begun April 10, 1842, and in its construction the radiating plan of the Eastern Penitentiary at Philadelphia was followed. The hulks and Millbank had been used as substitutes for transportation; Pentonville was meant to be a preparation for transportation. At this time, two distinct stages of punishment were recognized, namely: eighteen months of separate con- finement at Pentonville, followed by exile to Australia. Tickets-of-leave were not granted in England, but could be granted in the colony. Eighteen months was found to be too long a term of isolation, and the time was sub- sequently reduced to nine months ; afterward, an inter- mediate stage of imprisonment was introduced, which was served in a different prison, organized on the prin- ciple of separation by night and associated labor by day, on the Auburn plan ; and transportation with a ticket-of- leave was made a reward for good conduct in the prison. OEOUND PLAN OP JflLLBANK PENITKNTUBY. « Chapel. b Hexagon. C Peniagons. d Entrance. e Boundary Wall. THE PENITENTIARY SYSTEM. 183 Penal servitude, established in 1847, as a preparation for transportation, was, in 1857, when transportation was by law formally abandoned as a punishment, made a substitute for it. Then began the erection of great public works prisons. Portland was opened in 1847, Dartmoor in 1850, and to these have now been added Chatham and Portsmouth, where convicts are employed in enlarging the docks. The original theory of English criminal law was that, of all secondary punishments (by which are meant punishments not capital), transpor- tation was the most severe ; but it came to be believed that servitude in a public works prison was more severe than transportation, as is proved by the fact that four years in such a prison was made the equivalent of seven years' service in Australia. So much for the English prisons. The necessity for building prisons in England would have been avoided, if the people, first of the United States and then of Aus- tralia, had not absolutely refused to allow the deporta- tion of convicted felons to those countries. The next point to be considered is the reaction of Australian methods of dealing with convicts upon the prison system at home. Commodore Phillip, as has been shown, was given the right of conditional pardon, as Governor of the Colony. The lack of any prison structure made it necessary to work the men in gangs ; hence arose the system of progressive classification, which was developed in Australia to a high degree of perfection. The final stage of penal servitude was that of conditional liberation on a tick et-of -leave, which was an Australian invention. The effect upon English crim- inal legislation is very apparent. The Act of 1847 ere- 184 PUNISHMENT AND REFORMATION. ated four stages of imprisonment, namely : (1) cellular confinement in complete isolation, not exceeding nine months ; (2) probation, in England, in a public works prison ; (3) transportation to Australia, with a ticket-of- leave or the promise of one upon arrival ; (4) absolute liberation, at a period to be determined by the amount earned by the convict while on ticket-of-leave. Thus transportation, which had at first been considered the most dreadful of punishments except that of death, came to be regarded as a reward for good conduct while in prison. The period of probation in public works prisons was given the title of penal servitude, which is equivalent to the French travaux forces or the American " imprisonment at hard labor." At Portland, prisoners were divided into several classes, distinguished by dif- ferent dress, and promotion from one to another was earned by good conduct. The labor, which was in the open air, was in common. Here we have many of the characteristic features of the graded prisons of our own day, barring that of marks, which was also an Australian invention, the history of which must now be recounted. Norfolk Island, four miles long by three miles in width, was the principal penal settlement, to which the worst convicts were sent. Of about fifteen hundred on the island, probably two-thirds had been "doubly con- victed," that is, convicted in Australia of some criminal offence there committed, while under sentence of trans- portation. In point of natural beauty, the island was a Paradise, but the conduct of the men banished to it was indescribably bad ; they were given up to murder and all unnatural crimes. Upon one occasion, a witness in a murder trial professed to have seen so many THE PENITENTIARY SYSTEM. 185 murders on the island, that he could not remember the one in question; he said that he had seen men "cut up like hogs by a butcher." The punishments were so severe, that men would sometimes commit murder, for the sake of being transferred to Sydney, for trial, in the hope that the chance might present itself of escape on the voyage, or that the witnesses might so escape. It was not uncommon for small parties to escape to the woods ; and once a number of prisoners, who had so effectually hidden themselves as to be indiscoverable, on being reduced to starvation, ate six of their comrades, rather than return and give themselves up. Mutinies were frequent. It was testified before the Parliamen- tary Committee that, after one of these mutinies, seven men sentenced to death, on account of their part in it, dropped upon their knees and thanked God that they were at last to be delivered from the sufferings of life on Norfolk Island. Hither, in 1840, came, as superintendent. Captain Alexander Maconochie, of the Eoyal Navy. In Van Diemen's Land, according to his own sworn statement, he "had witnessed the dreadful state of depravity in which the men in the public gangs were sunk," and the idea occurred to him, that "it arose from the state of slavery to which they were reduced," which led him to " think of the expedient of marks as a form of wages, by which the state of slavery might be obviated, and still the act of punishment not lost." This plan of managing prisoners had been brought by him to the notice of the Transportation Committee of the House of Commons, in 1837. The first voice raised against time sentences was that 186 PUNISHMENT AND BEFORMATION. of Archbishop Whately, of Dublin, in 1832, -who sug- gested that the convict, instead of being imprisoned for a certain length of time, should be sentenced to perform a certain amount of work ; he would substitute, for time sentences, labor sentences, in the belief that the change would be an improvement.^ Whether the writings of Whately had fallen under Maconochie's eye is not known ; but his suggestion was in the same direction. Maconochie proposed to the Committee " that the du- ration of sentences be measured by labor and good con- duct, with a minimum, of time but no maximum ; that the labor thus required, being represented by marks, a cer- tain number of these, proportioned to the original offence, 1 " The plan which, as far as I am competent to judge, seems to me, on the whole, to promise the most favorably, is that which is suggested in the London Review, but which has not, that I know of, been hitherto anywhere tried ; viz., that of requiring, of such criminals as are sentenced to hard labor, a certain amount of work : compelling them indeed to a certain moderate quantity of daily labor, but per- mitting them to exceed this as much as they please; and thus to shorten the term of their imprisonment, by accomplishing the total amount of their task in a less time than that to which they had been sentenced. I would also allow them, for a certain portion of the work done, a payment in money : not to be expended during their continu- ance in prison, but to be paid over to them at their discharge ; so that they should never be turned loose into the world entirely destitute. Instead of being sentenced to confinement for a fixed time, they should be sentenced to earn, at a certain specified employment, such a sum of money as may be judged sufficient to preserve them, on their release, from the pressure of immediate distress; and orderly, decent, submissive behavior during the time of their. being thus emploj'ed, should be enforced, under the penalty (besides others, if found neces- sary) of a proportionate deduction from their wages, and consequent prolongation of their confinement." — Letter to Earl Grey, 1832. The article in the London Review, to which Archbishop Whately refers, was written by himself, and appeared in 1829. It is quoted in " Suggestions for the Repression of Crime," by Matthew Davenport Hill, p. 474. THi: PUNtTmTtAitt SYSTEM. l87 be required to be earned in a penal condition, before discharge ; and that, according to the amount of work rendered, a proportion of them should be credited day by day to the convict, and a moderate charge be made, enough for all provisions and other supplies issued to him; should he misconduct himself, a moderate fine be then imposed on him — only the clear surplus, after all similar deductions, to count toward his liberation." By this means he " sought to place the prisoner's fate in his own hands, to give him a form of wages, to impose on him a form of pecuniary fines for his prison offences, to make him feel the burden and obligation of his own maintenance, and to train him, while yet in bondage, to those habits of prudent accumulation which after dis- charge would best preserve him from again falling." On assuming the charge of Norfolk Island, he introduced, apparently on his own responsibility, and as an aid to good government, the mark system which he had de- vised, and which had received from the Parliamentary Committee a qualified approval. It was absolutely new and untried. The story of his achievement, with its aid and by his personal power and tact, in reducing a turbulent popula- tion to comparative order, in four years, is interesting and instructive, but is omitted, in order that the atten- tion of the reader may be concentrated upon the mark system and Maconochie's relation to it. Every convict was debited by him with a certain number of marks, according to the character of his offence, which he must redeem, before being recommended for conditional libera- tion. Instead of issuing the prescribed quantity and kind of government rations, he credited each man with a 188 PUNISHMENT AND REFORMATION. certain number of marks per day, for his subsistence, to which he assigned an arbitrary pecuniary value, and the prisoner was at liberty to exchange them at their nom- inal face value for food and other supplies, at the Gov- ernment Depot. Marks were earned by good conduct and by labor; intellectual marks were also given to those engaged in the prosecution of their studies; and the surplus above the amount charged for maintenance went toward the purchase of more speedy liberation. The effect upon discipline was so extraordinary, that Maco- nochie himself said, " I found Norfolk Island a hell, but left it an orderly and well-regulated community." He was afterward for a time Governor of the Bir- mingham Gaol, in England, where he put the same sys- tem in operation; but, inasmuch as the law did not recognize task sentences, the dif&culties in his way were insuperable, and he appears to have been officially looked upon as a failure — apparently with little jus- tice. He seems to be one of England's unappreciated and partially forgotten worthies. The mark system, however, went into the English code, after Sir Walter Crofton had first experimented with it in Ireland. Crofton borrowed it from Maconochie. In the mark system now in use in England, the high- est number of marks that can be earned is eight per day. The first year is regarded as a period of probar tion, and is spent in a solitary cell : the minimum num- ber of marks which will entitle the prisoner to pass into the next stage, which is called the third or lowest grade, is seven hundred and twenty. Eight marks per day, or two thousand nine hundred and twenty in the year, earned in the third grade, entitle him to promotion to THE PENITENTIARY SYSTEM.' 