Hill iiiiiiiiiiuiiitiiijfiiii iiiuiiiiiiiiiuiiiinii [(l||l|!i|l|lil|l)ll{ilimiUlfllliMM)|lMillll|ll!IH] 1 II mtHitrtiifflmmtttuiitntiiiilii HV fyxMll mmvmxtt f ih«g |b BOUGHT WITH THE INCOME 1^ FROM THE SAGE ENDOWMENT FUND THE GIFT OF 1891 5474 Date Due )i;c : p:.9' 14 ' SgS& Cornell University Library HV8493 .W62 1902 Recent object-lessons in penal science olln 3 1924 030 329 704 RECENT OBJECT-LESSONS PENAL SCIENCE U3\^\3 BY THE SAME AUTHOR. RECENT OBJECT-LESSONS IN PENAL SCIENCE. First Series, i8g8. Second Series, igoo, both out of print. In preparation. THE PRINCIPLES OF PENAL SCIENCE BEING A COMPLETE INTRODUCTION TO THE STUDY OF COMPARATIVE CRIMINOLOGY. '"■'yu':' THIRDS SER IES ' //;/. ,- ' ' RECENT OBJECT-LESSONS IN PENAL SCIENCE WITH A BIBLIOGRAPHICAL INTRODUCTION BY A. R. WHITEWAY, M.A. Barrister-at-Law Corresponding Member of the Academy of Legislation of Toulouse XonSon SWAN SONNENSCHEIN & CO, LiM 1902 T (^6^3 t g 13 ^^6 "^/7/,: A> vt^(p6>^ PREFACE. Me. Anstey tells us in his preface to Vice Versa of a punctiliously polite Greek, who apologised to those who came to the funeral of his little child, that there should be so great a gathering for so small a corpse. Without intending to plagiarise the methods of the petti maitre in question, but rather those of a still greater Greek when he pleaded, " Strike but hear me," I must yet express regret upon the birthday of this book not only at its slight- ness, dealing as it does with such colossal issues, but also that certain chapters written originally for Magazines and Eeviews do not lend themselves over kindly to revision, for publication in Book shape. This latter fault however, being one of form -rather than of substance, will readily be forgiven by those who are earnestly seeking after truth in penal science. Such like myself cannot but deplore the fact, that England has contributed little to the literature on the subject, which is so good and abundant on the Continent. Since no one else will look at a book, which, if honest and true, men of penal science nevertheless will welcome as of course, it serves no useful purpose then, to labour apologies under the title of a preface. E.KFOEM Club, Pall Mall, Dec, 1901. The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030329704 CONTENTS. PAGE CHAPTER I.— Pedantic Penology, . .13 „ II. — The State v. the Criminal, 28 „ III. — The Bettekment of The Criminal, . . . .55 IV. — The Law's Delays, . . 73 „ V. — Imprisonment, . . . .85 VI. — Prison Eeform, . . . 102 „ VII. — The Moral Hospital for Immoral Patients, . .114 „ VIII. — Our Criminal Administration, 128 „ IX.— The Prison Act, 1898, . . 143 „ X. — Reports of Prison Authorities, 160 XI. — Statistics, French AND English, 175 „ XII. — Statistics, French and English, Continued, .... 185 APPENDIX. — A Self-Suppoeting Public Asylum 194 INDEX, 213 BIBLIOGEAPHICAL INTRODUCTION. Most of the books on Penal Science that have appeared in France, or that have been translated into French, will be found either in Alcan's catalogue (Boulevard St. Germain, Paris) or in that of Storck of Lyons. The great Italian publishers of these works are Bocca Fratelli of Turin, and Fisher Unwin the chief English, and Murillo of Madrid the Spanish one, but we have very few English books on the subject worth speaking of as regards quantity or quality. Among the most useful are perhaps English Books. The Criminal, By H. Ellis. 3/6. Walter Scott (Chapter II. contains a list of books.) Crimes and Punishments. By Farrar, 1870, Chatto and Windus, gives a good translation of Beccaria's famous pamphlet. Pike's Histvry of Crime. 2 Vols. Crime and Punishment. By Du Cane. 2/6. Macmillan. Stephen's History of the Criminal Laiv of England. Crime and its Causes. By Morrison. 2/6. Swan Sonnenschein. Five Years' Penal Servitude. Jottings from Gaol. By Horsley. Professional Criminals of America. By Byrne. Yearly. The Prison Commissioners' Reports. 2/3. King's Printer. BIBLIOGRAPHICAL INTRODUCTION Yeaely. Criminal Statistics. King's Printer. ALSO The Law of Prisons, 1876. By Wilkinson. 6/- Stevens & Sons. The Prison Act, 1898. King's Printer. The Bides for Convict Prisons, 1899. No. 321. King's Printer. The Rides for Local Prisons, 1899. No. 322. King's Printer. English Magazine Aeticles. Inequality in Punishment. By Sir E. Fry. Nineteenth Century, 1883, p. 517. Crime and Punishment. By Hawkins Hopwood and Poland. The New Review, 1893, p. 617. The Punishment of Crime. The Nineteenth Century and After. Feb. and July, 1901. Dr. Anderson. Crime and Punishment from the Comparative Point of View. The Journal of the Society of Comparative Legislation. June, 1901. Mr. Crackanthorpe, K.C. Punishment. Romilly Society, 1901. Mr. Hopwood, K.C, Also four other pamphlets issued by this same society. See too an article in Macmillan's Magazine for March, 1901, By the Governor of Parkhurst Convict Prison. The State Punishment of Crime. By Mr. Justice Kennedy. Law Magazine, 1899 (Nov.), p. 1. Can Sentences be Standardized ? By Mr. Crackanthorpe. Nineteenth Century, 1900, p. 103. Prison Reform. By J. Cooney. The Month, 1900, p. 597. Sheriff Guthrie's article in Juridical Review, Jun?, 1901. FoEBiGN Books akd Articles. H. JoLi. Le Crime. Combat contre le Crime. La Femme Criminelle. L-Cerf 3.50 frs. each. The Bulletins of the Union Internationale de Droit PMal. BIBLIOGRAPHICAL INTRODUCTION G. Taede. La GriminaliU Comparde. 2 Ed. Alcan, 1§90. 2.50 frs. La Philosophie Finale. Storck, 1890. 7.50 frs. A. Feanck. La Philosophie du Droit Penal. 4 Ed. Alcan, 1893. 2.50 frs. Teipiee et Monniee. Les Codes Frangais. Pichon, 1898. Travavx Preparatoires. Congres Pdnitentiaire Inter- national de Bricxelles, 1901. Rapport de M. Fernand Thiry, Professear de Droil Criminal k V University de Liege. L. Peoal. Le Crime et la Peine. Alcan. 1890. 10 frs. G. ViDAL. Cours resume' de .Droit Penal. Rousseau, Paris, 1894. 5 francs. Id. Cours de Droit Criminel et de Science Pini- tentiaire, Rousseau, Paris, 1901. 10 frs. Gaeofalo. La Criminolof/ie. Alcan, 1 892. 7.50 frs. Ch. Feee. Diginirescence et CriminAxlitd. Alcan, 2.50 frs. SiGHELE. La Foule Criminelle. Alcan. 2.50 frs. LOMBEOSO. L' Homme Criminel. Alcan. 10 frs. Atlas. 12 frs. L' Anthropologie Criminelle. Alcan. 2.50 frs. Nouvelles Recherches, etc. Alcan. 2.50 frs. Les Applications de V Anthrop. Crim. 2.50 frs. Fbeei. Criminologie Criminelle. Rousseau, 1 893. 10 frs, BIBLIOGRAPHICAL INTRODUCTION GUILLOT. Lei Prisons de Paris et les Prisonniers. Dentu, 1890. 7.50 frs. Von Liszt. Le Droit Criviinel des dtats Europeens. Liebmann, Berlin, 1894. Annual Official Publications. Conipte Gineral de V administration de la Justice Criniinelle en France. Imp. Nat. Statistique PMitentiaire. Dupont, Paris. Imp. Adm. Melun. 6 frs. Code des Prisons. Dupont. Paris. Imp. Adm. Melun. French Magazine Aeticlks. G. Taede. Va7'ioii$. List given opposite title page of any of his books. A. Fkanck. Review of E. Beaussire's Les Principes du Droit. Journal des Savants, 1889, p. 1, and p. 397. A. Feanck. A Review of JolVs Le Grime. Journal des Savants, 1899, p. 577 and p. 729. G. PiCOT. A Revietv of La Sociologie Griminelle (Ferri)., L'Homme Griminel (Lombroso)., and Science Penale et Droit Positif (Prins). Journal des Savants, 1900, p. 561. Beochuee. De. Jul. Moebl. Xa Pro]}hi/laxie et le traitement du Griminel Beeidiviste- Bussy. Amsterdam, 1901. PENAL SCIENCE CHAPTEE I PEDANTIC PENOLOGY We have heard with our ears and our fathers have told us ad nauseam the tale of the State versus the Criminal, and therein more particularly of imprison- ment. In truth, the attitude of the Orthodox School of Penal Science with regard to crimes and punish- ments has ever resembled that of the engaging child, who observed almost with tears when contemplating the picture Christianos ad leones, "Why there is a poor lion that has not got a Christian ! " The result has been on the part of many whose hearts burn with- in them when contemplating our penal methods, to advocate the sending of all immoral offenders to an exaggerated moral ^ hospital, thereby bringing proper humanitarian treatment of prisoners into disrepute, 'jSee Chap, vii., inf. 14 PENAL SCIENCE and causing the same to be dubbed in the canting terminology of persons like Sydney Smith's ^ Turkey carpet alderman, speculative humanity. Since identi- cal criticism was used by Lord EUenborough ninety years ago, with respect to the conduct of those who then struggled to repeal the Act punishing with death shoplifting to the extent of five shillings, it has now become commonplace if not out of date. Such disrepute again has been deepened and broadened by the action of sundry self-seeking agitators, who assert that our prison system often sends men mad. In so doing these foolish persons deceive others besides them- selves, and the truth is not in them. For prison madness^ falsely so-called originating from solitary confinement, is happily non-existent in the England of to-day. So that the truth here as elsewhere lies in the middle, and what that middle is, though perhaps somewhat from the point of view of the Criminal versus the State upon this occasion, in revenge for his lack of opportunity to get a hearing in the past, we shall now attempt to make manifest. The obvious fact is soon borne in upon the open miud, that it is the individual criminal and not collec- tive crime which the man of penal science has to handle. And further that instead of ever punishing such an one, the more excellent way must surely be s, p. 374. = See p. 123, inf, PEDANTIC PENOLOGY 15 to prevent ^ him, but with judgment and not in our anger. The main object then should be, to neutralize his noxious effect upon that society^ which to-day notwithstanding all his punishment he has far too great licence to injure, as well as preposterous oppor- tunities for impeding in its peaceful course of develop- ment. By way of preface let it be said, that if we go into the foundation of the right to punish,^ a power- ful side-light is at once thrown upon the raison d'itre of this enquiry, which is nevertheless in the main, how to effectually lessen our volume of crime as the years roll on. Nor is it an easy matter to discuss the origin of the State's right to punish evil-doers, inasmuch as the particular theory with reference to such right that best fits the scheme of each school of criminal juris- prudence, is ever held to be itself fundamental, and the only one to which that school will allow binding authority. Existing penological systems may roughly be set down* as three in number, namely, those of (A) 1 As by adequate identification methods, truant scliools, and the like. ^ " Crimes are only to be measured by the hurt done to society." Beocaria's Easay, Chap. VII. ' As to which see A. Franck, Philosophie du droit Pinal. Paris, 1893. * See Mr. Crackanthorpe's Article, Nineteenth Century, January, 1900, p. 105, It) PENAL SCIENCE Elmira, (B) Sir Edward Fry, and (C) Paley and Bentham. These denoted in descriptive terms are the reformatory, the retributive, and the preventive methods of dealing with crime and its treatment. So very much depends upon the personal feeling and religious bias with which each mind approaches the consideration of the subject,^ that unless all prejudice (according to the true sense of the word) be put aside it can but arrive at a foregone conclusion. The only way of attaining to a right judgment here as else- where is, by following strictly the scientific as distinct from the mere historical method, and so gaining a clear insight into facts and their results. Superficial statements and appeals, as for instance in the matter of suppositious prison madness, to the imagination and emotions, must be severely let alone. To take one instance. What we want to determine is why a child-mother is sentenced to death for infanticide. Is it because our sense of propriety as family men has been so outraged, that we will not (theoretically) afford her a chance of so outraging it again ? Is it that other infants may not be done to death ? Or because we hold it to be expedient in the circum- stances that the offender shall (be sentenced to) die for the people, to serve the purpose of object lesson or moral scarecrow ? To take the latter reason first. ^ I.e. the personal equation. PEDANTIC PENOLOGY 17 Boswell tells us that Dr. Johnson once said/ " Baretti is to be tried for his life to-morrow. Friends have rison up for him on every side. Yet if he should be hanged, none of them will eat one slice of plum pud- ding the less." If this be true of friends in the case of a true hanging, why should strangers be more deeply effected by a mock one? Among the Pyrenees in medieval times, some dim idea of the truth must have found a place in the tribal conscience of the people there located. For mothers and schoolmasters alike were wont to take children committed to their charge to public executions, and afterwards to administer to them wholesale a sound whipping, that so all chance might, be eliminated of such spectacles not being ever duly had in remembrance by them in after years.^ Thucydides with greater acumen observes that it is silly to think that, when human nature is firmly bent upon doing any particular thing, it can be deter- red therefrom either by force of law or by any other terror. And the fact that the majority of the criminal class are recidivists,* shows conclusively that our 1 " Boswell's Life of Johnson, Routledge's cheap Ed., p. 148. ^ Of. The Nursery Rhyme— "That is Jack. Lay a stick on his back, What has he done ? I cannot say, We will find out to-morrow, and beat him to-day. ' Quoted by Farrar, Crimes and Punishments, p. 82. * The involuntai-y idea conveyed by the word rJddive should be noticed. It ia properly a medical term used of the recurrence of of a disease. See too p. 56, inf. 1 8 PENAL SCI ENCE methods of everlastingly punishing have not in the case of the offender himself proved deterrent. Hang- ing a man without whipping the spectators won't do any good, and it is a grave question whether if the whipping all round were thrown in it would have any very lasting effect, as hope (of a way of escape from the consequences of an evil act) springs eternal in the human breast. Obviously if we hang a man, we cannot set much store either upon the value of life or of reformatory methods in his regard, and so the well-worn observation of the hanging judge is about true even now, " I don't sentence you a man to death for merely stealing one horse, but in order that multitudes of horses may not be stolen in future ! ' ^ — a pious belief that lacks foundation and any sort of peg whereon to hang it. If we kill our criminal, because we are pleased to think that his crime deserves killing by reason of its immoral atrocity as do the true school of punishers, in that case we arrogate to ourselves, in accordance with some hypothetical innate sense of justice, an authority and a competence to estimate to a nicety the value of another's crime, and to punish the author as vindictively as we please. For vengeance is ours we will repay it say we. This theory is particularly deluding when expounded by men like Sir Edward ^0/. Seneca de Ira, I, 16. Nemo prudens punit quia peccatum est, sed ne pecoetur. Also Id. II, 31, and Plato Leges XI, 934 A. PEDANTIC PENOLOGY 19 Fry and Mr. Justice Kennedy. In the mouth of Sir James Stephen it becomes more brutal, and in that of the ordinary outsider is merely a relic of the super- stition of barbarian days, when Tantum religio poUdt suadere malorum. We have no right to punish for punishment's sake. All we can do properly in our treatment of criminals is to efficiently protect our- selves. If in so doing we benefit them, that is not only a matter of duty but one too to our own exceeding great advantage. For it is chiefly on utilitarian grounds that anything in the nature of punishment can be tolerated, by those who do not believe that the divine right to punish has been supernaturally transferred to the sons of men. " Fitting suffering to sin " is a task man was never meant to perform. It is ex hypothesi impossible, since many sins are not common law offences and so un- punishable by our law.