189 the second or intermediate grade ; and the same number there earned advance him to the first grade, in which there is a higher sub-class called " special." Should he fail to earn the full tale of marks demanded for promo- tion within the year, he remains in the lower grade until they have in fact been acquired. During the year of probation, the convict earns no money ; in the lowest grade, he earns one shilling per month ; in the interme- diate grade, a shilling and sixpence; in the highest grade, half a crown. In the lowest grade, prisoners are allowed to receive visits from their friends but twice during the year ; other distinctions in privileges are made as to diet, exercise, and correspondence. The convicts in each grade wear a different uniform dress. There is a "star class," selected entirely from first of- fenders, in which a red star is worn on the breast. The provisions as to grades in the local jails are similar, but the number of marks required for promotion is there only two hundred and twenty-four. During the first stage, the prisoner sleeps on a plank, without a mat- tress ; in the next, he has a mattress five nights in the week; then six; and in the highest grade, every night. The Irish or Crofton system was somewhat different. The English graded system recognized three stages, soli- tary imprisonment, labor in association, and transpor- tation ; when transportation was abolished, the third stage was altered to release, in England, on a ticket-of- leave. Sir Walter Crofton, the Director of Irish Convict Prisons, who was made a baronet for his services as such, and who certainly exhibited great talent as an organizer and governor of prisons, introduced a fourth 190 PUNISHMENT AND REFORMATION. stage. The period of cellular incarceration was served at Mountjoy, where there was a prison in two depart- ments, one for men and one for women. The second stage was that of " progressive classification," a phrase of which he was the author. His male prisoners were transferred from Mountjoy to Spike Island, where they were divided into five classes ; the probation class, third, second, and first classes, and the advanced class. The probation class could be skipped by prisoners who had made a good record at Mountjoy. The majority of those transferred were placed in the third class, where they had to earn nine marks per month for six months, or fifty-four marks in all, as the condition of promotion. The number of marks to be earned in the second class was the same ; and in the first class, twice as many, so that they could not pass from the first to the advanced class in less than one year. Under the English system, they would then have been entitled to a tieket-of-leave, but Sir Walter would not grant it until after a test had been applied, in a condition of comparative freedom, at a third prison, called an intermediate prison, at Lusk, where they slept in movable iron huts and were occu- pied almost precisely as freemen would have been, in farming an^ manufacturing. The prison at Lusk had neither bars, bolts, nor walls. Its aim was to make practical proof of the prisoner's reformation, his power of self-control, his ability to resist temptation, and to train him for a considerable period — never less than six months — under natural conditions, and so to pre- pare him for full freedom by the enjoyment of partial freedom as a preliminary step. The success of Lusk was largely due to the extraordinary capacity of the THE PMNITENTIART SYSTEM. 191 teacher there employed, Mr. Organ, whose name is famous in prison annals. The female prisoners served the second stage of progressive classification at Mount- joy ; but were transferred, for the third or intermediate stage, to Golden Bridge, three miles from Dublin, which was a Eefuge, presided over by a Sister of Charity. Since Sir Walter Crofton ceased to be the Director of Irish Convict Prisons, the English Government has abolished the intermediate stage. The only place where the Irish system can now be found in its entirety is at Lepoglava, in Hungary, where it has been organized under Mr. Tauffer, who there conducts one of the great and successful prisons of the world. The convicts are divided into three grades. Those in the first grade are subjected to a strictly cel- lular regime. In the second grade, they work in asso- ciation. On reaching the third (or intermediate) grade, they occupy cottages, at a considerable distance from the main prison, resembling those inhabited by the Cro- atian peasants. These cottages have neither bars nor bolts, and there are no guards other thaa the overseers of the work of the prisoners. The fourth and final stage is one of conditional liberation. The mark system has of course been imitated in the English Colonies. It is also found in the prisons of Denmark, Hungary, and Croatia. 192 PUNISHMENT AND BEFOBMATION. CHAPTER X. THE ELMIEA SYSTEM. The state of American prisons, twenty-five years ago, was far from satisfactory. The discipline in most of them was either severe to the verge of cruelty, or lax to the point of weakness, according to the ideas and senti- ments of the wardens in charge. The wardens were ap- pointed almost wholly for political reasons, and were subject to change with every alteration in the political complexion of the State governments. Comparatively few of them were really -competent for their position, and they did not, as a rule, remain in office long enough to become thoroughly acquainted with their duties and qualified to perform them. The majority of them openly professed a disbelief in the possibility of convict reformation. The prisons were great manufacturing establishments, operated by prison contractors for per- sonal profit. The State took little interest in the fate of the sentenced, except to insist that they must be made to pay, as nearly as possible, for their own sup- port by their labor. The best warden, in the popular estimation, was the man who could show the best bal- ance-sheet at the end of the year; and the financial test was the principal test of the excellence of prison management. The change which has taken place is largely due to the exertions and influence of the Eev. Dr. E. C. Wines, '■ THE MLMIBA SYSTEM. 193 (he able and devoted secretary of the New York Prison 'Association, by whom the National Prison Association "i was organized, at a Congress held in Cincinnati, in 1870, I from which the era of recent prison reform in America I may be fairly dated. Associated with Dr. Wines was a noble group of men and women, among whom it might (/ be regarded as invidious to name individuals, with one or two exceptions, notably Dr. Theodore Dwight of New York, Mr. F. B. Sanborn of Boston, and Mr. Z. E. Brockway, then of Detroit but now of Elmira. The gentlemen named were all partisans of the Irish system, which they wished to see transplanted, and which they believed it possible to modify so as to adapt it to our political conditions. The creation of the New York State Reformatory at Elmira, in 1869, afforded them the opportunity which they coveted, and it was there that the new prison system about to be described (apparently the coming system of modern civilization) was virtually created. Dr. Wines had been much impressed by the published accounts of the results of the reformatory experiments made by Montesinos in Spain, and Obermaier in Bavaria. Colonel Montesinos was appointed, in 1835, Governor of the prison at Valencia, which was an old Aug^stinian convent containing from a thousand to fifteen hundred convicts. He organized it on the military system, di- viding the population into companies, and appointing prisoners to be inferior company officers. He encour- aged convicts to learn trades, of which he had at one time fully forty in operation at once ; they did all the prison work besides. The workshops cost the govern- ment nothing, and one-half the earnings were appropri- 194 PtrmsBMMN-T AND ttSffOBMATlON. \ \ ated to the support of the prison. There was in thi s prison a school, which boys under twenty were oblige(l i to attend for one hour daily ; and any prisoner abovei m that age, who desired to do so, might join the classes.! With no guards, except a dozen old soldiers, there were! nevertheless few escapes. The great hold which Mon- tesinos had upon his men, apart from his personal char-\ acter and ability, consisted in the fact that they could, by good behavior, reduce the term of their sentence by one-third. The number of recommitments, while he was Governor, fell from thirty-five per cent to a figure which it would be imprudent to name, lest it should not be believed. The law was subsequently changed, so as to require all prisoners to serve their full time, and in an instant the system collapsed. Montesinos resigned ; he was subsequently made Inspector-General of all the prisons in Spain, but he was powerless to reform them. In a pamphlet which he published in 1846, he said : — " What neither severity of punishments nor constancy in inflicting them can secure, the slightest personal interest will obtain. In different ways, therefore, during my command, I have applied this powerful stimulant ; and the excellent results it has always yielded, and the powerful germs of reform which are constantly developed under its influence, have at length fully convinced me that the most inefficacious methods in the prison — the most pernicious and fatal to every chance of reform — are punishments carried the length of harshness. The maxim should be constant and of vmiversal application in such places, not to degrade further those who come to them already degraded by their crimes. Self-respect is one of the most powerful senti- ments of the human mind, since it is the most personal ; and he who will not condescend, in some degree, according to circum- stances, to flattery of it, will never attain his object by any amount of chastisement; the effect of ill-treatment being to irri- THE XLMIRA SYSTEM. 195 tate rather than to correct, and thus turn from reform instead of attracting to it. The moral object of penal establishments should be not so much to inflict punishment as to correct, to receive men idle and ill-intentioned and return them to society, if possible, honest and industrious citizens." Obermaier was made Governor of the prison at Kaisers- lautern, in Bavaria, in 1830 ; in 1842, he was trans- ferred to Munich, where he found between six and seven hundred prisoners chained together, dragging heavy weights, in a state of riotous insubordination, and kept in order by about one hundred soldiers, who were distributed not only on the walls, but in the pas- sages, in the shops, and in the dormitories. In a very short time this wonderful man had gained the confi- dence of his men, taken off their chains, discharged nearly all the guards, and appointed a convict superin- tendent of each of the shops. His success in reforming prisoners was so great, that only about seven per cent of those at Kaiserslautern, and ten per cent of those at Munich, relapsed into crime after their discharge. He was aided by two favoring circumstances, of which the first was that many of the men were sentenced, at that early date in Bavaria, to simple imprisonment for no fixed term; and the second, that there was a thorough supervision of discharged convicts, supplemented by the labors of numerous active prisoners' aid societies. The aim of Sir Walter Crofton in creating the Irish prison system was the reformation of prisoners ; he thus placed himself historically by the side of Montesinos and Obermaier. England, in adopting it, laid too little stress upon its reformatory influence : the main idea of the English penal system is that of repression by ex- 196 PUNISHMENT AND REFORMATION. emplary punishments. The Irish system was much admired by students of penology in various parts of the world, and nowhere more than in the United States. Messrs. Wines and Dwight, in a historically important report made by them to the Legislature of New York, January 8, 1867, on the Prisons and Reformatories of the United States and Canada, said : — " We have no hesitation in expressing the opinion that what is known and has become famous as the Irish system of convict prisons is, upon the whole, the best model of which we have any knowledge; and it has stood the test of experience in yielding the most abundant as well as the best fruits. "We believe that in its broad, general principles — not certainly in all its details — it may be applied, with entire effect, in our own country and In our own State. What, then, is the Irish system ? In one word, it may be defined as an adult reformatory, where the object is to teach and train the prisoner in such a manner that, on his discharge, he may be able to resist temptation and inclined to lead an upright, worthy life. Reformation, in other words, is made the actual as well as the declared object. This is done by placing the prisoner's fate, as far as possible, in his own hands, by enabling him, through industry and good conduct, to raise himself, step by step, to a position of less restraint ; while idleness and bad conduct, on the other hand, keep him in a state of coercion and restraint." It was under the inspiration of this thought, that the New York Prison Association urged the creation, in that State, of an intermediate prison on the reformatory plan. Mr. Brockway furnished a paper ^ for the Twenty- 1 Mr. Brockway's utterance, in this paper, of a desire for the aboli- tion of term sentences, it will be observed, is subsequent to the Eeport of Messrs. Wines and Dwight, in which they had already said : "This whole question of prison sentences is, in our judgment, one ^ THE ELMIRA SYSTEM. 