^ It is impracticable, for who shall weigh the offender in the balance with adequate accuracy ? If crime is rife in a particular district, the moral turpitude of each offender there is less than where we find but little crime, because he sins less against light and knowledge. Yet it is in the former place that he is wont to be especially sharply dealt lAs Paul Gide (Lea Femmea, Paris, 1867, p. 346) says of the Spanish Forum Judicum, " Le legislateur poursuit jusque dans les nuages de la metaphysique la veritfe et la justice absolues, et il oublie aouvent ce qu' est la soci^^ qn'll gouverne, quels sont ses prejugfe ses habitudes et ses besoins." 20 PENAL SCIENCE with, to slop the great damage being done to society. Obviously then practical utility, more than some ideal standard like abstract justice, measures the amount of repression necessary on each occasion that a crime is discovered. With great deference to so keen a thinker as Sir Edward Fry, the School of Proal and Joli of which Joseph de Maistre was the apostle and to which Sir Edward lends all his weight of authority as a prop, cannot stand upright for several reasons. Firstly because it starts on an hypothesis that there is innate in man a horror of sin and a iTuiversal feeling that sin should be punished, and this hypothesis may be untrue.^ Secondly the hypothesis, itself won't work, because what we puuish is not sin but often something which would be quite innocent if not forbidden by the law, and in every country there are many sins no legislator has ever attempted to punish, and further because it is not easy to define what sin is. Thirdly because fixing the proper amount of punishment due to a criminal, and gauging off-hand the measure of his guilt is beyond the power of his fellow-men, and of necessity lead.'^ to inequality of punishment, inasmuch as among other things we cannot give a proper value to our individual senti- ments as to the sinfulness of particular acts, or to the effect of heredity in each case, both of which must -'Cousidei- the ten commandments, and the seventeen offeucea given in Gal. v., 19. PEDANTIC PENOLOGY therefore ever remain " arbitrary constants " in the punishing problem. Fifthly because punishment neither benefits the criminal nor his fellows. Punish- ment as compared with certain detection does not prevent crime to any great extent, even in the case of those outside the criminal class.^ Lastly, because the main idea of fitting suffering to sin is derived from the bloodthirsty precepts of the Mosaic and Eoman laws, which are the foundation of most existing criminal jurisprudence, and their bed-rock was the Lex Talionis (teKs-similar). A more up-to-date competitor with the utilitarian theory of the treatment of offenders, is that of the various branches of the School of Criniinal Anthro- pology. The several prophets of this school, Ferii Garofalo Lombroso Tarde Fer6 and Colajanni how- ever differ considerably among themselves, while the Lyons offshoot with Dr. Lacassagne at its head has a " doxy," which probably many of them would alike consider heterodoxy. The root idea speaking generally of these anthropologists, may perhaps be taken to be that there is such a thing as a true born criminal. This dogma is as much an hypothesis as that man has an innate sense of justice, and if wholly true the born criminal should be put to death offhand, a course which ' The reason crimes are rife on great holidays, at processions, etc., is because their prepetrators speculate on not getting caught. 22 PENAL SCIENCE: Garofalo logically advocates.^ Not only does the material aspect of the position here taken make it incapable of adoption by those who are not through and through materialists, as is well shown by Proal, but the difficulty of ascertaining who is a true born criminal even at his autopsy makes it unworkable in practice. The School of Elmira is much more specious in its propaganda. It boldly says that the primary object of punishment is reformation, and if proper subjects are chosen and adequate methods adopted, that such reformation can by the use of the indeterminate sentence be made an accomplished fact. This system errs as being only partial, and not addressing itself sufficiently to the prevention of crime. Its methods too, such as the turning of the prison-house into a University fitted with Turkish baths and producing a newspaper of home manufac- ture, are a little too startling notwithstanding the successes claimed for it by Mr. Brockway, to make cautious men advocate its adoption in our country. So far from acting as a deterrent, it would seem in the case of the penniless tramp to be not improbably his highest ideal of felicity, and the very thing to get into which he would rouse himself to commit almost any crime. Such a premium to evil-doers we cannot ^La Criminologic, Paris, 1892, p. 408. Cf. Dr. Anderson in Nineteenth Centui7, 1901, Feb. p. 276, quoting Stephen, J. History of the Criminal Law, Vol., i. p. 479. PEDANTIC PENOLOGY 23 afford to hold out, in the view of many kindly penal scientists as for example of Mr. Justice Kennedy.^ We have now shown at some length what are the views of the main schools of pedantic penology, and also glanced at the newer ideas of Italy France and America. The reasons why no one of these except the utilitarian can prevail has also been sufficiently indicated. It now remains to point out what in our view is the proper credo of the man of penal science, who desires neither to be unduly influenced by historical bias, nor to be run away with by the fascinating analogy of any modern scientific dis- coveries. To put it briefly, this is as follows. The right to coerce those whose conduct makes them unable to adapt themselves to their environ- ment without hurt to one or more of their fellows, undoubtedly exists. It exists by reason of the impossibility of living in society as we are now compelled to do without it, and is therefore founded on utility. The less disturbance its use causes in any locality the better. No such doctrine, as that an in- nate sense of justice directs us to concur in Society punishing crime vice or immorality, can hold water if seriously examined. Supposing it or God's law falsely so-called did enjoin upon us any such duty, it would be to repress all three alike, which is absurd. All that there is then any paramount obligation upon 1 Law Magazine, November, 1899, p. 19. 24 PENAL SCIENCE us to do, is to render criminals as a body as in- nocuous as may be, and to make no pretension to punish or indeed to reform them except in as far as may make for the greatest good for the greatest number among us. To this end some such establish- ment as a less exaggerated Elmira is a fit and proper means, which should be as far as possible self- supporting. The indeterminate sentence is essential, for it does away with all necessity for standardising punishment, a thing that no one has as yet succeeded in doing, and for determining hastily at the trial the moral responsibility of the offender.^ For such as show themselves confirmed recidivists and so do not yield to treatment, perpetual internment is the only course to adopt. Although the " born criminal " and atavism are vastly over-painted, hereditary predisposi- tion fostered by criminal surroundings makes it unwise to allow habitual criminals to propagate and if this is prevented the species will naturally die out. Having done away with the vendetta,^ by the operation of which many evil-dcrers use to perish automatically, we must assist the survival only of the fittest by ourselves taking in hand the rigorous elimination by continuous detention of the most unfit. 1 This, though important to gauge to get at his imputability, does not aifect his degree of noxiousness to society, which should be the main reason of his detention. ^ And transportation also in England though not in France. PEDANTIC PENOLOGY 25 When more opportunities of a collectivist character are placed within the reach of the proletariat, and a practicable way of escape is offered to them from their present miserable surroundings, which impera- tively force a criminal line of life upon so many of them, when our evil-doers are always caught and either reformed or interned in perpetuity, and there are no young ones to take their parents' place, then, and not till then, will crime be stamped out, to the same degree as has been the case with most epidemic diseases. This is the true faith, and whosoever does not believe it cannot be of the elect. It is only by strenuous activity in regard of propaganda such as this, that we can work out our own salvation from the harm- ful action of crime and criminals. But we may have to persevere therein with fear "and trembling, and then only partially succeed even after many days. This propaganda is in brief as regards its principles as follows. Disregard custom which serves as reason to the fool,i and the authority of antiquity which used to try animals for crimes in Spain, and till lately forfeited in England as deodand things by which human beings had been killed. The extension of the material sphere of penal science into regions where our fathers could see nothing at all, makes our con- 1 Of. " Custom dotli often reason overule, And only serves as reason to the fool." — Sochester. And " Such dupes are men to cuitom,"—Co'wper, 26 PENAL SCIENCE elusions often of necessity altogether different from theirs. Our environment is wholly unlike theirs. And yet reparation to the party injured by a criminal is still merely in the air, ^ while the family of the evil-doer suffers for his deeds almost as much now as in days when, if he could not himself be found to be hanged, some blood relation had to take his place. The idea that punishment chiefly in the form of imprisonment can be a remedy, is at once exploded if we reflect that the relation between the amount of crime and of the punishment inflicted in consequence thereof, has nowhere proved true in quantitative or even in qualitative analysis. The divine theory or that of the wisdom of the ancients in connection with punishment, therefore, is demolished. In like manner is the notion of the harm done to society being punishahle in no degree tenable. If so, the man who kills another by accident is just as punishable, as he who does the same amount of mischief with malice aforethought.^ But provided we simply view the harm done to society as a thing to be repressed or prevented and not punished, to that extent the utilitarian theory holds water and suffices for our ' It was discussed at the International Prisons Congress at Brussels last year. (1900.) ^Except in so far as that what oooiirs by accident, cannot b? considered as likely to recur. PEDANTIC PENOLOGY 27 wants. On these and many other like grounds it claims our support, through being in truth not only Insigne, ^naestis praesidimn reis, but also for us as fellow members of a common society our Grande decus columenque rcruni. Certain detection, a speedy trial so conducted as to elicit the truth and having nothing of the bagged fox hunt about it, the indeterminate sentence and effi- cient Houses of Detention presided over by proper officers and ministered to by thoroughly trained warders, will then be all we want, except perhaps an improved Prison Board, having at least one member an alienist, to overlook the condition of the defectives that of necessity figure largely in the floating population of our prisons. Better conditions of life before and after release belong rather to the ethics of government generally, than of penology in parti- cular, but are not the less necessary to prevent the constant recrudescence of crime. This view is the result of no idiosyncratic theories, but merely the automatic snap-shot of a moral Kodak, held in position by that frequently quoted but seldom encountered legal personage, " The Ordinary Keason- able Man," CHAPTEE II IN RE THE STATE VERSUS THE CEIMINAL- EX PARTE THE CKIMINAL. Section I- — Inteoduotory Not so many years ago a friend of the writer's saw a verminous convict on an English transport brutally flogged for bestowing some of the parasites, which he should have kept for the individual consumption of himself, upon a prominent of&cial of that vessel. This unfitness on the part of the said prominent official to adapt himself to his surroundings without taking offence thereat, marks him out according to the present contention for censure, rather than the altruistic conduct of the convict. For first the latter should not have been verminous, since it was partly the fault of officials that he was so, and second the convict was within his rights in trying to better his condition at whatever risk to one in so much stronger a position than he, and who but for his own THE STATE VERSUS THE CRIMINAL 29 contributory negligence could never himself have become verminous. For the purpose of this argument convicts are ever verminous, and when society suffers from the contagion it must blame itaelf and not flog the convicts. " Please don't shoot the musician — he is doing his best," is said to be the legend on the piano in many a drinking saloon in California, and we in England must learn from this as from many other American institutions how to treat criminals, who often are only doing what little they can for them- selves. Up to the present our repressive measures have lamentably failed^ in the case of professional crime. Nor is the reason far to seek. Vieux jeu is still played on this side the Atlantic, and politicians and officialism are the trumps and rules of the game. We learnt some time ago, because the medicine-man is always ahead of the jurist, that we must not put every lunatic into a straight-waistcoat to save our- selves trouble. But we have yet to learn in practice, that " punishment involving the loss of liberty but aggravates the conditions which tend to make a man a criminal.' An eminent authority once divided the race into those " who like their meat high, those who like it higher, and ' them fools as likes it stink- 1 In London in 1868 there were 345 burglaries, in 1899 the number was 447. 'Morrison's Juvenile Off e-nders, p. 274. 3o PENAL SCIENCE ing.' " Others with greater acumen have differenti- ated the condition of mankind by saying, " Some are born with silver spoons in their mouths, some with plated ones and the rest with none at all, except perhaps some spoons belonging to other people in their own pockets." The latter is too often the case of the juvenile offender, who, " as a rule, has either no home or else a bad one ; has either no parents or else bad parents." ^ Lecky has well said that the prostitute is the high priestess of humanity blasted for the sins of the people. Is not her offspring too often offered at the altar of crime, though strangely enough not so often as might be expected ? Such an one is without hope in the the world being unable to help himself, unless taken in hand by benevolent persons as happily not seldom occurs. The helplessness of the miserable was appreciated nearly 300 years ago in Holland and also in Germany, and rudimentary agencies in the nature of prisoners' aid societies were then started by the benevolent to meet the admitted need. The New York House of Eefuge was chartered in 1824, before any European country had an establishment for young offenders. France in 1850 took up the question, and passed special laws for the treatment of the young prisoner.^ ' Morrison, op. cit., p. 276 "Twenty years ago there were 62 " Estatlishments of Correctional Education," including 6 public agi'ioultural colonies, Statistiaue P^nit, p. Ixv. (1884). ^ THE STATE VERSUS THE CRIMINAL 31 But it is not only the young who need help and treatment different from that now meted out to our criminals. Such a paragraph as that which appeared in the Daily News of the 11th December, 1897, under the heading, " Tragedy in Wormwood Scrubbs Prison," bids us pause. From it we learn that a man of twenty-seven after eight previous convictions was ordered by the visiting magistrates to be birched in that prison. Some months afterwards he hanged himself with part of the material he was using in the light canvas work on which he was employed. At the inquest the deputy-governor said that the deceased was a bad prisoner. The governor did not appear, and the prison doctor deposed that he was perfectly sane. Is it not pretty clear that there was something wrong in this man's prison treatment, for which the authorities are responsible ? Krohne the German Prison Director says, that a good prison chief must have that which can never be got by learning — "a heart for the miserable, and a deter- mination in spite of failures and disappointments to despair of no man and of no thing." And the head of the Danish Prison Department at a prison congress said not long ago much the same thing. Is this not a serious comment upon the occurrence at Worm- wood Scrubbs ? Not long ago a sentry on duty at Wellington Barracks discharged his rifles at some onlooker 32 PENAL SCIENCE without rhyme or reason. Expert evidence was offered that the man was suffering from petit-mal. The judge Charles J. who was no alienist could not understand this, and the man was sent to jail instead of to an asylum. Here the judge failed, as Dr. Sander says judges do in 72 per cent, of cases in which insane prisoners are tried before them.^ In the case first mentioned, the administration of our present prison system failed, and failed lamentably. Such failure has been apparent to students of Criminology for years past, and this accounts for the great output of books on the subject by whatever name it may be called, of which however we have had but few in England. Unfortunately the terminology employed both by the Italian and French school of writers on criminal matters is so arbitrary and undefined, that it is difficult for a foreigner to appreciate the exact value of the remark- able results of their researches therein.^ To ensure a right understanding technical terms should be as far as possible eschewed and never coined, and conclusions stated in the plainest possible words. Speaking generally, although both schools propound the dogma that the born criminal is a more or less irresponsible being, they yet with perfect unanimity concur in ^ Morrison's Crime and Its Causes, p. 5. ■ As to the dangers of not understanding the terms used, see Maine Yillage Communities, Ed. 4. p. 353. ' THE STATE VERSUS THE CRIMINAL 33 recommending his being ruthlessly hunted down^ without any regard to the rules of hunting (be it only that of a bagged fox), as practised in England and English-speaking countries. Ferri and Garofalo the lawyers and Lombroso the great doctor, all scout the idea of giving the criminal (poor creature as they show him to be) any grace. When expostulated with they say that he is harmful to society, and that society must not be allowed to suffer through him, that there are many honest poor people who have not enough to eat, and that therefore prisoners must not be adequately fed and warmed in prison, although made to labour hard. This method is not unlike that of the continental sportsman, who when taxed with being about to shoot at a pheasant run- ning protested that he was only waiting till it stopped. If the honest poor are starving they ought to be fed, and though this should be done, the proper treatment of the prisoner should not be left undone, for two blacks do not make one white. Eoreiga savants also reproach us with still flogg- ing young offenders, which they have ceased to do. But this is surely mere sentiment \Yhen advanced by citizens of countries where executions are still carried out in public, as is the circumstance that Kanacks and Arabs have to be employed in French penal settlements, to prevent the dignity of French non- iBodley's France, p. 106, (Ed. 1899). 34 PENAL SCIENCE commissioned officers being injured by searching convicts and carrying keys ! We are told in Griminopolis^ that it is not the custom in New Caledonia to return the salute of an ex-oonvict. If this is the distorted view taken by the authorities in French colonial penal establishments of their obligations to prisoners, we need not pay too much regard to being blamed by them for flogging moderately our boy delinquents, which many think to be a far more excellent way than sending them to jail. In the works of most continental men of science we find attempts made to establish the fact that the born criminal is abnormal, there being included in this expression the criminal" lunatic, but excluded the criminal by acquired habits, and the criminal by passion as well as the occasional criminal. That such a one as the born criminal should be anomalous, is surely no matter for wonderment, seeing that in things relating to crime and its present correlative punishment anomalies abound. Voltaire promised one day to tell the tale of a wonderful robber. On being pressed for the story he began "There was a banker," and said no more. When begged to go on, he replied that the tale was completely told. On the foreman of a jury in a criminal court returning the verdict Guilty, a cynic ip. 85. THE STATE VERSUS THE CRIMINAL 35 once observed, " Guilty, who is guilty ? Le coupaUe c'est lejuge." The first anomaly then too often is the crime for which the prisoner is being tried. Why is he upon his trial with all the pomp and panoply of judge sheriff chaplain grand jury javelin-men trumpeters and other survivals of past barbarity (more clearly atavistic than the criminal), for stealing perchance something which was almost a necessity to him, placed possibly in such an easy position for taking outside a shop as to prove too strong a temptation for one of his unstable equilibrium and defective organisation to withstand ? Among others in court who are not going to be put upon their trial upon that occasion, there may not improbably be financiers company-mongers gamblers notorious toute et id genus omne. It surely is a worse offence to put out for example a dishonest prospectus of a company, a thing that is done every day by rich men in their attempts to become richer, the result of acting upon which is to bring widespread misery, when liquidation occurs, into the home of many a struggling bread-winner who has been deluded by its lies, than for a half-witted poor creature to steal out and out say a suit of clothes. But the mean thief goes to jail, while the company- promoter entertains the judge and county magnates. Staggerer number one, as Mr. Swiveller would say. And the second is like unto it. A prisoner is 36 PENAL SCIENCE sentenced to fine or imprisonment. If he can pay up any how, as for instance by selling up his home and thus making vagabonds of his wife and children as well as of himself, he goes forth a free man, if otherwise to jail. So that the accident of the possesion of money often determines his punishment in our carefully adjusted scheme of justice. But a greater anomaly still, remedied only by the Prison Act of 1898, was the following. If he had to pay say £2 or in the alternative to undergo hard labour for a month say on 1st April, and if he had not the £2 on that day and went to jail, but on the 15th April the money was somehow got together for him, he was not let out on paying £1 or half the money penalty, although he had by that time done half his alternative punishment, viz., spent two weeks in jail. But he had to pay the whole £2. We have here a recent example of a serious anomaly in punishment, as we had before of one too in the case of crime. Before showing the anomalous character of the criminal, we may as well notice an anomaly in the machinery for the application of punishment to the offender. The judge is seldom what he should be — that is a student of criminology. He is usually a man who has proved himself to be an able advocate in civil cases whose work has become onerous to him, and who now prefers an annuity of ;^5,000 a year (which he has had sufficient political influence to THE STATE VERSUS THE CRIMINAL 37 command) to a possibly larger but far more probably smaller income at the Bar. What knowledge has such an one of crime or punishment, or even of criminals ? "When the discretionary power of judges with reference to punishment is considered, there can be no doubt that the judge learns his business, if haply he ever does so at all, at the expense of the prisoners he tries during many an assize. Both Garofalo ^ and Lombroso ^ scout the idea of the same set of men being judges both in civil and also in criminal cases. The two have nothing in common. What these eminent men think of our methods of choosing criminal judges and magistrates (especially the great unpaid) who can know nothing of crime or criminals, it might be useful to learn. Ferri's sug- gestion ' that magistrates should be paid by results is perhaps chimerical, as who is to be the judge of the judges, but it deserves to bo noted as showing his view that not only the criminal but his judge stand alike in need of trial and amendment. The present writer heard an eminent Chancery judge on assize sentence an old man of nearly seventy to ten years' penal servitude, for having cut his old wife about the head with a bill-hook, which he un- happily happened to have in his hand at the time, ' La Criminologie. Ed. iii. p. 396. ' Les Application de I'Anthropologie Criminelle, p. 64. ' Criminal Sociology, London, 1895, p. 110. 38 PENAL SCIENCE during a quarrel about a dinner that was not ready upon his return from work. The man was undefended, and the old wife described graphically how the blood covered her head and ran down into her eyes. It was no doubt a ghastly story, but nothing else was alleged against the old labourer. The judge said that the reason he gave the prisoner this long sent- ence was that the old wife might not have to dread a repetition of her husband's cruelty, as at his age he would probably not come out of prison alive. The very next case tried by this kind-hearted old gentle- man was that of a jealous husband, who was defended by Mr. Montague Williams, for having killed the paramour of his wife with a razor, which he deliber- ately went to fetch for the purpose. This prisoner, owing in part to the impressive appeal of his counsel, got off with five years. Surely ignorance of the principles of penal science and mere momentary sur- face impressions had free vent in the punishment of these tragedies. A life had been sacrificed in the one, and in the other no lasting damage done. In the latter the weapon of offence had been deliberately selected, while in the former it was unfortunately only too ready to hand. An evil motive, jealousy, which has so often caused crime before, operated here also in the case of the death, whereas in the other mere momentary passion was the cause of a grievous but thoughtless wound. THE STATE VERSUS THE CRIMINAL 39 Seeing then that in crime and also in punishment, as well as in the connecting link between them, namely our method of administering so-called justice, anomalies abound, what wonder is it that the criminal should be found to be himself abnormal, if not at the time of the commission of the crime, at least after our prison treatment of him which is also highly anomal- ous? It takes a judge jury grand jury sheriff javelin-men, and a whole concourse of persons looking on to see fair play, to get a prisoner into one of our convict prisons, but it takes only the visiting authorities, on ex parte statements of prison officials ^ to punish often brutally the prisoner when he is once within their gates. Surely in any offence against officials, officials themselves should not be the judges, nor the inquiry be conducted in private. This is a matter of elementary justice that is sufficiently obvious to any one not on our Prison Board, which indeed does move in a mysterious way, as for example in its choice of prison officials. Is it probable that an old soldier or sailor will possess the judgment and tact necessary for dealing with criminals ? We do not choose nurses of the Mrs. Gamp type for our hospitals nowadays, but the best specimens of educated femininity available. Yet for prison officials we 1 Since the' Prison Act 1898 however only with the approval of the Home Secretary. See Sect. 5. To compare French methods see Code P^nitentia,ire Tom., xiii, (1890) pp. 350 et seq : 40 PENAL SCIENCE collect maioly such officers and men as want to be provided for, without giving them beforehand the training necessary for the job. One consequence is that we have a creature like the criminal, probably defective or of most unstable equilibrium to begin with or he would not be in jail, daily and hourly sub- jected to treatment at which even a man sound in mind and body would rebel, and at the mercy of guardians of the calibre of the average Tommy Atkins (glorified or plain), temporarily raised to a fictitious power and dignity with reference to the criminal in question ! What wonder then that our prison treat- ment makes him more anomalous than he was to start with ? His original anomalies we shall now proceed to touch upon. Section II. — The Anomalous Nature of the Criminal. The Italian school along with many French men of science regard the typical criminal — that is the born criminal and the criminal lunatic — as the irre- sponsible victim of heredity or atavism or of both. The French school as exemplified by M. Fere the eminent doctor of Bic^tre, kick at the idea of the criminal having reverted to the ways of prehistoric man. This they consider a ■priori improbable, and based on no better data than mere conjecture. Furthermore in the view they take, the type is suffi- THE STATE VERSUS THE CRIMINAL 41 ciently to be accounted for, without praying in aid anything so distant and uncertain as an atavistic first cause. But the majority of doctors both in France and Italy appear to regard the criminal only as the result of evolution, and deny the exercise of free-will, at all events usually, in his case. They further regard his type as primarily physical, because in a large proportion of cases he bears outward and physical signs differentiating hira from his brother man. All agree that he is of a low order of sensibility, remark- ably careless in the way he commits his crimes, vain to a degree and incapable of remorse, also usually a recidivist. Most savants in fact regard him as a distinct anomaly, just as the lunatic or the epileptic. To generalise was once not inaptly defined as to tell general lies, and with this before us the following view suggests itself. First, is there among criminals at the outset of their career, that is before the habit of crime or the prison habit is confirmed in them, as is the drinking habit in the habitual drunkard, any fixed type at all ? Is there not here merely such a congenital state of unstable equilibrium as admits of being more easily upset and turned to crime, than obtains in the case of the hypothetical reasonable man ? The existing state of the body acts upon the state of the mind, and both together are responsible for the springs of action which give rise to conduct, in so far as it is not tempered by character and 42 PENAL SCIENCE environment. "Human actions, whether honest or dishonest social or anti-social are always the out- come of a man's physio-psychical organisation, and of the physical and social atmosphere which surrounds him.i Character is the result of the habitual state of mind as affected by the state of the body, the natural intelligence and the environment of the individual, and character and conduct act and react on each other day by day. If we have the child of criminal or of drunken parents, improperly brought up and thrown on his own resovirces at an early age, what more natural than that he should turn his 'prentice hand to picking or stealing, or if offended to cutting and wounding ? This is merely following the line of least resistance, into which the less robust as naturally slide as apples fall to the ground. Wiien the physical and social factors of crime, as for example climate in the one case and density of population in the other, are properly taken into account, along with the factors inherent in the criminal and not forgetting his per- sonal characteristics, Ferri is of opinion that the causes of crime are explained. But he relies also on atavism and heredity, excluding the doctrine of free- will, and to a great extent that also of moral responsi- bility. As regards atavism, we do not know that man in 1 Ferri's Criminal Sociology, London. 