197 fourth Annual Eeport of that Association (1868), in which he said : " Legislation is needed, to abolish the peremptory character of the sentences imposed upon persons committed to these establishments." And again, "Persons whose moral depravity makes them a public offence should be committed to properly organized in- stitutions until they are cured." The Legislature of New York, in 1868, provided for the appointment of a Commission to select a site for a new State Prison. At the suggestion of the New York Prison Association, the bill was so amended as to designate the new institution a Reformatory. The Commission reported in 1869 : — "We propose' to make the sentences (to the Reformatory) substantially reformation sentences. It has been a favorite theory of that distinguished criminal judge and philanthropist, Mr. Recorder Hill, that criminals should be sentenced until they are reformed, which may, of course, turn out to be for life. While we do not propose to recommend this rule in full, we think that it may be safely tried in a modified form. We propose that, when the sentence of a criminal is regularly less than five years, the sentence to the Reformatory shall be until reformation, not ex- ceeding five years." The act establishing the Elmira Reformatory was passed in 1869, one year before the assembling of the Cincinnati Congress, at the call of Dr. Wines, where Mr. Brockway read a paper (somewhat famous in the annals of American prison history) on the proper organi- zation of a prison system for a State, in which he pre- which requires careful revision. Not a few of the best minds in Europe and America have, by their investigations and reflections, reached the conclusion that time sentences are wrong in principle; that they should be abandoned, and that reformation sentences should be substituted in their place." 198 PUNISHMENT AND REFORMATION. sented in germ nearly all the theories as to the nature and needs of the criminal, which he has since wrought into the spirit and life of that institution. In particular he planted himself upon the proposition that " sentences should not be determinate, but indeterminate." Dr. Byers, of Ohio, at the same Congress, spoke in favor of the establishment of intermediate prisons ; and Mr. Sanborn discussed the possibility of introducing the Irish system in America.' The Elmira Prison was built 1 The Cincinnati Congress adopted a Declaration of Principles, in tliirty-seyen paragraphs. In the first, punishment is defined to be " suffering inflicted on the criminal for the wrong done by him, with a special view to secure his reformation ; " and in the second, it is said that " the supreme aim of prison discipline is the reformation of crimi- nals, not the infliction of Tindictive suffering." Other paragraphs are as follows : — " III. The progressive classification of prisoners, based on char- acter and worked on some well-adjusted mark system should be established in all prisons above the common jail. " IV. Since hope is a more potent agent than fear, it should be made an ever-present force in the minds of prisoners, by a well- devised and skilfully applied system of rewards for good conduct, industry, and attention to learning. Bewards, more than punish- ments, are essential to every good prison system. " Y. The prisoner's destiny should be placed, measurably, in his own hands ; he must be put into circumstances where he will be able, through his own exertions, to continually better his own condition. A regulated self-interest must be brought into play, and made con- stantly operative. " VIII. Peremptory sentences ought to be replaced by those of indeterminate length. Sentences limited only by satisfactory proof of reformation should be substituted for those measured by mere lapse of time." In other paragraphs of this remarkable paper, the doctrine is laid down that " In order to the reformation of imprisoned criminals, there must be not only a sincere desire and intention to that end, but a serious conviction, in the minds of the prison officers, that they are capable of being reformed ; " that " a system of prison discipline, to be truly reformatory, must gain the will of the convict;" that TBE ELMIBA SYSTEM. 199 under an act passed in 1870, and subsequent acts, but was not ready for the reception of prisoners before 1876, when a board of managers was appointed, who elected Mr. Brockway superintendent. The first inmates were transferred to it, from the State Prison at Auburn, in July of that year.^ " the prisoner's self-respect should be cultivated to the utmost, and every effort made to give back to him his manhood ; " that " in prison administration moral forces should be relied upon, with as little admixture of physical force as possible;" that "the most valuable parts of the Irish prison system are believed to be as applicable to the United States as to Ireland;" that "reformation is a work of time, and a benevolent regard to the good of the criminal himself, as well as to the protection of society, requires that his sentence be long enough for reformatory processes to take effect." It was at this Congress that President Rutherford B. Hayes, then Governor of Ohio, enlisted for life in the cause of prison reform. Here, too, the steps were taken which resulted in the organization of the National Prison Association and the International Penitentiary Congress. 1 In a work purporting to aim at historical accuracy, and in which an effort is made to show the genesis of the Blmira idea and how many individuals unconsciously co-operated to a common end, due credit should also be given to the Warden of Sing Sing Prison, Mr. Gaylord B. Hubbell, who, in 1865, at his own cost, made a thorough study abroad of the English and Irish prisons. An extended account of his observations and conclusions is printed in the Twenty-second Annual Report of the New York Prison Association, in which he said: " Can the Irish system be adopted to advantage in our own country ? For my own part, I have no hesitation in returning an aflSrmative answer, with emphasis, to this question." He proceeded to sketch his conception of the best method of procedure in the attempt to introduce it, and proposed the purchase of a farm of two or three hundred acres on the line of the Erie railroad, and the erec- tion upon the site selected of a new prison, to be organized in three divisions — each of which should have a special discipline. His first division he would have in solitary or separate confinement; the second division should work in association through the day, but be separated by night — in that the mark system should be in force; jn the third division, with associated dormitories and np wall, all 200 PUNISHMENT AND BMFOBMATION. There is in the organization of this Eeformatory, and in the laws by which it is governed, nothing that is absolutely new. The novelty consists rather in the combination of principles whose validity had been sepa- rately recognized, and in the intense earnestness with which they have been here applied by a man whose enthusiasm for the reformation of convicts has in it a quality closely allied to genius. Somewhat uncon- sciously, perhaps, the methods adopted closely resembled those which had been long in use in institutions for the r-eformation of juvenile offenders. Indeed, it could not well be otherwise, since men are but children of a the arrangements should be such as to give the largest possible free- dom to the inmates. He said: "A careful system of classification of prisoners should be made, based on marks, honestly given accord- ing to their character, conduct, industry, and obedience. For it must be remembered, that a classified system of association without marks, and without impressing on the prisoner's mind the necessity for progressive improvement, is of little value." Again: "All prisoners sent to the proposed establishment should, under proper restrictions, be allowed to work their way out." Once more: " The Maconochie mark system, the gratuities, the school teaching, the library, the course of lectures, competitive examinations, debates, etc., etc., could all be introduced here as well, at least, and in my opinion much better than in Ireland." (The italics are not in the original, but are introduced to show how far Mr. Hubbell anticipated the methods followed at Elmira.) Mr. Hubbell had been influenced by the brothers Hill, who also exerted an influence on the mind of Dr. Wines. They had been influenced by Captain Maconochie, who was Govemor of the Bir- mingham Gaol while Matthew Davenport Hill was Recorder of Bir- mingham. The connection is clear. Mr. Hubbell was in charge of the leading prison of the State of Kew York. Dr. Dwight was vice-president and Dr. Wines secretary, of the New York Prison As- sociation. Mr. Brockway was not a resident of that State, but Super- intendent of the House of Correction in Detroit, Michigan. This was ten years before he was called to take charge of the completed prison ftf IJfflWSr Jji the li^ht of Isipts Jjl^e these, the opening set(tejice oj THE ELMIRA SYSTEM. 201 larger growth, and the methods which succeed at a youthful age, ought with the necessary modifications to succeed, though probably not to the same degree, with older men. The Australian inventions of marks, grades, and the ticket-of-leave, had been accepted by the English Government, which also borrowed from the United States her Pennsylvania system of cellular imprison- ment by day and night for the first stage of penal servitude, and her Auburn system of separation by night only and employment in workshops by day, for the intermediate stage. In Ireland, Sir Walter Crofton went a step farther, and applied a practical test of the Alexander Winter's book, "The New York State Reformatory at Elmira," is not warranted : "In the year 1876 Mr. Brockway, who, up to that date, had been for many years accumulating a wide and comprehensive experience In the administration of prisons, laid before the State Commission appointed for their management and inspection a plan of organization worked out entirely by himself, for the improve- ment and reform of criminals." The statement, a few lines below, " Thus arose the Elmira institution," is not true. Mr. Havelock Ellis does not fall into this error, in his introduction to Mr. "Winter's book, but speaks of " the founders of Elmira," in the plural. He is mistaken, however, in saying, as he does, that they " had no knowledge of the scientific movement that was arising in Europe." (See the critique upon Prosper Despine's "Psyohologie Naturelle " and De la folie au point de vue philosophique ou plus Bpeoialement psychologique," by Dr. Wines in the Princeton Review, May, 1878, reprinted in "The State of Prisons," pp. 641-660.) It is true that the founders of Elmira were not criminal anthropologists in the technical and narrow sense of that phrase; and Elmira was not, as Mr. Ellis claims, " the practical outcome of their studies." All that is fundamental in the Elmira system is wholly independent of the acceptance or rejection of their speculations as to nervous and mental action, heredity, evolution, or the existence and proof of a distinct anthropological type. The attempt to identify the two is an injury and not a benefit to the cause of prison reform, because it awakens prejudice against it in the minds of many who would other- wisp be its fyieifda. It is, mpreoyer, wUoUy needless, 202 PUNISHMENT AND BEFOBMATION. fitness of Ms men for conditional liberation, before granting them a ticket-of-leave. This consisted in em- ployment in a condition approximating complete free- dom. All of these ideas were imported from Australia and Great Britain into the Elmira system. They con- stituted, in fact, its base ; but there was added to them another, which gave to the whole a wonderful vitality, and which is really the distinguishing feature of the system, namely, the so-called indeterminate sentence. At this point, it is necessary to interject into the argument some observations concerning reformation and the means by which it can be effected. What constitutes reformation ? Not necessarily re- ligious conversion. Reformation may stop far short of that, and yet be such a change of habits and character as to satisfy all reasonable legal or sociological expecta^ tion. On this point, the Reverend Mr. Burt, chaplain of the Pentonville prison, has pertinently remarked : — " The result aimed at by a penal code is attained when, by whatever motive, the criminal is induced to restrain his vicious propensities within the limits which the law prescribes. Three influences, more or less distinct, may operate in producing this result. It may be one effect of religious conversion ; it may arise from a general amelioration of the moral character; or it may be the result of prudential consideration, of intimidation, or of fore- thought. It is not often, I apprehend, that actual reformation can be exclusively referred to any one of these causes. The several influences usually co-operate, and one passes insensibly into another, though in different cases different motives predomi- nate. In any case, however, the result is reformation." He adds : — " In the reformed criminal it would be unreasonable to expect impeccable piety or stoical fortitude | enough will have been TBE ELMIBA SYSTEM. 203 effected to merit the title of reformation, when the once habitual offender exhibits an average standard of virtue, under an average pressure of temptation." For the purposes of the government, a criminal is reformed, who does not require to be rearrested, retried, and again incarcerated for some new violation of the criminal law. The agencies by which this result is attained are three, namely, labor, education, and religion; and they correspond to the analysis of human nature as physical, intellectual, and moral. But the unity of human nature is such, that any influence which affects an individual in any part of his being affects directly or indirectly the whole man. And the relation between religion, labor, and education is so intimate, that they almost seem at times to be different names for the same thing. Labor and religion are both educational agencies ; neither in- tellectual nor ethical development is possible without labor, and religion demands of every man, that by train- ing and effort he shall make the most of himself, and do the most for the world, that the extent of his talents will permit. Of these three, it is probable that the most certain to secure from every prisoner some measure of response is labor. Labor, if real and productive, is not only a means of bodily health and strength, but it compels thought, thus awakening and moulding the mind, and in many ways it reacts favorably upon the moral char- acter of the workman. The abolition of prison labor, which, in their ignorance and greed, largely at the instigation of their employers, so many members of the trades-unions demand, (on the double ground that 204 PUmsBMENT AND HSFOSMATION. convict and free labor are antagonistic, and that com, petition with the former is a degradation to the uncon- victed), would throw our prisons back to the state in which they were, three or four centuries ago. The laboring class (if it is proper to speak of working-men as a class) would gain nothing by the change, since they would then have to support prisoners in idleness, at the cost of the public treasury. Prisoners, if unconvicted, would be compelled to enter the labor market : how does conviction for crime deprive them of the natural right to live by their own exertions ? And what excuse has the government to offer for preventing them from earning their own support, and for levying contributions upon the innocent, to keep the guilty from starving ? It has been repeatedly shown, by actual computation, that the competition of convict labor in the market is so small in comparison, as to exert no appreciable effect upon the demand for labor or upon wages. It may affect certain trades; and the policy of the authorities should be to select industries in which such competition is least, and to diversify to the largest practicable ex- tent the industries pursued in prisons. But some degree of rivalry of interest is inevitable, whatever we may do ; for anything that prisoners do might be done by outside labor, — even roadmaking or the manufacture of supplies for public institutions, both of which are just now rather popular fads. It is a strong phrase, but the consequences to the public of the forcible stop- page of labor in prisons must sooner or later be of such a serious nature, that it is not too much to say that the man who favors so violent a measure is an unconscious enemy of mankind. The reformatory influence of labor. TBE ELMIRA SYSTEM. 205 even in prisons which are managed for profit, and where the profits inure largely to contractors and not to the State, is so potent, that of men committed to an ordi- nary American penitentiary it is safe to estimate that one-half do not, after their discharge, relapse into crime. Labor needs, however, to be supplemented by edu- cation in the common acceptation of that word, meaning development by educational processes skilfully applied to the training both of the head and the hand. Sta- tistics prove that the number of prisoners without any trade education is greater than of those without a common school education. Some prisoners are highly educated men, but their number is relatively small. Owing to the division of labor in manufactories, a trade education is not necessarily obtained in the shops, hence the establishment of trade-schools in prison is desirable, on account of the opportunity which it affords of giving to prisoners such a knowledge of the use of tools as will qualify them for useful and profitable employment upon their discharge. The utility of literary and scientific teaching in prison, by lectures, books, and classes, con- sists not merely in the improvement of the mind, but in its occupation and diversion, that it may not be given over to introspection, vain regrets, impure imaginations, bitterness, and the planning of fresh criminal enter- prises. It should not, therefore, be confined to element- ary instruction in reading, writing, and arithmetic, but mental food should be provided for all tastes and capacities represented in the prison population at any given time. The old story is here in point of the Quaker visitor who said to an embittered convict, " Friend, thee should have better thoughts," to which 206 PUNISHMENT AND BEFOMMATION. the prisoner replied, " Where shall I get them ? " The positive value of education to the prisoner must not, however, be overlooked, especially on subjects concern- ing which (largely from the want of proper instruction) he is apt to cherish perverted notions. Pour topics should be given a prominent place in the prison curric- ulum, namely: the principles (1) of law, generally, as a rule of conduct, and specifically, in its relation to crime ; (2) of civil government, its necessity and utility ; (3) of political economy, especially in its bearing upon the labor question and the means by which property is legitimately accumulated ; (4) of practical ethics, or the mutual rights and obligations of men living in the social state. In this connection, the following remarks by Mr. Michael Davitt are worthy of reproduction here. He expresses the opinion founded on his personal observa- tion as a political prisoner, that " direct Scripture or moral teaching, either through religious works or the labor of prison chaplains, is all but useless with crim- inals." On the other hand, he believes that " no more efficacious reforming medium — apart, of course, from in- dustrial occupation and habits — could be employed for the reclamation of all that is reclaimable in criminal lives, than a judiciously stocked prison library, in which the moral-teaching and wrong-punishing description of novel should be largely represented." He adds that " it is only what prisoners read, between labor hours in prison, that can come between themselves and their thoughts of crime past and reveries of criminal deeds to come." No less important, certainly, is it to reach the heart THE BLMIBA SYSTEM. 207 and touch the conscience of all who are susceptible to religious influence. The great Italian poet has shown by appropriate and impressive imagery the truth that there are three spiritual states in one of which must be found every human soul. The first is that in which the soul is in love with evil, does not perceive it to be evil, and attributes the pain which it endures to every cause but the right one — the return of an evil deed upon the doer of it. This is hell. The second is that in which the soul has recognized its sin, seeks to escape, and welcomes the pain of repentance as a purifying, purgatorial fire. Finally, having struggled with itself and gained the victory, having overcome the power of self-love, which creates discord between sister souls and between the soul and God, it accepts the divine order, the human and the divine wills come into sweet accord, and at last it reaches the state of paradisaic rest and everlasting joy. There are multitudes of convicts who, in Dante's sense, are still in hell : how are they to be delivered ? Born without moral sense, or having impaired, if not destroyed, the faculty of conscience, by its neglect or abuse, they are spiritually blind to the true nature of their own actions and relations. It seems a hopeless task, to renew in them the faculty of moral insight. Yet it must be undertaken, and for its accomplishment our hope is in God, the creator and the re-creator of the spirit that is in man. Physical and intellectual culture may contribute to the end in view ; but without the appeal to conscience, in the name of God, without picturing to the tempted the parting of the ways which lead to death or to life, without holding before their minds judgment and mercy, destruction and 208 PUNISSMENT AND BEFOBMATION. forgiveness, and urging them to decision, in the light of eternity and of their personal accountability to the Judge of all the living and of the dead, the central spring of moral activity will not have been reached, and any reformation which may take place will be super- ficial or evanescent. An American prison chaplain, comparatively new to the duties of his position, was sneeringly asked by an officer how many of the prisoners he had converted by his ministrations. He replied, " The same percent- age, I think, as of the prison officials." If the relation of the foregoing observations to the indeterminate sentence is not self-evident, it can readily be made apparent. Crime is the measure of the crim- inal's opposition to social institutions and of his inca- pacity to adapt himself to them. If the institutions happen to be wrong, he may be right ; but he must bear the consequence of his deed. What society demands of him is submission. The discipline of the criminal law is designed to subdue or convert his will, so as to make it conform to the will of the social whole. Subjugation was the old idea ; conversion is the new. The effort to break a prisoner's will proceeded on the theory that he was a man of exceptional strength, and dangerous for that reason; the effort to enlighten and persuade it assumes that precisely the contrary is the truth, that the criminal is an exceptionally weak man, incapable of self-direction and self-control, to whom it is necessary to impart power, but power for good, not for evil. He therefore needs to be studied in a state of incarceration, to discover what is his special weakness, whether it is in his physical, mental, or moral constitution, in order TBJE BLMlltA SYSTEM. 209 that the treatment to be given him may correspond to his actual condition and needs. But no treatment will produce the best result, unless the consent and co-opera- tion of the criminal patient are secured. For this an adequate motive, to which he will be likely to respond, is essential. The average criminal is an egotist, who has more faith in his own perverted instincts than in the advice and assurances of wiser and better men ; he is a creature of habits which he cannot easily shake off ; he does not want to be morally awakened and renovated ; he sets himself in opposition to every influence which will elevate him and make him ashamed of his past and sorry for it. Ordinary persuasion is for the most part thrown away upon him. The only motive which is sure to affect him, in proportion to his intelligence, is the hope of freedom. That hope springs eternal in the con- vict's breast, but it ordinarily assumes the form of vague expectation of a pardon, or of a favorable chance to escape. If he can be convinced that these anticipations are fallacious, but that he will be released as soon at it shall become apparent to the officers who have him in charge that society has no longer anything to fear from him, and that he can convince them of this fact by his own conduct in prison, from that moment his will is gained, and the rest is comparatively easy. As Maco- nochie expressed it, "When a man keeps the key of his own prison, he is soon persuaded to fit it to the~ lock." The indeterminate sentence, therefore, puts into the hand of a competent and devoted prison superintendent the precise lever that he requires, in order to subvert the criminality of the convict, assuming that it can be 210 PUNISHMENT AND REFORMATION. subverted. It is merely a tool. It is of no value if not used, or in the hand of a man who does not know how to use it. It has in itself no reformatory power ; it is a dead thing. The real power is in the reformatory agencies which have been named — labor, education, and religion. These, if applied, will produce the same effect under a definite as under an indefinite sentence : the difference is that, under the latter, the prisoner ceases to resist their application, and may even be induced to apply them to himself. It puts him in the most favor- able attitude to be operated upon, in the condition most favorable to a cure. The history of the evolution of the conception of the indeterminate sentence is interesting and instructive. Punishment must be admitted to be a natural reaction against wrong. In the early stages of social evolution, when the retributory principle was uppermost in the thoughts of men, retribution meant the return to a private or public enemy of an exact equivalent for the injury suffered at his hands ; and in an exact equivalent there was no room for variation within specified limits. When composition of injuries was admitted as an indi~ rect mode of retaliation, more satisfactory on the whole to both parties, the substitute payment to be made by the offender to the offended party was a matter of bar- gain between them, and the sum to be paid a fixed sum, which could be neither increased nor diminished. When the State took the regulation of private quarrels upon itself, it inflicted upon the guilty the penalty of death, which was a fixed penalty, or usually some other def- inite amount of loss, like the loss of a finger or an eye, or the infliction of a given number of stripes. Eiecur THE ELMIRA SYSTEM. 