1895, p. 52, where the views of Bentham, Lombroso, and Morselli are given in a note. THE STATE VERSUS THE CRIMINAL ■ 43 the early ages was the ruffian the imagination of the Italian school delights to depict him. We find buried with him in the burying place of Belgian Quaternians objects, as, for example at Cro-Magnon, which show that he believed in a future state. De Quatrefages^ says that the Belgian Troglodytes appear to have been remarkably pacific. We are further told by Broca Top^nard and De Quatrefages all great authorities,^ that " contemporary man in his fundamental morphological characteristics does not differ from prehistoric man, or even from the man of Neanderthal in the bosom of the same race." And the skull has been found of a man of the race of Cro-Magnon which was cubed at 1,590 centi- metres cube, i.e., 119 centimetres above the average size of twenty-five Parisian skulls belonging to the nineteenth century. The reason why atavism is relied on by the Italian school is, because they see no traces of morbid heredity in the family of many degenerates. All that can safely be said as to this has been said by F^r^^ namely that criminality and degeneracy are often associated both physically and psychically, and that both have a common heredity. When it is borne in mind that drunkenness of parents old age at the time of conception and bad 1 Hommes Fossiles, p. 73. "Archives d'Anthropologie Crirainelle, Ed. 1889, p. 241. ' Deg^n^rescence et Criminality, p. 70. 44 PENAL SCIENCE hygienic conditions, account for so much degeneracy, there is little need to go back to prehistoric man or even to contemporary savages to explain the existing conditions of the criminal. On the other hand, the r6le that heredity plays in the drama of criminality is that of protagonist. Though we may not always recognise it in the born criminal, we generally are able to do so in the criminal lunatic. The chief difficulty is that the born criminal is sometimes the child of honest parents, and that the child of criminals is often apparently honest, and certainly does not come within the clutches of the law.^ But it has been well said that ^heredity does not suppress reason and liberty, so that when this is borne in mind the present difficulty almost vanishes. Doctors who see the effects of heredity on the bodies of men are [too apt to overrate its psychical efiects, which are to some extent capable of correction and modification. Indeed to such lengths have some gone, as to propose that criminals shall be prevented from being fathers and mothers. Those who believe that there is implanted in the sons of men a natural sense of justice, and do not attempt, as does M. Tarde, to separate moral responsibility from freedom of will or deny it altogether, are often more correct in the values we put upon atavism and heredity in 1 "Paul Mimande's" Foroats et Prosorita, p, 129. THE STATE VERSUS THE CRIMINAL 4s making for crime than are the Positivist school, who are in effect mere fatalists. Giving then no value to atavism and but a modified one to heredity, how is it, as we put it, that the habitual criminal is anomalous? The answer is because he has acquired a type often physical and always psychical, which enables him in the great majority of cases to be recognised by the experienced criminologist. Garofalo^ says that he has only been mistaken in seven or eight per cent, of cases in distinguishing thieves from homicides in prison, and that he agrees with Marro that " all thoso who occupy themselves in the physical study of criminals come to the conclusion that they are beings apart." Again Ferri says,^ " In my experience as counsel and as observer, I have never had any difficulty in classifying all persons detained or condemned for crimes and offences, by relying on organic and especially upon psychological symptoms." Moreover, Tarde points out that th6 classical head is a perfect contrast to that of the criminal, whose ugliness is his most pronounced characteristic, and that out of 275 photographs of criminals he could only discover one pleasing face.^ And Lombroso * notes and explains ^La Oriminologie 4 Ed. Paris, p. 75. 'Ci-im\nal Sociology, London, p. 46. ' Criminalite Comparae, Paris, 1886, p. 16. * L'Homme Criminel, p. 265. 46 PENAL SCIENCE the curious likeness of Italian criminals to their confreres in France and Germany. The habits of criminals, such as speaking a curious slang herding together and so often being tattooed, as well as their writings, go still further to mark them out as differing from other men. Some psychological peculiarities, such as extreme lack of caution vanity freedom from remorse callousness and cruelty, are so frequently to be observed in prisoners, that taken in conjunction with the physical characteristics already noticed they mark them out as anomalous in mind and body, or in both. Lombroso ^ says that in some children tliere is a natural predisposition to crime for which education can do nothing, in cases where they are degenerates and marked by heredity. On the other hand he seems to be of opinion, that education can and does produce criminality especially in conjunction vviih heredity, though the mere opportunity of commit- ting crimes cannot create a criminal but only bring a latent one to light. It would appear then that sufficient anomalous characteristics exist in the great majority of true criminals, to be detected easily by the seeing eye of the criminologist. Having now prospectively found our criminal, the next question is, are we doing the best we can with him at the opening of the twentieth century ? And 1 L'Aiith. Crhn. Paris, 1896, p. 15 and p. 93, THE STATE VERSUS THE CRIMINAL 47 afterwards is there nothing we could do better with him as far as our knowledge at present goes, for our own sakes as well as for his ? Section III. — Pdnishmknt We are told that about one-third of the total crime committed is brought home to the criminal, and that something like 40 per. cent of criminals continue after punishment in crime. When a man breaks any one of nature's laws, without doubt he is automatically punished therefor.^ Hence, as is well shown by Mr. Herbert Spencer, nature's punish- ments are really repressive. It is for this reason that he advocates the use of similar methods in the education of children, as for example allowing a child who will play with a lighted candle to burn itself as the natural consequence. But if two-thirds of the crime committed goes undiscovered, there is ex Jiypothesi no certainty of punishment, the very thing which constitutes its chief value. The law's delays are proverbial. What is more ridiculous as well as unjust than keeping a man waiting for his trial three months or more? Punishment to be of any use at all must be speedy and inevitable. Crime and punishment are always coupled together by the classical school, but under their regime crime more iRaro antecedentem soelestiira Desdruit pede poena claudo, Hor. Od. iii. 2, 31, 2. 48 PENAL SCIENCE often follows punishment than punishment does crime, and juries involuntarily kick against injustice being dealt out to their fellow-men, in whose shoes they know that they may be standing at some future date. Hence the number of acquittals. The classical school has done little good except in so far as it has miti- gated the rigour of the past in checking brutal sen- tences, although many are still pronounced in England every year, as for example for the crime inUr christianos non noviinandum, which nevertheless is still tried in open court, and sometimes mentioned if not fully reported by our high-toned daily press ! For real criminals, who form 50 per cent, or so of the whole company of prisoners, Ferri fairly shows ^ that punishment is no legal deterrent. They take it as a necessary incident in the profession of crime, just as they would do the risks of a handicraft. Bentham well says that if punishment were effective then must crime cease to exist. But as oa the contrary it has a tendency to increase, and the number of relapses is generally between 50 and 60 per cent.^ a strong prima facie case is made out against its continuance, at all events in its present form. "We claim therefore that statistics show the uselessness of punishment as now generally inflicted in Europe. Of course jurists, and among them even M. Tarde, ^ Criminal Sociology, p. 95. See p. 56, inf. »Id. p. 14. THE STATE VERSUS THE CRIMINAL 49 still cling to the old notions of the efficacy of punish- ment for converting the soul of the criminal, and finding him a place of repentance. One reason for this will be found in the natural conservatism of the legal mind, engendered by education and fostered by habit and surroundings. Authority the lawyer must have, whether it be the maxim "Whoso sheddeth man's blood, by man shall his blood be shed," which has filtered through the ages down to our time, or the equally vicious doctrine that revenge is a proper factor in punishment — revenge that is for the wrong society has suffered, a notion which is really as medieval and fictitious as that of the outrage done to the "King's peace, his crown and dignity," by certain offences which have to be paid for. But Prins the great Belgian as well as Ferri and Garofalo notwithstanding their vast legal learning, all admit that for social evils we require social cures.^ Allusion has already been made to our defective methods of punishment by reason of the ignorance and incapacity of those who perscribe it, and of those who see to the administration of the prescription. The same only to a greater degree has been noticed in Eussian and French penal settlements. The result of all alike is recidivism. Indeed the fact of recidivism has only to be properly understood, for it to be recognised that punishment too often manu- ild.,p. 97. 50 PENAL SCIENCE faeturea the true criminal out of the occasional one, instead of, as its advocates claim for it, stamping out crime by turning the wicked man from the wicked- ness that he has committed, and making him after- wards do only that which is lawful and right. Modern methods of punishment as for example solitary confinement and improper classification of prisoners, to say nothing of excessive labour in some cases on insufficient food, require reorganisation, which has been attempted with success in America. The prison staff must be chosen from a better class, and doctors of the highest eminence placed in charge of prisoners, before any real good will be done them by detention. A luxurious hospital for moral invalids is as absurd an institution as a house of correction for anomalous criminals who are for the most part incapable of improvement, though they may be and often are worsened by association in penal establishments.^ Section IV. — Eeiorms Proposed It is easy for any one who has seen much of the treatment of prisoners in actual operation to point out faults in existing systems of dealing with crime and criminals, for they are for the most part so glaring that he who runs may read them. All that is required for this is to have had the opportunity, ^ " Paul Mimande's " Criminopolis, p. 23. THE STATE VERSUS THE CRIMINAL 51 after an adequate study of the principles of criminology, of observing the ways of criminals, and especially how they undergo their present modes of punishment, and what they do with themselves afterwards. But it is no such easy matter to suggest apt means by which those who react instinctively against repression and are uniformly disobedient may be turned to the wisdom of the just, if haply this may ever be found out. In recommending that the scope of our penal laws may be restricted in some cases, it is not proposed to quote as an authority for this proposition to be followed slavishly, the prescrip- tion of the wiseacre who rejected the excuse of a plebeian, whom he had ordered to get out of the way, that this was impossible by reason of the wall that was behind. This prescription was " Then get out of the way, you and the wall too!" No. It is not because we cannot get rid of our criminals by force as some foreign savants hint at doing, that therefore we should allow every one full licence to do as to him seems good. All that is here meant is that grandmotherly legislation does not do any good to society, and even tends to manufacture criminals by rendering men disobedient to unnecessary restric- tions, and so discontented and racalcitrant generally. This has been well shown to be so in Mr. Herbert Spencer's Man versus the State. Not that the policy 52 PENAL SCIENCE of letting things work themselves out alone will do in the present complex and advanced condition of our social organisation. Bagehot's statement, that benevolence in bolstering up the weak who would otherwise go under " has perhaps done as much evil as good, if not more," won't help us. For in England and every country where positivism is not running riot, it is well recognised that the strong must help the weak, even the submerged tenth who cannot help themselves, and that in so doing they will reap their own reward. Therefore a criminal code, the spirit of which should be not very unlike that of our present scattered penal statutes, and in many respects even similar to our judge-made law, cannot be done with- out. The exact provisions of the code do not so much matter as long as they are applied to the criminal according to his particular deserts, and not merely by picking out the offence he has committed and applying mechanically the penalty usual in like cases, and agreed upon among judges once for all as appropriate to the average criminal who has committed that particular crime. Each punishment should be most carefully adjusted to each criminal after an exhaustive consideration of his physical and psychical condition, and all the circumstances under which his ofifence was committed. The judge should be one who not only knows criminals and their ways, THE STATE VERSUS THE CRIMINAL 53 but also all about prison and prison treatment. Por this purpose a lawyer, however eminent in his knowledge of law who knows but little of physiology psychology and psycho-pathology and that only as an amateur, is useless.