211 for a moment, too, to the slow growth of political in- stitutions, the division of power first between the execu- tive and legislature, then the development of courts out of legislative committees, resulting at last in the separa- tion of the judiciary. Remember that imprisonment was not itself a penalty for crime, until within a very recent period in the history of the world. Imprison- ment, like torture, is an elastic penalty, capable of abbreviation or prolongation. Discretionary power to terminate it at some fixed point must be lodged some- where. At first, this power was retained and exercised by the legislature. Absolute penalties were the rule — definite terms of imprisonment fcr specific acts, regardless of extenuating or aggravating circumstances ; or an attempt was made in the code to define and estimate at their true value such circumstances. All early criminal codes were fixed codes, with fixed penalties. The evil of fixed penalties, however, can never be long hidden, even from averted eyes. Especially clear is the impossibility of such foresight on the part of the law-making body as will enable it to apportion punish- ment adequately and justly, in accordance with the many varying degrees of guilt, estimated by the double standard of the culprit's intention and the amount of the injury done. We find, therefore, the evidence of a certain shrinking, on the part of legislatures, from a task for which they feel themselves incapable, in the attribution by them to the criminal courts of large dis- cretionary powers in the infliction of punishment, within certain prescribed minimum and maximum limits. In tbi§ country, at least^ the growing tendency of legis- 212 PUNISHMENT AND REFORMATION. latures is to reduce the maxima and do away vritli the Tninima. The question now arises, how have the courts ac- quitted themselves, in fact, of this responsibility ? The difficulty has not been gotten rid of ; it is only removed. It was supposed, no doubt, that judges, with all the evidence before them, could make tolerably correct estimates of guilt and suffering, and that they could apportion the one to the other with sufficient accuracy to insure, in most cases, some degree of approximation to equivalence between the two. Has this expectation been realized ? It is susceptible of demonstration that it has not. It was an unreasonable expectation at best. Admitting for the moment that a correct human meas- urement of guilt or of suffering is possible, was it to be expected that the most protracted and searching criminal trial would reveal all the attending circum- stances of each criminal action — the precise degree of the prisoner's legal and moral responsibility, meas- ured by his ability to characterize his own conduct and to control it, or by the peculiar stress of temptation or provocation under which the act was committed ? the precise degree of the injury done to individuals and to the community ? the exact menace to society in- volved in a merciful sentence ? If not, (and still more, if the judge should prove to be impulsive or fickle in his temper, or if the jury and not the judge should be entrusted with the determination of the length of sen- tence), how could the grossest inequality and even in- equity in the apportionment of punishment to different individuals be avoided ? It has not been avoided. The experience of 3,!! prison offic?r§ ^ffor^s countless illus? THE ELMIRA SYSTEM. 213 trations of the glaring contrasts between sentences pro- nounced for the same or different offences upon prisoners convicted in different courts, or in the same court on different days; contrasts most exasperating to such sense of justice as is found in the breasts of convicts, and calculated greatly to diminish their respect for law and therefore their disposition to obey it. One in- stance, in the State of Illinois, will serve by way of illustration, instead of thousands, where two juries sat upon the case of two burglars convicted separately of robbing the same store on the same night, in partner- ship with each other, and one of them was sent to the penitentiary for one year, the other for three years. But more striking still is the evidence accumulated in the Eleventh Census of the United States as to the inequality in sentences in different States, often ad- joining each other and alike in all essential political and social conditions. The average sentence in one State, for all offences, has been proved to be more than double that in another; and the want of congruity in sentences for different crimes, in detail, in different localities, is amazing to contemplate. It does not seem to be the fault of the codes, so much as of the courts, if it is a fault. But, upon its face, it is the condemnar tion of the entire system of fixed sentences for particu- lar criminal acts. All definite sentences may be assumed to be unjust, either by way of excess or of defect. They are also inexpedient. Short sentences fail in many cases to make any impression other than one of indifference to imprisonment: they beget a class of minor recidivists Jjijown as rounders or repeaters or revolvers, vbo ar? 214 PUNISHMENT AND REFORMATION. continually in and out of prison, which becomes their principal place of abode. A man named " Silly Kelly " died in Edinburgh, in 1872, at the age of eighty-two years, who had been convicted of drunkenness and other petty offences three hundred and fifty times ; it was estimated that he had spent more than forty years of his life in prison. Mr. Frederick Hill has officially re- ported the case of a man in Scotland, who was convicted more than one thousand times. The superintendent of the New York City Workhouse, on Blackwell's Island, once said to the author of this book, " We have pris- oners who are repeatedly committed, on the charge of drunkenness, for the uniform term of thirty days. When their term expires, they return to the city, im- mediately proceed to drink again to intoxication, and are recommitted on the day following. Our guards are allowed, by our rules, one day off each month; and, really, the only difference between the guards and the prisoners, in this respect, is that the latter are locked up, while the guards are not." Long sentences, on the other hand, especially life sentences, depress the convict too much, by depriving him of any well-founded expec- tation of any end to the weary routine of a life without object or stimulus, except in the grave. Definite sentences are never reformatory, since they are in fact retributory, and are founded on the character of the act, which is past, having occurred prior to the sentence, and is therefore irrevocable. Reformatory sentences can be based only upon the character of the actor, which it is desired to correct, but the time re- quired to alter it cannot be estimated in advance, any more than we can tell how long it will take for a lunatic THE ELMIRA SYSTEM. 215 to recover from an attack of insanity. There is an analogy between crime and insanity, which may be pushed to an extreme, yet is useful for our present purpose.^ 1 The analogy between crime and insanity was the theme of an ex- temporaneous address made by the author, in 1886, to the inmates of the Elmira Reformatory, of which the following were the heads: — 1. The basis of insanity is physical, its manifestations are physical, mental, and moral. The same is true in large measure of criminal propensities. 2. Insanity and crime are both hereditary — to what extent is not definitely known. The predisposition to both is often congenital. 3. The approach of insanity and the growth of criminal character are alike gradual, in many instances, and unsuspected by the victim of either. 4. The change from innocence to depravity corresponds with the alteration in personal character observable in the insane. 5. The lunatic and the criminal both form theories, to account for the perversion of which they are more or less conscious, which are very far removed from the truth. ^ 6. The manifestations of insanity assume one of two opposits forms — undue exaltation or undue depression; in either form they present the appearance of a pronounced self-consciousness, amount- ing to egotism, and often accompanied by hallucination or delusions. In this particular the resemblances between insanity and crime are striking. 7. As insanity tends to make progress and to end in dementia, so does the habitual criminal sink into moral imbecility — the complete loss of moral perception, depravation of moral tastes and inclinations, and paralysis of volition. 8. Insanity and crime are both the occasion of intense pain, suc- ceeded by insensibility or indifference. 9. Both incapacitate their subjects for normal social life; and both are treated by incarceration, if of a dangerous or troublesome type. The motive of such treatment is twofold, the cure of the patient and the protection of the community. 10. The cure of either is difficult: much depends on beginning in time, and, for success in the effort to develop the power of self- restraint or self-direction (which may have been originally lacking, or lost by disuse or abuse), the co-operation of the patient is indis- pensable. 216 PUNISHMENT AND REFORMATION. Except upon tiie theory of retribution, why should a criminal be sent to prison for a definite period of time, any more than a lunatic to a hospital for the insane ? Is the protection of society more effectually secured by an unsuccessful attempt to satisfy an ab- straction, or by the seclusion of a dangerous element in the community until the convict, in the judgment of experts, who have him under constant and prolonged observation, has ceased to be such ? As to the retrib- utory theory of criminal law, it need only be said that crime and penalty cannot be adjusted to each other, unless we first find some accurate measure of guilt on the one hand and of suffering on the other, which seems to be impossible. Kegarded in this light, the whole present basis of the criminal law appears to be unsound — ethically, medi- cally, and legally : the verdict of the three learned pro- fessions against it, when finally delivered, will probably be unanimous. The alternative, if imprisonment is to be retained as the only secondary punishment, (for fines, though they are theoretically an alternative form of punish- ment, are commutable into equivalent terms of impris- onment), is the substitution of indefinite for definite sentences. Archbishop Whately said, in a letter to Earl Grey, in 1832 : — " It seems to me entirely reasonable that those who so conduct themselves, that it becomes necessary to confine them in houses of correction, should not be turned loose upon society again, until they give some indication that they are prepared to live without a repetition of their offences." THE ELMIRA SYSTEM. 217, Maconochie agreed with Whately in his pref^ence for task sentences rather than time sentences,^,a6d gave his reason in the following words : — ,,'' " The purpose of this is to make the man's liberation, when he is once convicted of a felony, depend upon the subsequent character and conduct evinced by him, rather than on the origi- nal quality of his offence." The first voice, however, raised in favor of distinc- tively reformation sentences was that of Mr. Frederick Hill, Inspector of the Prisons of Scotland, in the follow- ing words, in a report made by him in 1839 : — " As regards the question, how are convicts to be disposed of after their release from prison, supposing transportation to he abolished, I would humbly suggest that it is desirable that those whom, from the nature and circumstances of their offences, as shown upon their trial, there can be no reasonable hope of re- forming, should be kept in confinement through the remainder of their lives; the severity of their discipline, however, being re- laxed In various ways, which would not be safe, were it intended that they should return again to society." ^ His brother, Matthew Davenport Hill, the eminent Recorder of Birmingham, reduced this principle to the epigrammatic formula, " Reformation or incapacita- tion," meaning thereby that if a prisoner fails to re- form, under proper influences, and remains a peril to social order and security, he should be held for life.^ 1 In Mr. Frederick Hill's book on " Crime," (1853) he refers, in a ners, and a good deal of actual fraud. It is im- possible to furnish occupation in these minor prisons, other than the cleaning of the jail and similar petty domestic service. The majority of them are badly planned and badly built — cellars under the court-house, or if not, they are apt to be dark, foul, cold in winter, hot in summer, destitute of suitable sewerage and water- THE OUTLOOK. 315 supply, cramped, unhealthy, and so arranged that two or more prisoners occupy a common apartment. They are insecure, and escapes are frequent. Often they lack any provision for classification of prisoners, even for the separation of the sexes. In the best of them, with few exceptions, free association, at least in the corri- dors, was the only thought of the architects who designed them; and in some of those constructed with a view to complete isolation of the inmates, the sheriff in charge refuses to enforce it. They are nurseries of crime and of vice, plague-spots, which demand complete suppression. The system should be at once abandoned and replaced by one more rational and more responsible. Isolation is also indicated as a desideratum, in many instances, for felons in our adult reformatories and penitentiaries, particularly at the beginning of their term of incarceration, or at a later period, when they prove stubbornly rebellious and irreclaimable. The organization of prisons is susceptible of great im- provement, especially in the medical department and in the work of the chaplain and schoolmaster. The war- den of a penitentiary represents law, the physician science, and the chaplain religion. It requires all three, to exert the most complete influence over the convicts and to secure the best attainable results. These three officials should constitute a trinity, with one mind, heart, and purpose ; they should work together for the attain- ment of a common end ; their duties, rightly conceived, cannot clash ; and they should be on more nearly a level, in point of dignity and authority. Where a chaplain is merely tolerated, he or the warden is unfit for his posi- tion. The physician should preferably reside in the 316 PUNISHMENT AND REFORMATION. prison and give his entire time to the discharge of the duties of his office, which include much more than the mere prescription for the sick and attention to sani- tary conditions. The physician and chaplain are the right and left arm of the warden who estimates aright the services which they are capable of rendering; it would be equally wise to abolish the quartermaster and the commissary in the organization of an army. They are or should be his confidential friends and advisers, his council, subordinate to him in rank, but personally his equals and admittedly entitled to every courtesy as such. In a country like ours, with a mixed population and no established church, the religious needs of prison- ers of differing religious faiths, with diverse forms of worship, can only be supplied by the ministration of pastors of the same belief with themselves, and provis- ion should be made for such ministration. If any clergyman not officially connected with the prison ad- ministration presumes, however, upon his privileges and interferes with the discipline or undertakes to dictate to the warden, there is but one remedy — to show him the door. Greater attention needs to be paid to the selection, instruction, and discipline of the inferior officers and employees. They should never be appointed, retained, or discharged, for purely political reasons. Since the aim of an ideal convict treatment is the pro- motion in the prisoner of the healthy growth of normal talents and propensities to the exclusion of the abnor- mal, the aliment necessary for such growth must be sup- plied in adequate amount, both for the body and the mind. For the body the requisites are food and exer- THE OUTLOOK. 317 else : an ample and nutritious diet - — starvation, for tlie sake of punishment, is a scientific anachronism, in this nineteenth century ; and exercise which is useful, pro- ductive, easily within the prisoner's capacity, and suffi- ciently interesting to secure his mental attention. Here the physician can aid materially in the process of de- velopment by closely watching the effect upon each in- dividual of his diet and occupation, and advising such changes as, in his medical judgment, will promote the end in view. His records of experiments in this direc- tion and their results, if judiciously and faithfidly kept, will prove of value to science and to sound prison dis- cipline. The provision of food for the mind devolves usually, under the direction of the warden, upon the chaplain. To him is entrusted the oversight of the schools, the care of the library, and the direction of the public exercises in the chapel. A competent and faithful chaplain can relieve a busy and overworked warden of much care and labor, if he deserves his con- fidence and has it, which of course he cannot have, un- less he works in subordination to his superior officer and in harmony with him. In the choice of occupations for individuals, due re- gard must be paid to their personality, also to the prob- able effect that their assignment to a special form of labor will have upon them after their discharge, in aid- ing them to secure congenial and remunerative employ- ment. There is danger, on the part of the author, in going too deeply into details of prison discipline, and this line of remark will not be pursued farther. But these are illustrations of the spirit which it is desirable to infuse 318 PUNISHMENT AND REFORMATION. into the management of penal institutions, and of the ways in which that spirit will manifest itself, where it is present. This is the general direction which the improvement of our prisons must take. The amelioration of the criminal code and the amelioration of prison discipline go hand in hand, with equal step. They have the same basis and the same aim. They rest upon the conviction that the criminal is a fellow-man, whose rights can- not be violated with social impunity ; that he is to be uplifted and restored, not crushed — better kill him outright, than reduce him to a state of imbecility by slow but sure degrees, exciting him to resistance and then subduing his resistance by violence. The criminal law, seeing the criminal deed, seizes the doer of it (but without pronouncing a moral judgment upon him, which it is incapable of doing), and, for the protection of society, it places him where he can do no harm, but where, if amenable to treatment, he may hope to be benefited. It does not, however, in advance of any thorough investigation into his antecedents and con- stitution or habits, rashly prescribe the specific remedy applicable to his case, nor the exact date at which it is to be discontinued, prior to any reasonable expectation of a cure. Having committed him to the hands of an expert in criminal therapeutics, selected by the State on the ground of his known and proved qualifications for the place to which he is appointed, and responsible to the State for the faithful and successful discharge of his responsible and delicate functions, it insists that he shall be subjected to the treatment approved by this expert, and by other experts in the same line, until, in THE OUTLOOK. 819 his or their judgment, all has beeu done for him that can be done. If the degeneracy apparent in him is congenital and profound, the treatment, however skil- ful, will end in failure. Criminals of this type are in the minority. The majority of them are susceptible of improvement under discipline, and will respond to it, if it is wisely adapted to their individual peculiarities (which must therefore be carefully studied), and if there is no relaxation of it before it has had the necessary time to accomplish the desired result. Too much must not be expected of it, nor equal benefit in all cases. It is enough, if it has the effect to put its subject in such a condition that he can live and act in the social state without serious liability to relapse into crime. The adoption of this method of dealing with crimi- nals by the substitution of a reformatory for a penal discipline, presupposes that the authority by which it is exercised is competent, which means a great deal. It means high moral character, earnestness, devotion, self- sacrifice, rare intelligence, insight into human nature, tact, tenacity of will, experience, patience, and hope. The head of a reformatory institution must be worthy of trust, and he must be trusted — and sustained. As to the incorrigible, nothing of value is gained by threatening them with life-long incarceration, if they do not exercise a resolution of which they are incapable, and yield to influences to which there is nothing in them which responds. It is desirable, if the form of their criminality is dangerous to themselves or others, to hold them in custody, for the protection of society ; but not otherwise. They should not be retained in the reformatory, but provision should be made for them 320 PUNISHMENT AND REFORMATION. elsewhere. The disposition to be made of them is a separate question, with which the question of the corrigible need not be complicated. The corrigible, having undergone a sufficient term of imprisonment to satisfy the deterrent aim of the law, should then, if ready for their discharge, be released, and whether this is so, the head of the establishment is the only competent judge. It has taken the world a long while to develop this conception of criminal law. Indeed, it is yet foreign to the thoughts of the mass of mankind. But, once lodged in the mind, it cannot be dislodged. It agrees with the teachings both of science and religion. It contradicts no principle of justice. It is humane. It solves a great number of perplexing doubts, which the old system could never satisfy. It rests upon an accurate analysis and synthesis. There can be no doubt, in the minds of those who have grasped and accepted it, of its universal adoption, so soon as it is generally understood, and whenever the average intelligence and morality of the community shall reach such a point of elevation as to supply the necessary conditions for its successful operation. It is the culmination of the experience of mankind. One final thought. Too much use is made of the prison. Multitudes of convicts are in confinement, whose release would work no possible harm to society, and who deteriorate in prison, but would profit by free association with their kind in every-day life. They have not been wrongfully convicted, but they are needlessly held. The prison has done all for them that it can do. There are others who, having been convicted, would THE OUTLOOK. 321 have been more likely to amend their ways, if never incarcerated. Many men on the outside have com- mitted the same acts, with no higher motives, but are respected, useful, and happy, because the criminal law was not brought to bear upon them. Those most famil- iar with crime, criminals, and prisons are least willing needlessly to jeopard the entire future of an occasional offender, especially in youth, by his arrest and prosecu- tion, so long as there is any reason to believe that he can be turned from evil courses by less stringent and irrevocable means, which do not involve lifelong dis- grace. It has been well said, that the prison will never fulfil its own highest purpose, until it shall have put an end to the necessity for its own existence. The aboli- tion of the prison (but not until there ic no longer any need for it) is the dream of the prison reformer. Not that he has any immediate expectation of the realization of what he trusts may prove, to some far-off generation, to have been a prophetic vision. But there are many cases in which police surveillance might perhaps be substituted for it, and that in the near future. And one reason for the adoption of the indeterminate sen- tence is that it seems, to the eye of faith, to be a step in the direction of this lofty ideal. INDEX. Abjuration, 162. Abnormal, the, 24, 254, 260, 312. Abolition of the prison, 320. Abraham, 21, 26. Achan, 51. Achilles, shield of, 36. Adoni-bezek, 70. Adultery, 29, 82. .^schylus, 65. -^sop, 67. ^thelstan, 65. Afforoement, 46. Age of criminals, 296. Agrarian crimes, 293. Alaska, 180. Albigenses, 94. Alboize et Maquet, viii. Albrecht, 260. Alby, siege of, 94. Alcibiades, 85. Alexander the Great, 70. Alfred the Great, 37. Algiers, 172. Allegheny, 153. Altruism, 271, 290. Amende honorable, 87 (note). American Revolution, 8, 133, 142, 163, 180. Amsterdam, 115, 117. Amusements, popular, 276. Animals, sentenced, 104. Anthropological type, 24, 201 (note), 230, 256, 296. Anthropology, criminal, 8, 201 (note), 229-265, 284. Anthropometry, 264. Antiochus, 63. Antoinette, Marie, 82, 110. Aniichin, Governor-general, 178. Apega, 69. Apis, the sacred bull, 15. Apocrypha, 63, 67. Arbitration, 293. Architecture, prison, 117, 134, 141. Arch street jail, 142 (note). Arena, 68. Arenal, Madame, 262. Argot, 243-245. Aristides, 85. Aristotle, 120. Arrests, 43. - Arson, 51, 106. Artaxerxes, 69. Asohrott, Dr. P. F., viii. Assignment of convicts, 168, 169. Assize, bloody, 130. grand, 47. Taunton, 131. Assyria, 29. Asymmetry, 232, 257. Atavism, 246, 247. Atheism, 51. Athens, 15, 39, 62, 68, 74, 78, 85, 88. Attainder, 78, 79. Aubriau, Hugo, 109. Auburn prison, 199. system, 8, 122, 132, 135, 149, 150, 151, 154, 160, 161, 182. 