^ The lawyer is a very useful person to find out whether or not the crime has been committed by the criminal, and whether the evidence of his past history is deposed to by truthful witnesses or not. But the expert who sees hitn day after day alone can satisfy himself as to his trUe characteristics, and their most likely method of treatment. He should be a man of science of the highest type, and altogether different from the pre«(eni prison doctor. On him should depend the reSpofisibility of fixing the amount and nature of the foOd and work to be done by each prisoner. His fedommendation as to when he should be discharged Should also always be attended to. There is much tO be said for the system of indeterminate sentences which meets with so much approval in Belgium. But of course what is even more important than the way of dealing with the prisoner is the prevention of crime. With the existing "born" criminal little more can be done than to keep him under such conditions that he cannot be hurtful to society, and these con- ditions should not be too miserable, for he is usually incapable of reform. As he dies out a milder class 'Ferri, Crim. Soc, p. 169. 54 PENAL SCIENCE will exist for whom much may be done, especially by improving the regulations with reference to poor-law relief, and by looking after those who are discharged from prison. Although education and a proper appreciation of the doctrines of Malthus will not cure a " born " criminal, it will prevent many a one from taking to crime as a trade and for the support of a large family. Drunkenness again and our bad liquor laws are the cause of a great deal of occasional crime. Those who are punished as they now are for this offence often become vagabonds, as did the famous Jane Cakebread of police court celebrity. The oppor- tunities for obtaining liquor should be curtailed, and very heavy money penalties laid upon its sale to drunkards or young persons. And apropos of money penalties, the use of these should be extended in all cases where one individual has suffered at the hands of another. If the offender cannot pay, he should be obliged to work out the recompense under the supervision of the State. When these and many like reforms both in and out of our prison-houses have been effected with a will, and not to suit his private ends in the smug and Pharisaic spirit of the professional academic politician, who is one of the most malign of modern growths, then and not till then will the criminal lose his anomalies. CHAPTEE III THE BETTEEMENT OF THE CRIMINAL Garofalo tells us that in Europe and the United States of America about eighteen thousand murders are committed every year, and Tarde^ that without doubt during the last half century the number of crimes and offences has increased. The latter mentions as an example that in France, although the population has only increased from thirty-one millions in 1826 to thirty-seven millions iu 1880, the number of ordinary offences has multiplied three-fold. And Morrison^ says that the number of juvenile offenders in England has risen within the last thirty years, and that this has also been the case in the United States as well as in Scotland. ^ Although statistics from the imperfect way in which they are compiled are often inaccurate and sometimes mis- leading, the above figures may be taken to be sub- stantially true and correct. ' CrrnvmaliU Comparee, Third Edit. p. 68. ^JwueniU Offenders, 1896, p. 14. 'p. 281. 56 PENAL SCIENCE With reference to old offenders Tarde, who was an examining magistrate before he took charge of the Statistical Department of the Ministry of Justice, and who is therefore presumably the best informed authority on the subject, states in the book already quoted,^ that froni 1828 to 1874 the proportion of recidivists almost doubled, while between 1850 and 1879 it increased by more than one-third. So that out of every hundred prisoners throughout the whole of France, thirty-two are found to have been con- victed before. Ferri who considers French legal statics remarkably adapted to the most minute inquiry, asserts in his Criminal Sociology^ that habitual criminality would be represented in Italy by about forty per cent, of the total number of con- demned persons, and by somewhat less in France and Belgium. But with regard to Belgium Tarde tells us ^ that that country, although it has no penal colony and consequently no way of getting rid of its worst criminals, presents a constant decrease both of crimes and offences, and this he attributes in part to the cellular system in operation there, and in other part to the number of Prisoners' Aid Societies actively at work in that little State. Tarde also says* that in France property and I authority are respected less and less now-a-days, and 1 p. 82. = London, 1895, p. 20. 'Criminalitt Oomparee, p. 87. *Ibid, p. 71. THE BETTERMENT OF THE CRIMINAL 57 that the unprincipled classes and the vagabonds go on increasing day by day. He sets this increase of crime down to the growth of cupidity, and states that between 1826 and 1830 it accounted for thirteen per cent, of the assassinations murders poisonings and arsons. Between 1856 and 1880 the proportion rose to twenty per cent., and, though it fell to seventeen per cent, between the years 1871 and 1875, it rose again between 1876 and 1880 to twenty-two per cent. On the other hand love which was the motive cause of crime in thirteen per cent, of cases fifty years ago, is now only accountable for eight per cent, even in France. But bad as are these figures, far worse are those which relate to particular localities. In the village of Artena in the province of Kome, the number of crimes of violence that are committed is six times greater than the average in Italy of similar offences, while Italy itself is remarkable as producing the highest numbers in this class of crime. Artena also furnishes thirty times more instances of highway robberies than does the average Italian place of similar size. Again a race of criminals is to be found in France in a series of hamlets on the outskirts of the forests of Thi6rache, which are a continuation of the Ardennes. In both these districts there exist families in which crime is transmitted from genera- tion to generation, and which seem to exist only for the purpose of exemplifying the truth of the old 58 PENAL SCIENCE proverb, Bon chien chasse cle race ^ a fact with which we may compare what Mr. Dugdale tells us of the Jukes family, of whom ten per cent, became criminals and half were bad women. ^ Tarde dealing with these and similar facts in his Criminality Gomparee, comes to the conclusion that the criminalist Should no longer be a mere jurist, that the protection of the rights of individuals must be no longer his sole object, that he ought to be a philosopher and a statistician, permeated with a desire to further the general interest.* Garofalo* explains at length how and why the mere lawyer is necessarily unfit to deal with criminals. It is because he knows nothing about them, and thinks only of the crime which has been committed and its exact legal definition, not of the criminal who did it. This view too is quoted and referred to with approval by Lombroso, in Les Applications de V Anthropologie Criminelle. It would seem then that, notwithstanding the differences which exist between the French medical school and the Italian legal school in some matters of lesser importance, at least upon two points there is a consensus of opinion on the part of those who are best known on the Continent as authorities upon 1 Lombroso'a Psyehiatrie, Paris, 1892, p. 121. a Study in Crime Pauperism Disease 7. ' Preface, p. vi. ^ Op. cit. p. 395. " The Jukes : a Study in Crime Pauperism Disease and Heredity New York, 1887. THE BETTERMENT OF THE CRIMINAL 59 Penology. These are, first the rampant nature of crime and its dangerous character wich reference to society at the present date, and second the fact that existing codes and their modes of application by the kind of judges we now have, as well as the treatment of criminals throughout civilised Europe at the present day, all alike manifestly need reform. While the literature upon this and kindred subjects in French Italian German Eussian and even Spanish is voluminous, in England we have only two writers, apart from the compilers of Criminal Law and Legal Medicine text-books and the reporters, who seem to have even a nodding acquaintance with the criminal of to-day. The Eev. Douglas Morrison, late assistant chaplain of Wandsworth Prison, has written two books, Crvme and its Causes and The Juvenile Offender, and is responsible for translations of Lombroso's Female Offenders and Ferri's Criminal Sociology. Mr. Havelock Ellis has given us in Walter Scott's Con- temporary Science Series The Criminal, and, although he says that he has written it simply because he could get no one else to do so, it is by far the most valuable text-book on Criminology extant in the English language. But The Criminal is the book of a scientific man of letters, rather than of a practical magistrate who has had a clinical training in physical and psychical science, which is what is really needed. In this absence then of contemporary literature in the 6o PENAL SCIENCE vernacular about the criminal and the way to benefit him, let us consider how modern penal codes for the most part fail and where they need revision, and further how the application of their provisions to each offender may be palpably improved by means of alterations in existing forms of procedure. Heretofore the idea has ever been to regard crime as an abstract thing, and to attempt to deal with its effects as being dangerous to the body politic. Now- a-days the continental schools have begUQ to make it clear, that it is the particular criminal with whom society has to reckon through her agents the magis- trates and police, and that it is he and not the mere isolated acts themselves which he from time to time commits that constitutes the true danger. For example Lomhroso says of the new Italian code, which is the outcome of nearly thirty years of theoretical study by the best Italian criminalists, that in it crime has been studied without even regarding the criminal from afar off, or taking notice of the most certain practical observations that have been made concerning him.^ In England, notwithstanding the enormous discretion given by our criminal law in apportioning the amount of sentence in each case, the idea of uniformity of sentence has hitherto paralyzed the good intentions of individual judges, and has pre- vented them from looking into the merits of each ''^ Les Applieationa de V Anthropologic CriminelU, p. 17. THE BETTERMENT OF THE CRIMINAL 6 1 case as it comes before them. To take an illustration. It has been thought better by our judges in council assembled, to agree to give every apparently similar case of, say, embezzling a sum like £100, nine months' hard labour, than to go thoroughly into the reasons that made each particulai culprit do it, and the effect that the sentence of nine months will probably have upon him and on those dependent upon him, and whether it will be upon the whole for good or for evil. Obviously it is no easy matter to gauge correctly the motives of another human being. No X rays can be applied to his moral sense, nor can we ascertain exactly in what way the organic mental and personal factors have there combined to make for crime. A good deal can however be learnt about the history and character of the man, and it should be quite possible to ascertain whether for example drink poverty gambling extra- vagance imbecility or malice brought about the misdeed. The simpler matter far and that of .lesser importance is the question whether he embezzled the £100 or not, though this is in truth the entire nut that the Nasmyth hammer of our present criminal law is required to crack. What society wants to learn in return for the trouble and expense of uphold- ing and using the expensive machinery of justice, in order that it may suck thereout some small practical advantage in the way of self-protection, is how to prevent the criminal from doing the same sort of 62 PENAL SCIENCE thing again, and others from following his bad example, and to this end why he did it, and what series of circumstances led up to so anti-social an act. Moreover how amends are to be made to him who has been robbed, in so far that is as he did not conduce to the offence by contributory negligence on his own part — a doctrine which should be of strict application where possible in every case of crime. All these matters are threshed out by the examin- ing magistrates throughout the Continent in private interviews with the accused, and corroborated by inquiries made by an active and efficient police. It is not sufficient to take cognizance of the criminal at the moment of the perpetration of the crime. He must also be studied before and afterwards.^ "We may object to these methods of arriving at the truth as being un-English. But is it not better that the truth should be got at, than that justice should strike in the dark ? Police testimony may be prejudiced. The accused may incriminate himself when questioned by an intelligent magistrate. But these are lesser evils than that the prisoner should get off without just reason, or if found guilty be sentenced to nine months of jail as a sort of common form. Moreover the practical mind of the Frenchman has recognised the mistake of allowing the examining magistrate to have unlimited power to incriminate the accused in ' Proal'B Lt Crime et la Peine, p. 120. THE BETTERMENT OF THE CRIMINAL 63 his private interview with him, and the prisoner is now allowed for the first time to have counsel during every examination. This has counteracted the exist- ing evil in the system, and there can he but little doubt that thus revised French methods are very much more efficacious in striking down crime than our own system, which has hitherto proved itself to be both ineffectual and incomplete. In order that preliminary investigation as to the character and antecedents of the accused may be thoroughly carried out, our machinery must be re- constructed on a new model. The unpaid magistrate is too much under the influence of the solicitor who happens to be the magistrates' clerk,^ or if not has only his own common sense upon which to rely when coping with the professional criminal, who is up to every move on the board. He does not therefore make much of a court of first instance to trust to. For this purpose the stipendiary is naturally better fitted, for, although not brought up to the business as a judicial official is on the Continent, he no doubt often becomes familiar in time with prisoners and their ways, by reason of his constant opportunities of seeing them. But with us everything takes place in open court for the edification and instruction of the prisoner's accomplices and friends, and any loafer that wants an object-lesson in the way to commit crime. 