323 324 INDEX. Audiences of^ monition, 99. Augurs, Eoman, 28. Augustine, St., 93, 120. Augustus, Emperor, 89. Australia, 8, 161, 163-171, 183, 184, 201, 202, 221, 222 (note). Austrian penal code, 146. Auto-da-fe, 52. Avenger of blood, 34. Babylon, 51. Bachelorhood, 18. Bachelors, punished, 18. Baehr, von, 29. Bagnes, 173, Balzac, 243, 244. Bambridge & Corbett, 129. Banishment, 7, 84, 87 (note), 98. Barbadoes, 163. Baron Trenck, 113. Bartholomew, St., massacre of, 110. Basle, 115. Bas-reliefs, prison, 117. Bastille, 57, 109, 111, 125. Bastinado, 77. Battle, wager of, 46. Bavaria, 195. Bayrenth, 116. Beards, 234. Beatrice Cenci, 55. Beaumont and De Tocqueville, 154. Beccaria, 7, 93, 125, 126. Bedford gaol, 123. Beer in prison, 128. Beheading, 53. Begging, licensed, 114. Belgium, 116. Beltrani-Scalia, Martino, viii., 136. Benedikt, 229, 232, 233. Benefit of clergy, 75, 105. Benhadad, 63. Bentham, Jeremy, 140, 284. Berne, 115. Bertillon, Dr. Alphonse, 265, 305. Bicdtre, 58, 111. Bigamy, 66. Biology, 4, 24, 229, 246. Birmingham gaol, 188, 200 {note). Bishop of Ely's prison, 127. Bishop of Bochester's cook, 65. Blackmail, 40, 156, 304. Blackstone, 148. Blackwell's Island, 214. Blasphemy, 15, 51, 74. Bligh, Captain, 167. Blood, avenger of, 34. circulation of, 18. corruption of, 79. feud, 33. Bloody assize, 130. Mary, 52. Bodoveresta, 66. Boiling alive, 65. Bokhyt and Djolan, 35. Bonaparte, Prince Roland, 232. Boniface VIII., 121. Bonneville de Marsangy, 218. Boot, the, 91. Bordeaux, Parliament of, 103. Boston Prison Society, 151. Bot, 37, 38. , Botany Bay, 164. Bowstring, 63. Branding, 70, 74, 75, 87 (note), 106, 145. Brank, 82. Brawlers, 75. Bray, Dr. Thomas, 144. Breaking on wheel, 61. Bremen, 115. Breslau, 115. Brest, 123. INDEX. 325 Bridewells, 114, 124, 128, 129, 154 (note), 181. Brisbane, General, 168. Brookway, Z. B., 193, 196, 197, 200 (note), 219, 223 (note). Brooks, Phillips, 228. Brotherhood of the Cross, 98. Bruchsal, 115. Bnmehilda, 60. Brussels, 116. Bunyan, John, 83, 123. Burckhardt, 35. Burning, 51, 95, 97, 103, 152. Burt, Chaplain, 202. Burying alive, 64. Butler, Bishop, 144. Buxton's Inquiry, 129 (note). Byers, Dr. A. G., 198. Cachet, letters of, 109, 111. Caesar, 51. Cain, 32. Caine, Hall, 81 (nate). Calvin, John, 62, 286. Calvinism, 286. Cannon, Wowing from, 69. Cantii, Cesar, viii. Canute, 70. Capital and labor, 275. punishment, 60-69, 142. (See death penalty.) Carcan, 80, 81, 87 (note). Career, etymology of, 107 (note). Carthage, 18, 66, 67, 69. Cat, the, 76. Catechumens, 119. Causes of crime, 266-280, 292. Cazilda, 95. Celibacy, 18. Cells, 122, 138, 144, 148, 153, 182. Cenci, Beatrice, 55. Census, 213. Ceremonial, 37. Chains, 111, 127, See Irons. hanging in, 83-84, 152. Charles I., 55. II., 72, 162. v., 89. Chaplains, prison, 119, 208, 315. Charity, private, 297. Chatham, 183. Cherson, 124. Child labor, 298. saving, 10, 274, 297-298. Children and the State, 297-300. institutions for, 300-304. placing out, 301, 303. China, 53, 63, 66, 68. Christian Knowledge Society,144. Chummage, 128. Church's peace, 34, 43. Cincinnati Prison Congress, 197, 198 (note). Cipher, prison, 158. Citizenship, 297. Civic degradation, 78. Civilization, 275, 276. Clans, Scottish, 26. Clarence, Duke of, 64. Clarendon, Lord, corruption of, 129. Clarke, Marcus, 171 (note). Classification of prisons, 119. prisoners, 117, 119, 138, 149, 249, 315. progressive, 221. Clearing gangs, 168, 183. Clement V., 93. XI., 116, 121. Clergy, benefit of, 75. Clinics, criminal, 261-263. " Code des prisons," viii. penal, Austrian, 146. French, 13, 87 (note). Theodosian, 51. 326 INDEX. Coldwater, State school, 302. Collins, Colonel, 167. Colorado, 130 (note). Color-blindness, 234, 255. Common law, 37. Communication in prisons, 152, 158. Commutation of sentence, 138. Compiegne, 73. Composition for crime, 7, 34, 39, 210, 284. Compulsory education, 298. Compurgation, 46, 105. Comte de Pastoret, viii. Conciergerie, 110. Concord Reformatory, 223 (note). Conditional liberation, 218, 219 (note), 222. pardon, 165, 183. Confiscation, 79, 87 (note). Confraternities, 118. Congenital criminals, 253. Congregate prisons, 160. Congresses, 160. Connecticut State Prison, 147. Conscience, 207, 236, 271, 283. Conservatism, 23. Constantine the Great, 59, 65, 67, 70, 74. Constantinople, Towers of, 113. Contract prison labor, 78, 140, 160. social, 284. Contraventions, 13. Convict ships, 170. Cook, Captain, 163. Cord, the, 91, 99. Corday, Charlotte, 232, 233 (no(e). Corporations, 19. Correction, houses of, 113, 114. Corridors, prison, 136, 148. Corruption, municipal, 295. of blood, 79. Corsnsed, 46. Cosmical causes of crime, 277- 278, 296. Counterfeiters, 65. County jails, 313-315. Courts, Assyrian, 29. ecclesiastical, 16. Hebrew, 89. origin of, 29, 42. Coventry Act, 72. Crank, 137. Crawford, Sir William, 154, 182. Crete, 32. labyrinth of, 107. Crime and its Causes, vii. against nature, 51. and insanity, 215. causes of, 266-280, 292. class, 261. defined, 6, 11, 13, 14, 23,24, 35, 249. genesis of, 245-247. Crimes, ordinary and extraordi- nary, 104. Criminal, The, viii. Criminal, defined, 6, 24, 248. described, 232-237. law, defined, 12. Criminality, conditions of, 12. Croatia, 191, 223 (note). Crocodiles, 68. Crofton, Sir "Walter, 188-191,195. Cromwell, Oliver, 79. Crucifixion, 62. Cruelty, 236. Crusade, Third, 64. Crusades, 133. Culture, 207. Cunning, 235. Curriculum, 308. Customs, 28. Cyrus the Great, 69. D Damiens, 60. Daniel, 68. INDEX. 32'J Dante, 207. Danton, 59. Darboy, Archbishop, 68. Darius, 62, 68. Dartmoor, 183. Davitt, Miohael, 206, 244. Death, Confraternity of, 118. penalty, 7, 16, 17, 32, 40, 43, 60, 86 (note), 103, 105, 106, 110, 118, 126, 146 (note), 210, 311. rate in Australia, 170. Decalogue, 28. Decapitation, 63. Declaration of rights, 86. Degeneration, 235 (note), 246, 247, 319. Degradation, Civic, 78. Delaware, 76. Delicts, 13. Delphic oracle, 28. Dementz and Blouet, 155. Democracy, 22, 41, 86, 127. De Molay, 95. Demosthenes, 85. Denmark, 156, 191. Denne, 144. Denver, 130 (note). Deportation, 85. Depravity, 215 (note), 271. Deserters, 67. Despises, Prosper, 201 (note). Deterrence, 288. De Tocqueville, 154. Detroit House of Correction, 200 (note), 219. De "Windt, 176, 177. Dichotomy, 66. Dictionnaire de la p^nalit^, viii. Diele, 55. Diet, 224, 317. Discharged convicts, 87 (note), 219 (note), 305. Pisoretios, Judicial, 87 (note), 211. Discipline, prison, 138, 1S2, 163, 192, 226. Divorce, 33. Dixon, W. Hepworth, 123 la. Dogs in the Orient, 35. Doloire, la, 56. Dominic, St., 94. Doubling-up, 154. Draco, 78. Drawing, 60, 87 (note). and quartering, 60. Drowning, 63, 110. DuCane, Sir Edmund F., viii., 135, 309. Ducking-stool, 81. Du droit de punir, viii. Duelling, 22. Duke of Richmond, 170 (note). Dungeon of Rats, 91. Dungeons, mediaeval, 108. of the Inquisition, 99, 101. Diirer, Albert, 55. Dwight, Dr. Theodore, 193, 196, 200 (note). Dynamite, 19. £] Ear, criminal, 234. Earnings of prisoners, 137. Ecclesiastical jurisdiction, 98, HI. penalties, 16. prisons, 108, 121, 127. Eden, 148, 180. Edinburgh, 56, 214. Education, 126, 203, 205, 206, 210, 224, 293, 297-299. Edward II., 66. IV., 17. v., 64. VI., 74, 113. E£Bgy, execution in, 101. Egypt, 15, 70, 77, 89. 328 INDEX. Egotism, criminal, 209, 215 (rwte), 235. Electricity, 19. Electrocution, 50. Elimination, 9, 286, 312. Elizabeth, Queen, 90, 111, 128, 162. Ellis, Havelock, yili., 201 (710(e). Elmira, 8, 193, 197, 199 (note), 219, 223 (note), 243. system, 192-228, 306. Ely, Bishop of, 127. Emancipists, 168. Employment, 275, 306. Encyclopedists, 93, 126. England, 17, 41, 43, 44, 51, 52, 222. Engrossing, 17. Environment, 231, 246, 268. Equality, 291. Erlanbs-pass, 223 (mote). Escheat, 79, 80. Esculapius, 16. Esther, 89. Estrapade, 91. Jfitapes, 177. Evolution, 201 (note), 230, 292. formula of, 30. Evolutionists, 247. Exclusionists, 168. Excommunication, 16. Excoriation, 67. Executions, English, 59. French, 59. in effigy, 104. Exeter's daughter, 92. Exile, 34. Extortion by jailers, 90, 128. Factories, 19, 298. Fall-beil, 56. Familiars, 98, Family, the, 25, 26, 30, 33, 27^ 273. Famine, 278. Fear, 198 (note), 311. Fees, jail, 124, 128, 314. Felony defined 12. Felt, 158 (note). Ferdinand and Isabella, 95. Ferri, 232, 252, 284, 285. Feudal system, 21, 40. Fever, jail, 124, 130, 131, 181. ship, 170. Fichte, 284. Figurantes, 58. Fines, 16, 40, 43, 87 (note), 216. Fire, torture by, 9^, 100. Flanders, 132, 133, 137, 140. Flaying alive, 67. Fleet, the, 113, 128. Fletcher, Dr. Robert, 238 (note), 239. Fleur-de-lis, 74. Flogging, 17, 18, 62, 75, 76, 82, 87 (note), 210. Florence, 56, 115. Florida convict camps, 178 (note). Footing, 128. Forestalling, 17. Forgery, 70. For-l'Slveque, 111. Fossa, median occipital, 232, 233 (note). France, 41, 61, 74, 78,95, 171 222. Francisl., 18, 61,89. Frank pledge, 43. Fraternity, 290. Frederick the Great, 113. Frederic II., 95. Free colonists, 170. Freedom, growth of, 9, 290. of the will, 285. French penal code, 13, 87, 145. Kepublip, 156, 223 (note). INDEX. 329 French Bevolution, 8, 41, S6, 86, 109, 111, 112, 164, 284. Friars, mendicant, 114, 133. Fry, Elizabeth, 154 (note), 309. G Gains, 36. Galileo, 18. Galleys, 111. Galley slaves, 116. Gaming, 22. in prison, 129. Garnish, 128. Garofalo, 260. Garrote, 63. Gasparoni, 237. Gauls, 65. Gene, la, 87 (note). Genius, 271. Genoa, 55. George I., 162. III., 75, 76, 128, 181 (note). Germans, ancient, 37, 89. Germany, 44, 95, 116, 117, 222, 223 (note). Ghent, prison of, 132. Gibraltar, 181. Girardin, ifimile de, viii. Giustiniaui, Demetrius, 55. Gladstone, 170. Glaive, 53. Glasgow bridewell, 154. Gloucester, 145. Golden Bridge, 191. " Good time " laws, 139. Grades, 161, 187, 191, 201, 220. Grand assize, 47. Greece, 39, 62. (See Athens, Sparta.) Griffiths, Arthur, viii. Grose, Major, 166. Guadeloupe, 173. Guiana, French, 172. OuiJds, 43, Guillanme, Dr., 225 (note). Guillotin, Dr., 66. Guillotine, 65. Guilt, measnre of, 48, 212, 216. Gumey, J. J., 154 (note). Gypsies, 116. Gymnastics, 224. Hair, color of, 234, 267. Halifax, gibbet of, 66. Hallam, Sir Henry, 73, 80, 90. Haman, 59. Hamburg, 116. Hamilcar, 69. Hanging, 69, 162. in chains, 83, 84, 162. Hanno, 18. Hasdrubal, 67. HausBonville, Comte de, 172. Haviland, Edward, 148. Hayes, Rutherford B., 199 (note). Hazael, 63. Hearing of criminals, 234. Heathen spirit, 121. Hebrew children, three, 51. courts, 89. Hegel, 283, 288. Henry I. (of England), 67, 71. II., 47. IV., 52, 71. IV. (of France), statue of, 95. VIII. (of England), 17, 65, 72, 103. Heredity, 201 (note), 246, 249, 268, 296. criminal, 4, 215 (;to(e), 230, 267, 296. Heresy, 15, 24, 61, 94, 102, 120. Hill, Frederick, 121, 214, 217. Matthew Davenport, 186 (note), 197, 200 (note), 217, 218 (note), 253. 330 INDEX. " Histoiie de la legislation," viii. History and philosophy, 5. defined, 19. of Crime in Europe, viii. Criminal Law in England, viii., 28. Histriomastiz, 73. Hobart Town, 167. Holland, 116, 131, 142, IM, 156, 222, 223 (note). Holtzendorff, Dr. von, viii. Holy Hermandad, 98. OfiSce, 102. Home, the, 273, 274, 294. Homer, 27, 36, 63. Homicide, 106. Honorius III., 95. Hooks, the, 92. Hope, 198 {note). Horse-stealing, 66. Horsham, 145. Houses of correction, 113, 114. Howard, John, 7, 91, 93, 116, 121, 122-127, 135, 136 (note), 139, 144, 146, 148. statue of, 125. Howell, James, 73 (note). Hubbell, G. B., 199 (ru>te). Hue and cry, 44. Huggins & Son, 129. Hugo, Victor, 3, 243. Hulks, 163, 181, 182. Hundreds, 44. Hungary, 191, 223 (note). Identification of convicts, 305. Idleness, 236, 313. Ignorance, 15. Illegitimacy, 20. Illinois, 213, 226. Illuminated body, 63. Iml)ecUlty, 234, 246, Immigration, 2^. Impaling, 62. Imprisonment as penalty, 86, 87 (note), 107, 108,211. for debt, 126, 130. Impulsivists, 261 (note). Incapacitation, 121, 217, 263. Incest, 16, 51. Incorrigible, the, 263, 319. Indeterminate sentence, 139, 195, 197, 198 (note), 202, 209, 210, 216, 217, 220, 222, 224, 228, 264, 321. India, 21. Individual treatment, 208, 312. Individualism, 33. Inequality of sentences, 212, 213. Infangthef, 42. Infanticide, 65. Innocent III., 94. IV., 95. Inquisition, the, 94-102, 125, 143. Insanity, criminal, 250. and crime, 215. Instability, 235. Institutions for children, 300- 303. criminal, 200, 302. Intemperance, 11, 237, 296. Interdiction, 79. International Association of Criminalists, 308. Congress of Criminal Anthro- pology, 233, 260, 285. Penitentiary Congress, 307. Intimidation, 25, 48. Ionia, 18, 84. Irish prison system, 169, 189, 193, 196, 196, 199 (note), 219 (note). Iron mask, 109. Irons, 145, 147, 179 (note), 196, Isabella, Queen, 96, Italy, 93, 95, INDEX. 331 Jacob, 26. Jagemann, Dr. von, viii. Jail fees, 124, 128, 314. fever, 124, 130, 131. Jails, county, 313-315. Jamaica, 163. James I., 162. James II., 79. Japan, 53, 223 (note). Javelins, 68. Jebb, Sir Joshua, 170 (note). Jeffreys, 64. Jeremiah's dungeon, 107. Jesuit priest burned, 62. Joan of Arc, 62. Joseph, 107. n., 139, 146. Judgment of penance, 66. Judicial discretion, 87 (note), 211. function, 28, 30, 210. Julian law, 18, 87. Julius, Dr., 155. Jury, origin of, 46. Justice, 283, 290. Juvenal, 107 (note). Juvenile reformatories, 121, 200, 302. K Kaiserslautem, 195. Kansas, 226. Kant, 283, 287. Kari, mines, 177, 179. Kennan, George, 158, 175, 178. King, Captain, 167. King's Bench, 113. peace, 34, 43. Kinrade, Katherine, 81 (note). Knights of Malta, 111. Knock alphabet, 158. Krapotkine, Prince, 179. Krause, Dr., 236. Krohne, K., viii. Labor, 203-206, 210. and capital, 276. convict, 126, 137, 143, 147 (note), 148, 150, 161, 156, 160, 203-205, 313. question, 19, 293. sentences, 186. Labyrinth, Cretan, 107. Lacassagne, M., 246. Lacedemonians, 17. Ladbrooke, Sir Howard, 144. La gene, 87 (iwte). Laissez-faire, 299. Lampreys, 88. Land, tenure in, 21. Lanfranc, Archbishop, 71. Larceny, 106. Laud, Archbishop, 66. Law, common, 37. criminal, 12, 287, 288, 318. defined, 14. Julian, 18, 87. Magazine, 217 (nate). of nature, 282. origin of, 13. Salic, 37. statutory, 282. wager of, 46. Lazarettos, 125. Lead, melted, 68. Leads of Venice, 113. Left-handedness, 234. Legis actio sacramenti, 36. Legislative function, 28, 30, 210. Leighton, Baldwin, 129. Lepers, 116. Lepoglava, 191. Lesbians, 77. Lese-majesty, 16, 60, 62, 87. Lessee system, 168. Lex talionis, 7, 32, 38. Libraries, prison, 205, 206, 317. 