1 See p. 91, inf. 64 PENAL SCIENCE The prisoner himself is on every occasion begged not to say anything about the matter under investigation which may be used against him on his trial, the very converse of the method adopted with success through- out the rest of Europe. There they appoint as examining magistrates men of the stamp of M. Tarde and M. Proal, men learned in physiology psychology and psycho-pathology, and who above all have a personal knowledge of criminals, and adequate oppor- tunities of getting at the truth about them in each instance. Hence the case is there got up much better as a rule at its commencement than with us, and so when the trial takes place, the judges are in posses- sion of all sorts of information about the prisoner, such as never comes to the knowledge of the English court. Indeed were it not for the sentiment evinced too often by the jury, which sometimes even takes the form as in Ireland of sympathising with certain classes of popular crime, no grave fault suggests itself to the unprejudiced mind in the usual continental methods of triaj. When we come to the sentence, if it has to take the form of imprisonment at all, probably the least harmful is that which is called indeterminate. The principle involved in this form has to some extent been adopted in England in criminal lunatic asylums, and even in penal establishments, where the male convict can by good conduct earn the remission of THE BETTERMENT OF THE CRIMINAL 65 some fourth of his length of sentence. "What is wanted in this connection is that the prison autho- rities should be men of the highest calibre and most refined sympathies, and that the discretion now vested in judges, who have no data upon which to exercise it, should be transferred to the directors and chief medical officers of penal establishments, to be used by them only after they have studied the prisoner during a considerable period, and informed them- selves thoroughly of his antecedents. A man while in confinement is either reclaimable or irreclaimable. Competent officials will at length see to which category he belongs. If irreclaimable, he must never be lost sight of on discharge, and, if his crime is serious and he proves a recidivist, he should be incarcerated for the rest of his life, to prevent the contamination of others consequent upon his being at large. But the course to be adopted with the reclaimable portion of the prison population will vary according to the cause of the fall of each, and it is here that knowledge of character normal and abnormal by .officials can be brought into full play. "What will do for one will not do for another. Indeed it will vary to some degree in almost every case. This being so, the machinery of our houses of detention as well as the staff must be enlarged. Lessons ought to be taken from America and Belgium, and the physical and moral condition of the inmates more thoroughly cared 66 PENAL SCIENCE for. The treatment of the Asylum should be incor- porated with that of the House of Correction, though not entirely substituted for it. And above all, the prisoner must be made to work, so as to provide if possible compensation for the person he has injured by his crime. This will involve his acquiring the habit of useful labour and will improve his morale, which is now too often worsened by dreary work obviously useless and unproductive. He must not be underfed or overworked. Such treatment unfits him for the battle of life when again a free man. In the course of such work he must be so supervised, that he cannot do damage to others or be damaged by them himself. Perhaps as good influences are exercised upon female convicts in French penal settlements by the nuns who have them in charge, as by any other exist- ing agency. To their devotion unprejudiced testi- mony is borne by "Paul Mimande" in Forcats et Proscrits, while the good result of their sweet influ- ence is seen in the future of many of these women as colonists. It is association such as this that is required for criminals, who during detention are not unseldom in the mood to profit by kindness judiciously displayed. Casual visits from persons however well-meaning who do not understand the character of prisoners often only lead to deception,^ and serve no useful purpose. We see here one of the faults ^ Beviu des Deux Mondes, Ay. 16, 1887. THE BETTERMENT OF THE CRIMINAL 67 of the system at Elmira, where well-meaning but ill- advised visitors often irritate prisoners by their lectures, as is well shown by Mr. H. Ellis in The Criminal} And this is why voluntary agencies for the reform of our prisoners effect so little, when undertaken by those who have the will but not the knowledge to do good, and so much when in the hands of proper people, as for example of Mr. Wheatley or Mr. Holmes. Cant must not be encouraged, nor should value be given to good works promised and not actually performed by instalments. In this way only will the prisoner at the end of his time hive benefited by temporary loss of liberty, and not find himself as is frequently the case now even further enervated and unfitted for the struggle of life when again a free man, than he was to begin with. Most students of criminal biology agree, that the innate criminal is a poor creature in mind body and estate. That for him there is far more difficulty in exercising self-control, than falls to the lot of the ordinarily reasonable healthy citizen. The same probably applies though in a less degree to the habitual criminal. For although he may not accord- ing to Weismann and Galton be able to transmit his acquired propensities to his offspring, as the true type will probably transmit those which are congenital, he has nevertheless, as the result of his long career of 1 P. 262. 68 PENAL SCIENCE crime, become personally the slave of most of the defects of the innate criuiiual. But for all this each man however bad has some soft note, which can be touched by the hand of the skilful artist playing on the gamut of his discordant feelings. For instance although cruelty lies at the bottom of all the worst crimes, and is that which renders the criminal essentially anti-social, yet we have the authority of Destoievsky and M. I'Abbe Croze and M. Oppert, quoted with approval by Mr. Havelock Ellis,i and also of M. Proal,^ that the most hardened criminals are not exempt from great good- feeling towards the sick. Mr. Ellis says "This tenderness is the pleasantest spot in criminal psycho- logy. It is also the most hopeful. In the develop- ment of this tenderness lies a point of departure for the moralization of the criminal. What a ruined fund of fine feeling for instance was concealed in the young thief recorded by Lornbroso, who committed suicide by hanging, having first set his shoes on the bed between two straw crosses, as though to say, I am going, pray for me ! 'If one thinks of it ' says Lorn- broso 'it is a pathetic poem.'"^ And M. Franck well says "Man in his lowest state of degradation remains always a human being,'' a moral being en- " The, Griminal, p. 193. 'Op. cU., p. 110. »0p. cit., p. 155. 4Cf. Cox, Principles 0/ Funishment, p. 229. THE BETTERMENT OF THE CRIMINAL 69 dowed with a conscience reason and liberty, who without having actual use of faculties which have been obliterated by crime, can recover such use of them from one minute to another under the spur of suffering of shame and of repentance." The criminal is not a being devoid of all personal and moral responsibility, who acts as he acts because he cannot help it like a reed shaken by the wind. This indeed is something like the view taken by the positivist school of the born or instinctive criminal. It may be true of the defective in many cases, but it is true of him alone among the soldiers of the army of crime. Although in bad cases of recidivism there is nothing for it but to segregate the offender for the term of his natural life, this is because he will not summon up the strength of will requisite to keep himself from evil and learn to do good, even when placed in circumstances in which it is not exception- ally difficult for him to do so. He could do so if he liked. Otherwise he would have been predestined ^ to an evil life, a thing we can never believe. But for every offender who is not a hardened recidivist there is hope. When he has found out by experience that the ways of transgressors are hard, if a proper chance is given him on coming out of prison, and he is looked after and not allowed to relapse into the hands of evil ' Schopenhauer, Essai sur U libre Arbitre. Aloan, 1896, p. 12. 70 PENAL SCIENCE companions, he may and often does consider his ways and become wise. It should never be lost sight of, that the foundation of punishment inflicted by public authority is the right of self-preservation inherent in society. Society punishes to preserve itself.^ And in considering the problems of crime and the way to deal with them, it is of no little importance to recognise clearly that the criminal justifies his crime from a similar point of view.' Except as against his brother criminals, he considers that he has a right to steal anything he cannot well do without. This is his idea of self- preservation. Hence just as society must not punish except strictly to preserve itself and keep itself safe, so the prisoner should be prevented on coming out of gaol from being, except from his own fault, in such a position as to make him believe it to be necessary for him to steal to prevent his being hungry. Prins the great Belgian philosopher and director of prisons says' that the worker is always on the borders of crime. The entire working class is exposed in the first line, and whether it is a question of disease or of crime, it is those who go under first. It is in this belief that Ferri* proposes what he calls penal sub- •A. Franck, PhilosopMe du Droit Final, p. 155. See p. 32. inf. » H. Ellis, The Criminal, p. 193. ' Criminality et BepresHon, p. 17. * Criminal Soeioiogy, p. 113. THE BETTERMENT OF THE CRIMINAL 71 stitutes as an alternative for mnch of the existing punishment. This means that legislators by trying to improve the condition of the poor, will cause their activity to be " insensibly " directed into non-criminal channels, where only the minimum attributable to the law of saturation of crime, which is inevitable in every community, will fail to be stamped out. It woald seem then that the condition of the poorer classes should be improved, in their interest and in that of society. In order to stamp out crime, just as in the case of hydrophobia, the habitual or born criminals must be muzzled until such time as those at present alive cease to exist. The punishment should be quick and inevitable, and take more the character of treatment though sharp and unpleaaant than of useless toil and repression. The persons who see to its administration must be of a higher class than they are now, and magistrates and judgeS should be instructed in criminology as much as or more than in technical law. Our code or rather that body of law — statute and judge made — which stands for us in the place of a code should be revised, by eliminat- ing every offence such as poaching or smuggling for example which ia not absolutely necessary for the self-preservation of society. Eeparation for wrong to the individual damaged should, as far as possible, be made by the offender. And finally the offender on being released, ought to be kept under the eye of 72 PENAL SCIENCE a considerate police, and work found for him which he is capable of doing.^ In this way only will crime diminish, and we shall not then hear each year, as we do now in Italy with a similar population to England of 3,782 murderous outrages, or even of 250 in our own country or of a yearly average of nearly 50,000 condemned persons in Italy and 170,000 in France, not including habitual criminals. ^Tallack's Penological muL Preventive Principles, ed. ii., p. 173. CHAPTEE IV THE law's delays Two curses of Feudalism, survivals of which are still seen in our Criminal Courts, are the disposition to confound accusation with guilt, and to mistake for disloyalty the defence of a prisoner accused by the Crown. Among abuses arising from these capital errors, there used to be the inability of the accused person to call evidence in his own favour. Until the reign of Queen Anne no one accused of felony could produce witnesses on oath, nor was it till about the time of the Eeform Bill that counsel for prisoners were allowed to be heard in their defence on serious criminal charges. At the present day, the Attorney or Solicitor- General gets the unfair advantage when prosecuting of the last word, as in Dr. Collins' trial,^ nor can any Bang's Counsel defend a prisoner without a license which costs £1 5s. Od. But these are not the only relics of past barbarity which each Attorney and 111 July, 1898. 74 PENAL SCIENCE Solicitor-General for the time being has upheld, " officially prophesying in the case of every proposed alteration the utter destruction of the whole juris- prudence of Great Britain."^ To lawyers generally whether office-holders or merely office-seekers, nothing which is customary is ridiculous. And in their defence of existing enormities, it is curious to note the absurdities to which ability driven to despair has sometimes had to resort. To take examples. The alleged expense that would be caused to those upon their trial for murder, as well as the invariable clearness of the case against those accused of capital offences and their notorious guilt, all these figure among the paltry subterfuges and excuses, that were wont to be urged against the transparent injustice of forbidding adequate legal aid to ignorant men women and children charged with the gravest crimes, and prosecuted if not persecuted with the utmost rigour of the law at the hand of its astutest practitioners. Again the length to which such trials would be protracted, and the indecorous wrangles likely to occur between the prisoner's counsel and the presiding judge, who was at other moments spoken of as himself counsel for the prisoner, were constantly being put forward as good and valid reasons against the reforms from time to time proposed, by those sufficiently in advance ' Sydney Smith's Essays, p. 643. THE LA WS DELA YS 75 of their age in humane feeling and foresight to busy themselves about such matters. Difficult indeed is it to comprehend how any little object of admitted desirability, such as the possible shortening of a trial, could be seriously advanced at any period by a man of the status of a law-officer of the Crown, at the expense if not in reckless disregard of every principle of abstract justice. Yet this was wont to be alleged as an excuse for example for denying the prisoner the right to be heard, at his own expense and in his own proper defence by counsel in every criminal proceeding, in order that forsooth the public time might be thereby economised. It is true nevertheless that these and other like abominations were carefully conserved for ages by the influence of lawyers, who instinctively hate every new thing whether good or bad almost indiscriminately. Whence it follows that we should regard as no matter for wonderment the fact that many patent abuses still flourish in full force, among which not the least is the subject of this study, namely the unnecessary delay prisoners still often encounter in being placed upon their trial, and the unfailing hardships consequent thereupon. As an example, Horsford the St. Neots' poisoner was committed for trial early in January, 1899 and yet not brought before the Assize Court until the follow- ing June, having therefore by that time already 76 PENAL SCIEACE undergone fully five months' imprisonment. Assum- ing that he had been found not guilty, no reparation would have been made him for this long compulsory residence in prison, entailing of course a certain stigma, as well as necessary interference with the business avocations of a farmer during so long a period. Except in the Metropolis, such delays are of common occurrence. Moreover as something like one in every five prisoners is acquitted, the amount of injustice worked and of human misery increased by the law's delays in serious criminal cases is by no means inconsiderable, but rather the exact contrary. The Edinhurgh Review and Mr. "Western, M.P. called attention to this scandal so long ago as the years 1822 and 1823, and yet it still exists in full force at the present day, some three-quarters of a century afterward. True it is that our criminal statistics for 1895^ attempt to make out that, whereas in 1854 865 persons were imprisoned for over twelve weeks before trial, in 1890 the number of the same class was only 477, and by reason of this proportionate dimi- nution claim that we are now in the way of amendment. Such a conclusion is however mislead- ing. The fact is that these figures refer to cases at Assizes and at Quarter Sessions, as well as probably also to those tried at the Central Criminal Court, both of which latter sit very much more frequently 'Seep. 34. THE LAW'S DELAYS 77 than Assize Courts, the former twelve times and the latter regularly four times every year, while the intervals between the sittings of Assize Courts leave much not only to be piously desired, but plenty also needing to be remedied forthwith. Furthermore in the year 1854 29,359 persons were tried by the Courts above referred to, while in 1890 the corresponding number was only 11,974. Bad as these results are, they are nothing like as glaring as those which may be extracted by anybody wlio will take the necessary trouble from the manifold tables in the same somewhat ill-digested volume. To take an example from a cursory analysis of the supple- mentary table on page 175,^ it will be found that at the Central Criminal Court, out of a total of 1,081 prisoners placed upoa their trial at that court in 1895, only 7 had been kept in prison much above twelve weeks before trial, and none above sixteen weeks. While at the Assizes throughout England and Wales, out of apparently only 2,851 accused persons 153 had already been in prison for over twelve, and 96 for over sixteen weeks previously to their trial and subsequent conviction, while 41 prisoners who had been wrongfully incarcerated for over twelve weeks, and 19 who had been in jail for more than sixteen weeks were actually acquitted, ' Criminal Statistics, 1895. 78 PENAL SCIENCE on their cases being presented to the Court for final adjudication. The principles upon which tables in English criminal statistics are compiled, seem so unscientific and the figures themselves so mechanically put together and lacking in arrangement, that it is possible that some of these details may be inaccurate. More- over there does not appear to be any means of check- ing them. But the following facts nevertheless stand out transparently clear, namely, that 170 prisoners were convicted at the Assizes held during the year 1895, who had been already in prison for between twelve and sixteen weeks, and 96 more who had been confined in jail for over sixteen weeks before their trial at such Assizes. In addition to these, 41 more poor creatures who had been in prison for between twelve and sixteen weeks, and 19 who had been detained for more than sixteen weeks, were actually acquitted after this monstrous delay, without receiv- ing any compensation for such unnecessary and indeed unreasonable hardship. Or in other words about 326 persons, a fifth of whom were ultimately acquitted, seem to have been needlessly kept in close confinement before trial, each for the best part of four months. This course must needs meet with the strongest condemnation when it is made plain enough, at the hands of every right-feeling human being, who has not become fossilized into the contemporary criminal THE LA TV'S DELA YS 79 lawyer. Can such a state of affairs be permitted longer to exist in the highly civilized England of to-day? "Will public opinion acquiesce tamely in such an immoral condition of things, simply because they chiefly concern a section of the proletariat that forms a quantity nSgligeable at the polls ? Only seventy years ago in many prisons untried prisoners were made to work upon the newly invented treadmill until trial, or as an alternative got hardly any food at all, while if they did work and so earned money for the county they were fed even then inade- quately. No one nowadays probably would be found stupid enough to attempt to justify such monstrous injustice, as to starve a presumably innocent prisoner if he or she did not willingly elect to do degrading work, for in those bad old days women too were often put upon the treadmill. Yet it took all the forceful language of a Sydney Smith, backed up by the influence of a review like the Edinburgh under its then splendid direction, to bring to pass a change in this barbarous treatment of untried prisoners. Crown and other lawyers upheld it, while the Chairman of Quarter Sessions for the North Eiding of Yorkshire wrote a vigorous pamphlet in its support. Such a system as we have just referred to is how- ever merely an aggravation and extension of that still unhappily acquiesced in by our prison authority at the present day. He who has no money or friends '8o PENAL SCIENCE who will go surety for him by bail, must still remain whether subsequently found guilty or not in jail on insufficient food, and that too not impossibly for a period of four months or even more. All this time his family loses the services of the bread-winner, while his business of whatever kind it may be is of necessity going to rack and ruin. Apologists who are always optimists and who rise again from their ashes, after having been apparently roasted to death for their wickednesses, with a vitality truly alarming, state boldly that the prisoner is better off in jail than when a free man. Even if this contention had a soli- tary peg of truth upon which to hang a cruel practice, no fair-minded person needs to be reminded that two blacks do not make one white. And in fact if a poor creature is unfortunately more wretched outside than inside jail, for that very reason society's duty is to make it less hard for such an one when at liberty, that so he may under no circumstances regard it as a relief to be interned compulsorily, than to hug itself on the good it is doing itself (not him) by locking him up. The G-overnment official is an optimist, acting automatically as a drag upon a public opinion which does occasionally get galvanised somehow into action. Such an one is of opinion and of loud-voiced opinion for the most part too, that crime is decreasing (Crim. Stat. 1895). Or that the provisions in the Prisons Act, 1898, which in any way lighten the burden daily THE LA W'S DELA YS borne by our prisoners, are a mistake.^ But notwith- standing all this interested advocacy of the tempus actum, we have still the natural common sense of our countrymen to appeal to, to say nothing of the counter- blasts of critics like Mr. Morrison and Miss Orme in the Fortnightly Review about the same date.^ The question then shortly put, is whether or not our prisoners are any longer to be kept untried for four or five months, just because it has not been hitherto convenient for a judge of Assize to hold his court oftener than heretofore has been the habit out of London. What indeed has convenience or ex- pense in the case of a corporate body like sodety to do with this question, as compared with the liberty of the individual subject, for the defence of which so much blood has been shed in the past ? Is a large number of prisoners, say 326 of whom about a quarter or a fifth at least will be ultimately acquitted, to be kept in jail each year in those parts of England and Wales which are remote from the Metropolitan dis- trict, simply to save- a small expense ? The less pro- bable is it that anyone outside the official ring will be found to advocate this, since mediocre intelligence can suggest at once a way of escape from the difficulty. Why is a judge necessary to try a prisoner nowadays, 1 Criminal Statistics passim, c.f,. Sir E. Du Oane, Nineteenth Century, May, 1S98. 2 May, 1898, 82 PENAL SCIENCE except perhaps in murder cases ? A Commissioner in Lunacy not always with the assistance of a jury, is em- powered to decide at any moment upon the sanity or insanity of a possible lunatic. Surely similar machin- ery would amply sufifice to arrive at a conclusion as to whether or not a man has committed any ordinary crime ? There can hardly be a question as to which of these two plans would work the less injustice. And if precedent is here of any value, we have it in the custom now well established of sending Commissioners of Assize to deliver jails, when from time to time judges are not available for the purpose. There seems therefore nothing to prevent this simple manner of delivering as frequently as need be our jails from coming into operation at once. It has the merits of simplicity and efficacy and not the demerit of unusual novelty, which might perhaps shock the cautious practitioner at its proposal, while our real murder cases from the provinces about twenty a year could be easily and conveniently committed for trial to the Central Criminal Court. Moreover even as regards the balance of advantage (quite apart from the question of abstract right and wrong) that'would be conferred upon society itself, as distinct from the accused person manifestly to be benefited by a speedyj trial, only the reactionary can have any real doubts. Promptness ^alike da unts the criminal and all such as can by fear l^be kept from crime, far more than does delayed THE LA WS DELA YS 83 severity. Bis dat qui cito dat has here its obvious application, as has likewise the injunction in the vernacular, Strike when the iron is hot. There is nothing to excite tlie sympathy of any important section of the public for a prisoner caught and tried red-handed, while it is the sympathy of his fellow man which is the mainstay of the criminal as well as the chief upholder of crime.^ But if a man has been in jail for from four to five months and is ac- quitted after all, so far from being an object of obloquy and scorn he excites coinpassion on all sides. The law's delay here necessarily arouses disrespect for the law. Nothing then but the misoneism of the legal mind upholds and continues our methods of trial at Assizes. Things have been improved in this regard throughout France, and even in and around our own Metropolis. Upon the question of reparation ^ to acquitted prisoners who have been long detained in custody, Ferri has much to say, but it is all in favour of this principle. If compensation is given habitually to a citizen when any of his land is compulsorily taken from him for a public work, even though he will himself reap benefit therefrom, how much more ought the acquitted prisoner to receive recompense for the ^Cf. The muoli severer treatment of the Roman Manifest thief than of the Non-Manifest. Maine. Ancient Law, Ed. xii. p. 378. 2 See p. 164, inf. 84 PENAL SCIENCE harm that has been done him by his wrongful im- prisonment for the supposed benefit of society? The litigant who is worsted in a civil suit as a rule gets his costs. The slanderer has to pay damages. The unsuccessful appellant answers for the failure of his appeal. Why then should not the Crown when unsuccessful in a criminal prosecution accept the consequences of such a situation, and make adequate amends to the acquitted prisoner? Is it the still pervading force of the old idea that the king can do no wrong, which has prevented this obvious anomaly from having been long ago swept away ? Speedy trial with reparation for all acquitted persons who have been imprisoned is not only lawful and right but they go hand in hand, and will of a surety save many a sinner from the error of his way, by providing him with an open door to repentance if guilty in fact, and not as now with a shut door to employment upon his release from a prison into which he ought never to have been thrust, even though found not guilty by the verdict of a jury of his fellow-countrymen, CHAPTEE V IMPRISONMENT Why " must not we put the strong law upon " oriminals. — Hamlet, Aotiv., Sc. iii. "Whether or not the word Mesopotamia is soothing in every connection, Criminology not only in the abstract but also in most of its concrete instances indubitably acts as the proverbial fly in the literary ointment. Perhaps it is for this reason that English writers mostly eschew a subject upon which our con- tinental cousins are ever hard at work. Still Mr. Crackanthorpe's article/ on the Standardisation of Punishment, Mr. Justice Kennedy's lecture given at length in a late Law magazine,^ and more recently again the observations of the late Chief Justice and Mr. Justice Mathew at the March meeting of the Catholic Prisoners' Aid Society last year, seem to have brought the true relation of punishment to crime for the moment safely within the horizon of the ordiij- arly observant man in the street. ^Nineteenth Century, January, 1900. ^Nov., 1899. 86 PENAL SCIENCE Not that the precepts of Bentham and Beccaria nor even those of the Eomilly Society and Elmira are things that have been wholly ignored among us. Yet penal science is too often held to be co-ordinate with punishment, owing to the line taken by most of our great legal writers in the past. In our own day it was Mr. Justice Stephen's magnum oipui- on the criminal law that brought this unsavoury subject more prominently before the reading portion of the community than any modern book, and the same is still far from being out of date. Fulsomely spoken of by some reviewers as the most arduous and extensive task that had ever been undertaken by any English lawyer since the production of Blackstone's com- mentaries, it certainly has not in the past been allowed to hide its light under a bushel. "Without pausing to point out the inaccuracy of this over- statement of the case which would interest the lawyer only, it may safely be affirmed that, if the book in question has in fact guided in the direction of this study to any appreciable extent those whose hearts' desire it is to benefit a most unfortunate class in this country, even if not altogether for its author a 7nonumentum aere perennius, it has yet done no mean amount of good. A preliminary criticism here presents itself, that the treatment which the theory of criminal responsi- ' p. 22, note sup. IMPRISONMENT 87 bility or liability gets at the hands of this school of criminal lawyers, is very different to that which the same meets with almost in the form of a dogma from the medical jurisprudent.