332 INDEX. Licentiousness, 237. Liebei, Dr. Francis, 2. Life sentences, 87 (note), 121, 126, 139, 214, 311. Llng-ctaee, 66. Lion-taming, 68. Lisbon, 62, 123. Little Ease, 90. Livingston, Edward, 145 (nott). Llorente, 100, 103. Logwood, 137. Lombroso, 232, 233 (note). London, 43, 115. Review, 186 (note). Synod of, 71. Tower of, 54, 64, 90, 91, 108. Lopez, Father, 9S, 96. Lot, 21, 26. Lotteries, 22. Louis XL, 110. XIII., 112. XIV., 86 (note), 111, 112. XV., 60, 73. XVI., 57,58, 110. Lowell Institute, vii. Liibeck, 115, Liineburg, 116. Lusk, 190. Lying, 236. Lynds, Elam, 149. Lysander, 17. M Mabillon, 143. Macaulay, 54. Machiavelli, 91. Maconochie, Alexander, 185, 186- 188, 200 (note), 209, 217. Macqnarie, Colonel, 167. Madagascar, 171. Madrid, 101. Magna Charta, 106, 162. Maiden, the, 56. Maine, Sir Henry, 14, 36. State Prison, 147. Malacreda, 62. Malta, knights of. 111. Mamertine prison, 107. Manlius the Boman, 55. Maunaia, 55. Manorial gibbets, 64. pits, 64. prisons, 108, 127. Manufactures, 19. Marat, 59, 110. Maria Theresa, 132, 139. Marks, 186-191, 198 (note), 201, 220, 221. Marriage, 20, 294. Marsangy, Bonneville de, 218. Marshalsea, the, 113, 129. Martinique, 173. Martyrdom, 68. Martyrs, 24. Maryland, 153, 163, 307. Mask, iron, 109. Massachusetts, 152, 221, 226, 304, 307. Massacre of St. Bartholomew, 110. Massage, 224. Materialism, 248, 268, 284, 286, 287. Maximum penalties, 87 (Ttote), 211, 220. Mayenoe, 117. Mayhem, 71, 106. Median occipital fossa, 232, 233 (note). Mendicity, 132, 138. Menelaus, 63. Metayer system, 21. Mettray, 302. Michaux, £. H., viii. Michigan, 226, 301. Microcephalism, 232. INDEX. 333 Middle Ages, 40, 51, 78, 105. Milan, 116. Military drill, 224. Millbank, 141 (note), 181, 182. Mines, 19, 77. Minimum penalties, 87 {note), 211. Minnesota, 226. Mir, the, 21, 176. Misdemeanors, 76, 106. defined, 12. Misericordia, the, 118. Mithridates, 69. Mock courts, 129, 130 (note). Modena, 118. Molay, de, 95. Moleschott, Senator, 233 (note), 285. Molesworth, Sir William, 170 (note). Moloch, 51. Monism, 248, 268, 286. Monmouth, Duke of, 64. Monogamy, 20. Montaigne, 93. Montesinos, 193-195. Montesquieu, viii. Montfort, Simon de, 94. Montmorency, Marshal, 56. Montravel, 173. More, Sir Thomas, 55, 64. Moreau, Christophe, viii. Morrison, William Douglas, viii. Morton, Begent of Scotland, 56. Mosaic law, 32, 34, 38, 51, 75, 89, 238. Moscow, 177. Moses, 32, 34. Mountjoy, 190. I Moyameusing prison, 142 (note). Munich, 115, 195. Murder, 29, 39, 145, 269. Mussulmans, 24. Mutilation, 17, 70, 107, 210. N Nabis, 69. Nancy, 103. Naples, 116. Napoleon, 101, 111. Nares, 178 (note). Nation, the, 26. National Prison Association, 160, 193, 199 (note), 307. Necessitarianism, 286. Nero, 52. Netherlands, 55. Neuchatel, 223 (note). New Caledonia, 172-174. Jersey, 153. South Wales, 164, 170. York, 140, 196, 197, 220 (note). House of Refuge, 302. Prison Association, 193, 196, 197, 307. Newgate, 59, 113, 129, 144, 309. Chronicles of, viii. Newspapers in prison, 152. Nineteenth century, 10, 19. Ninus, 29. Nobles, immunity of, 40. Non-resistance, 32. Nordau, Max, 235 (note), 250 (note). Norfolk Island, 164, 166, 167, 184, 187, 188. Norway, 156. Nou, 173. Noumea, 173. Nuremberg, 69, 100, 103, 115, 116. Oakum-picking, 137. Obermaier, 193, 195. Occupations in prison, 116, 317. Offences, ecclesiastical, 15. Ohio, 226. 334 INDEX. Oldenburg, 223 (note). Ordeal, 44, 108. Organ, Mr., 191. Orleans, Council of, 118. Orphanage, 273. Oscar I., 155. Ostracism, 85. Oubliettes, 110, 111, 143. Outlawry, 85. Oxford Castle, 130. Panke, 65. Panopticon, 140, 141. Pantheism, 27, 288 {note). Pao-lo, 53. Paranoia, 271. Pardon, 139, 162,169. conditional, 162. Paris, 18, 65, 68, 95, 113. Parole, 220, 225, 306. (See Tioket- of-leave.) Parrhasius, 88. Parricide, 51, 69. Pastoret, Comte de, viii. Patarines, 74, 78. Patents, 19. Patriarchal system, 25, 27, 31. Paul, Sir G. O., 145. the apostle, 75, 88. Peace, king's, 34, 43. of the church, 34, 43. pledge, 43, 44. public, 43. Peel, Sir Bobert, 168. Peine fort et dure, 47. Pelissier, Marshal, 63. Penal code, Austrian, 146. French, 13, 87, 145. servitude, 183. Penance, 16, 38. judgment of, 66. Penalties, extraordinary, 90. Penitentiary, Eastern, 135, 141, 148, 150, 153, 157 (note), 182, 261. system, in England, 145, 163, 181-184. in France, 87 (note). United States, 141, 147-154. Penn, William, 141, 142. Pennsylvania, 146, 226, 307. prison society, 307. system, 8, 87 (note), 135, 151. Penology, 2, 4. Penredd, Timothy, 73. Pentonville, 182, 202. Pepin, 65. Perama, Louis de, 100. Perjury, 15, 46. Persecution, 16. Persia, 17, 29, 52, 66, 70, 80, 89. Pessimism, 253. Pestilence, 278. Peter of Castelnau, 94. Philadelphia, 135, 142, 146, 153. Society for relieving distressed prisoners, 142. Philistines, 70, 107. Phillip, Commodore, 164, 165, 183. Phocion, 62, 68. Physician, the prison, 315, 316. Pike, Owen, viii., 71, 72, 76, U4. Pillory, 73, 80, 81. Pits, 147. manorial, 64. Pittsburg, 148. Placing-out, 301, 303. Plague, the, 118. Plato, 120. Platycephalic, 233 (note). Play-actors, 18. Plead, refusal to, 47. Pliny, 18. Plutarch, 69, 84. INDEX. 335 Poison, SI, 65, 63. Police, 44, 88, 304. surveillance, 87. Political appointments, 192, 22fi, 227. Polyandry, 20. Polygamy, 20. Pompey, 89. Portia, 33. Portland, Duke of, 128. prison, 183, 184. Portugal, 116. earthquake in, 123. Post mortem condemnation, 104. Potiphar, 107. Powell, J. C, 179 (note). Precocity, 234. Preparatory lilieratiun, 218. Pressing, 47, 66. Prevention, 6, 8, 9, 25, 292-308. Primitive man, 25, 83. Principles, declaration of, 198. Printers and printing, 18. Prison architecture, 134, 141. congresses, 160. discipline, 138, 152, 153, 192, 225. fort et dure, 47. Sunday, 307. Prisons, primary use of, 7, 87 (note), 107. State of (Howard), 123. (Wines), 201 (twte). Private charity, 297. Privy council, 90. Probation, 169, 184, 304. gangs, 169. Progress, 23, 290. Progressive classification. 221. Prometheus Bound, 88. Prostitution, 219, 234. Protection, 215 (note), 284, 289. Prynne, William, 73. Public opinion, 307. peace, 43. works prisons, 183. Punishment, theory of, 281-291. Puritans, 16. Pygmalion, 67. Quaestio, 88. Quaestiones, 29. Quakers, 142, 147. Quamadero, 97. Quarantine, 19. Quarries, 77. Queen's Bench, 73. " Question des peines," viii. Question, the, 90, 92. B Back, the, 91. Badiating prisons, 141, 148. Baleigh, Sir Walter, 55. Bank, 22, 90. Bansom, 40. Baoul, 94. Eape, 70, 106, 269. Basp-houses, 116. Eauhe Haus, 302. Becidivism, 178, 214. Beciprocity, 31. Beformation, 25, 120, 149, 157, 223, 224, 253, 288, 289, 319. sentences, 214. Betormatories, adult, 9, 196. juvenile, 121, 200, 302. Befuge, cities of, 34. Begister, criminal, 239. Begrating, 17. Begulus, 62. Beins, driving with, 18. Relegation, 85. Eeligion, 203, 206-208, 210, 237, 279, 280, 293, 297, 311, 316. 336 INDEX. R^my, 103. Keuted prisons, 128. Bentzel, Peter, 116. Bepression, IM, 263. Beprimand, 87 {note). Besponsibility, 285. BetributioD, 25, 35, 48, 120, 210, 216, 289, 311. Bevolution, American, 8, 133, 112, 163, 180. French, 8, 41, 67, 86, 109, 111, 112, 161,284. Bewards, 224. Bhadamanthus, 32. Bheims, 218. Bhode Island, 153. Bights, evolution of idea, 14. Bobber barons, 40. Bobbery, 106. Bobespierre, 59, 110. Bochester, Bishop of, 65. Borne, 18, 28, 67, 78, 88, 89, 116, 286. Bousseau, 284. Bussell, Lord John, 168. Bussia, 17, 77, 158, 175. S Sacrilege, 51. S^ghalin, 179. St. Edme, yiii, John the Beheaded, 118. Mary at the Cross, 118. SS. Peter and Paul, 168 InoU). Salamanca, University of, 96. Sallust, 107 (note). SalpStrifere, 112. Samians, 74, 78. Samson, 70, 107. the executioner, 68. Sanborn, F. B., 193, 198. Sanctuary, 34, 162. Sanitary law, 19. Sanitation, 275. San Michele, 116, 121, 136 (note). Sargovie, 223 (note). Savagery, 246. Savonarola, 91. Sawing asunder, 66. Saxony, 223 (note). Scavenger's daughter, 92. Schools, prison, 138, 224, 317. Science, 280, 297, 311. Secondary punishments, 70-87. Secretions, perverted, 234. Sefi II., 52, 64. Seigneurs, grand, 40. Self-control, 9, 215 (note), 237, 290, 294,296. defence, 13, 14, 32. respect, 194. Seneca, 120. Separate system, 145, 156-158, 313. merits of, 156, 167*. Sepoys, 69. Serfs, 21. Serpents, 69. Servetus, 62. Servia, 223 (note). Servus poense, 40, 75. Severity, 104. Seville, 97. Sexes, relation of, 20. Sherbom, 224 (note). Sheriffs, 314. Shires, 44. Ship fever, 170. Shooting, 67. Shot drill, 137. Siam, 62, 68. Siberia, 176, 180. Sidney, Algernon, 55. Sierra Leone, 163. Silence, 122, 144, 150, 160. Silly Kelly, 214. Simplicitarians, 287. Simsbury mines, 147. INDEX. 337 Sin, 11, 13, 279. Sing Sing, 150, 199 {note). Sixtus IV., 97. Slavery, 40, 311. and war, 22, 77. Slaves, burned, 51, 152. negro, 21, 33. Koman, 39, 40, 51, 75, 88, 89. Slums, 131. Smell, sense of, 234. Smithfield, 52, 65. Social contract, 234. organism, 247. Socialism, 291. Soci^te des prisons, 308. Sociologists, 246, 248. Sociology, 19, 20, 34, 247, Socrates, 68. Soil, attachment to, 21. Solidarity, 40, 44, 283. Solitude, 144, 145, 147, 150. SoUohub, Count, 178. Sophronisterion, 120. Sorcery, 15, 18. South Dakota, 226. Spain, 95, 116, 194. Spanish mantle, 81. Sparta, 18, 63, 69. Speculation, 22. Spencer, Herbert, 29. Spielberg, 113. Spike Island, 190. Spin-Houses, 115, 116. Star Chamber, 73, 79, 113, class, 189. Starvation, 68, 74, 110. State, notion ol the, 35. of Prisons, (Howard), viii., 123. (Wines), 201 (note). Statistics, 255, 267, 294. Stephen, Sir James, viii, 12, 28, 47, 108. Stoning, 65. Strangulation, 63. Strappado, 91. Struggle for existence, 14. 276. Subjugation, 208. Suffocation, 63. Sugar-loaf head, 232. Summary, The, 224. Sumptuary laws, 17. Supernatural, the, 39. Superstition, 15, 237, 276, 293. Surveillance, police, 87, 219 (note), 304, 321. Sweden, 156, 222. Switzerland, 66, 144, 222, 223 (note). Sydney, 164, 167, 185. Symbolists, 250 (note). Synod of London, 71. Tacitus, 64, 89. Tamar, 51. Tantrums, 235. Tarpeian Bock, 67. Tartary, 66. Tasmania, 167. Tattooing, 153, 238-242. Tauffer, M., 191. Taunton Assize, 131. Templars, 95, 111. Temple, the, 110. Tenure of office, 192. Tertullian, 93. Theft, 29. manifest, 42. Themistes, 27. Themistocles, 85. Theodosian code, 51. Theology, 237. Thieves, petty, 76. Thucydides, 85. Thumbscrew, 91 Tiberius, 89. 338 INDEX. Ticket-of-leave, 169, 182, 183, 201, 202, 219 (note), 222 {note). Tithings, 43. Tobacco, 17, 137. Torquemada, 96, 97. Torts, 12, 13, 28. Torture, 7, 57, 66, 86 {note), 87-94, 99,100. chamber, 99, 100, 111, 131. Toulon, 172, 173. Toulouse, 56. Tower of London, 54, 64, 90, 91, 108. Towers of Constantinople, 113. Towns, growth ot, 19. Trade education, 137, 225, 293. Transportation, 34, 162-180, 182. English, 162-171. French, 171-175. Russian, 176-180. Transylvania, 128. Travauz forces, 184. Treadmill, 137. Treason, 52. high, 66, 78, 79. Trenck, Baron yon, 113. Triads, 288 {note). Triangle, 80. Tribal war, 14, 31, 35. Tribe, the, 21, 26, 30. Tulliana, 107. Turkey, 17, 63. Turkish bath, 224. Twelve Tables, 17, 28, 42, 62. Tyburn, 79. U Ulpian, 93, 107. United States, 41, 192. University of Salamanca, 95. Wisconsin, vii. Unterwalden, 223 {note). Urtheil, 44. Utilitarianism, 284. Vagabonds, 74, 113, 114, 133. Valencia, 193. Van Diemeu's Land, 167, 168. Vanity, 236. Vaud, 223 {note). Vautrin, 244 {note). Vaux, Richard, 261. Roberts, 150. Veglia, 92. Vendetta, 33, 239. Vengeance, private, 31, 34, 39, 42, 46. Venice, 113. Verdun, Bishop of, 110. Verlaine, Paul, 250 (note). Verona, Council of, 94. Vestals, 64. Vicarious punishment, 39, 104. Vicar of Wakefield, 129. Vice, 11. Victoria, 170. Vienna, 115. Vilain XIIII., viii., 132, 136. Village communities, 21. ' Villeins, 21. Virginia, 153, 163. Visitors, prison, 118, 156. Vito Porto, 285. Voltaire, 62, 244. Von Baehr, 29. HoltzendorS, viii. W Wager of battle, 46. law, 46. Wages, 275, 293. Waldenses, 93, 94. Walnut street jail, 142, 146, 160, 153. War, 23, 77, 276, 294, 311. and slavery, 22, 77. tribal, 14, 31, 35. INDEX. 339 ■Warden, qualifications of, 226-228. Warrants, 44. Water, torture by, 99. Well of blood, 113. Wer, 37. Wergeld, 37. Wey, Dr., 236. Whately, Archbishop, 141 (note), 186, 216, 217. Whichcot, Sir Jeremy, 128. Whipping-post, 76. William I. (the Conqueror), 46, 71, 108. IV., 84. Williams, Koger, 16. Wilson, Bishop, 82 (note). Wines, Dr. E. C, 192, 193, 196, 200 (note), 201 (note). Wines and Dwight, 196. Winter, Alexander, 201 (note), 226 (note). Wisconsin University, vii. Witchcraft, 61, 152. Wite, 37. Woolwich, 181. Workhouses, 113, 116-118, 133. Workshops, 122, 138, 149, 224. Wrinkles, 234, 260. Xenophon, 85. Ximeues,97.