^ The main idea of the former being how all fish may be dragged into the net of the prison house, that of the latter is to excuse wherever practicable all but the born offender. To punishment not whoUy unconnected with the idea of revenge, the late Mr. Justice Stephen looks as a panacea for raising the moral tone of the community, and he is not contented that the minimum amount which will deter others from like offences should be that to be meted out to the unhappy criminal. It is not intended in this chapter to do much more than offer a few observations upon the comparative wisdom or unwisdom of these two views. If and as long as the prisoner is to be regarded in the same light as a subject in the dissecting-room, namely as a thing which exists only that others may learn from it, possibly the latter contention, that of the learned judge, may be the philosophical one, although in that case most good men would be unwilling to be magistrates or judges for stronger reasons than have ever yet been advanced by anyone for not being willing to be made a bishop. Herein probably consists the fallacy that underlies so much of our present criminal practice. A prisoner is convicted of some crime which 'See p. 41, sup. Also VidoU, Cows de Droit Crim. p. 162. PENAL SCIENCE offends the sense of propriety of the court. He is sentenced to a punishment proportionate to the view that the learned presiding judge takes of his crime in the abstract, and has to undergo in addition a lecture illustrating the said judge's opinion of that class of offence in general, and of this instance of it in particu- lar. If on the other hand the conditions under which the man committed it were in all cases more carefully weighed, and the effect the punishment awarded was likely to have upon him individually more thoroughly considered, and not (as having nothing whatever to do with his culpability) the necessity or the opposite for an example to deter like crime in the place where the offender came from, judges and magistrates would have perhaps more trouble, but their sentences would not so generally merit criticism at the hands of the intelligent public as they do at present. In hospitals the treatment of patients is conducted on different lines, and it is submitted that there should be more similarity between the handling of prisoners during punishment and that of patients in hospital, than at present exists. To take an example. The leg of a patient is not cut off unless it is ab- solutely necessary for the man that this particular major operation should take place, and speaking generally it is a hard thing that a criminal whether he deserves it or not should receive a severe sentence, mainly because crimes similaj- to those for which he IMPRISONMENT 89 is to suffer have lately been rife in his neighbourhood. For this however a plausible excuse, if no true reason, seems from time to time to offer itself, yet is it by no means apparent why the heavy sentences still in vogue in so many other cases are judicious, or even capable of being defended on any ground except custom. One great difficulty which is not enough regarded is the different effect that similar punish- ment has on different prisoners, owing to temperament and other causes both physical and mental. Were it not for this it might be better that there should exist a fixed and regular scale of punishment for each offence, at all events whenever a previous conviction has been proved against the recalcitrant recidivist. Nothing can act so much as a deterrent as the know- ledge that a fixed penalty must promptly be paid when found out, and if there were superadded the moral certainty of being found out, the ranks of our criminals would not be recruited as fast as they are. Moreover it cannot be denied that one of the best ways to diminish crime is to spread education. For the educated criminal sees even now that the odds are too greatly against him to make his business a profitable one, and probably nothing but force -majeure or the difficulty of getting out would make him con- tinue in the ranks of crime. But education is of necessity a gradual remedy, and for at least another generation the adoption along with it of other means 90 PENAL SCIENCE quicker in operation is imperative. Again the blue- ribbon movement has done a great deal to diminish incitement to crimes of violence such as that which the influence of liquor affords, and when brewers distillers and publicans are looked more sharply after and punished for selling bad liquor, by effectively taking away their opportunities for so doing for ever thereafter, still more good work will have been accom- plished in this direction. But besides these forms of prevention the usefulness of which cannot be over- rated, another safeguard exists in the way criminals should be tried and treated both before and after con- viction, and it is with this also that the present chapter more particularly proposes to deal. And first with reference to the mode of trial. This as regards the judge magistrate or magistrates consti- tuting the court of first instance in this country, is believed to be upon the whole fairly satis- factory. The usual action of the police, however, who in most cases are the real prosecutors, is not. Nor is our detective system by any means good, while the criminal investigation section has as yet done but little in the way of investigating anything worthy of notice. A young department naturally lays itself out for causes cdebres with a view to making its vigil- ance widely known and appreciated, and therefore it is no matter for wonder that this agency has not yet become a real terror but only a scarecrow to evil-doers IMPRISONMENT 91 generally. What the police would do well to more particularly busy themselves with is, the investigation of the circumstances under which a prisoner has been living before the commission of the offence with which he is charged. In fact they should always be able to tell the judge the history of his life for some time past. As what they chiefly direct their attention to is the obtaining his conviction, the police constable in charge of the case with this view often interpellates an unconvicted man as rigorously with us as on the continent. In getting up the life history of the ac- cused the police should be strenuously aided by the clerk to the magistrate, whose chief duty at present seems to be merely the eliciting from witnesses as many facts as he thinks militate sufliciently against the prisoner to get a jury probably to find him guilty, and then having the same copied on brief paper and choosing the barrister who shall prosecute. There is in fact very little now effected by the magistrate's clerk that could not be done by a capable magistrate himself even if not a lawyer in half the time, suppos- ing he were assisted by an ordinary shorthand clerk. Time and money would thus be saved, and the of&cial now known as the magistrate's clerk might be meta- morphosed into a person who kept the police up to their work, and who was compelled to be in reality an efi&cient official solicitor to the prosecution whenever there was no other forthcoming. 92 PENAL SCIENCE When the case comes before the court where the ultimate trial takes place, instead of the brief for the prosecution being given to any nominee of the magis- trate's clerk that he may please to choose, if it went into the hands of some efficient permanent official, as is now practically the case in Treasury prosecutions, and he were paid by salary, expense would be thus saved and the pure and simple work of the prosecu- tion thoroughly done which is often not the case at present. If the prisoner were always defended by counsel the facts of each case would be better brought to light, and in this event technical objections would of course be discouraged, and at all events a sub- stantial effort made by the court to discover to what extent if any the prisoner is really culpable. In such case if sufficient reason were not forthcoming to establish this, the reason for its absence could readily be ascertained. The only issue now attempted to be tried is whether the prisoner is guilty upon the evidence then actually presented against him or not, and not the additional one whether, if the case had been more thoroughly got up, further evidence either for or against him might not have been procured. To this end reasonable facilities should be afforded to each prisoner for compelling the attendance of witnesses in his favour at the country's expense, upon the understanding that if he abuses this privilege additional punishment by way of reparation will be IMPRISONMENT 93 the consequence. "When the case has been carefully sifted and the prisoner convicted, in each instance evidence on oath of his previous mode of life might usefully be offered wherever possible, and no sentence ought to be passed by the court before it has made itself as far as may be acquainted with his antecedents. As to these there can be no great harm in the prisoner being interrogated when in jail, though no evidence extracted from him or furnished by him as to the commission of the actual offence with which he is charged should perhaps be receivable in evidence against him. The existing objection to confession under pressure might well be still further extended, inasmuch as almost any ad- mission made by a prisoner to a constable or official under any circumstances is in reality made under duress. The court having learnt at all events some- thing of the prisoner's previous history would, in the case of all first offences, do well to punish as lightly as possible, no regard being had to the state of crime in the neighbourhood. That most salutary provision of Sir W. Harcourt in the case of juvenile offenders is capable of much extension, and proper but not superfluous or meddlesome police supervision might well take the place of much of the imprisonment at pre- sent meted out in the course of all really unfortunate prisoners. Most judges sentence prisoners accord- ing to precedent, and yet few of them can know what 94 PENAL SCIENCE the effect of a fixed term of inprisonment or of penal servitude is likely to be upon any given prisoner. It is of course almost impossible, especially having regard to the circumstances under which prisoners' offences are committed, that fixed punishments should be awarded. And therefore the physical condition and circumstances of each prisoner may properly be taken into consideration in each individual case. And here it may be remarked that, while in hospitals the most eminent members of the medical profession freely give their opinion upon the condition of patients and even sometimes disagree, in prisons a very ordinary general practitioner for the most part is the recognised medical officer, and yet his opinion is accepted at once as conclusive with reference to the physical and mental state of each person under his care. It may be re- marked in passing that there was no alienist appointed under the last Prisons Act, nor is there one even at Parkhurst the Defectives' Prison. There should it is contended be a consulting physician appointed to every prison, and the state of mind or body of no prisoner when in issue should be adjudicated upon without taking his opinion. It will of course be said that this would entail great expense, but if prisons were made more self-supporting than they are, and the parrot cry against the competition of prison labour wholly dis- regarded, this difficulty would readily be got over. Take the case of a delicate or defective man or woman IMPRISONMENT 95 sentenced to hard labour. There can be little ques- tion but that such punishment ignorantly allotted may deleteriously affect the physique of such an one, especially if undergone upon the low scale of prison fare still prescribed, notwithstanding the vaunted liberality of the new regulations. Is it fair to a criminal that he should be taken in charge by the State for a term, and then turned out of prison in a condition physically less able to earn his own living, if disposed to try honestly to do so, than he was before ? It would appear that at whatever cost it is the bounden duty of the State not to allow the phy- sical condition of any one of its children to be damaged during his period of punishment, under any circumstances whatever. The subject of prison labour perhaps scarcely comes with strictness within the pur- view of the criminal law, but it may here be suggested broadly that, if prisoners were utilised in some way by the State, as for instance to mend roads under the guardianship of the soldiery, two different bodies would be then usefully employed, neither of which are sufficiently utilised with us as a general rule in time of peace. What can be more unsatisfactory evidence of sanity or insanity to present to a jury and invite them to find a prisoner guilty upon, than that of the prison doctor ? And yet such is all that is furnished by the country in ordinary prosecutions where a prisoner is undefended. 96 PENAL SCIENCE The true question is not whether the prisoner is sane or insane, but whether he is so defective in intelligence as to justify in his case any mitigation of the penalty, which would be appropriate iu the case of the ordin- ary reasonable man. This may be known to men like Nicolson Baker Pitcairn Brayn and Orange, but certainly not to the average prison doctor, who has but little mental science. Again a sickly looking boy is sentenced to eighteen month's imprisonment with hard labour, the heaviest sentence next to two years' imprisonment now in vogue, and upon the hesitating suggestion perhaps even of the prosecuting counsel that it should be without hard labour, the same prison doctor is put in the box, when he states it is his opinion that the poor wretch is able to undergo hard labour. Thereupon it is ordered straightway. One rule as to the length of sentence too often appears to exist in the mind of judges for each particular offence, just as one rule operating as inflexibly as the Pro- crustean bed obtains as to the amount of food for each prisoner, whatever his physical condition. The length of the sentence the amount of work to be done and the amount of food to be given in each case should be the result of the opinion of at least one good expert, and while a prisoner is in jail he should be in the custody of men of science and practical good sense and kindness of heart. The position of governor of a jail of prison surgeon or prison chaplain is not what IMPRISONMENT 97 it should be, and is too often given rather as a reward to the individual, than because he is peculiarly fitted for the post. Just as asylums are visited by regularly appointed independent visitors of high calibre, so each jail might well be visited frequently by men of similar status other than those belonging to the prison service, who should examine each prisoner apart from of&cials, and conscientiously try to improve the morale of the place. The power placed in the hands not of judges only but of chairmen and deputy chairmen of quarter ses- sions and recorders, as to the length of punishment to be inflicted upon prisoners tried before them appears too great, if their freedom from responsibility and frequent ignorance of the weapon placed in their hands is considered at the same time. How few judges know what the real incidents of a term of imprisonment or of penal servitude are, and how much fewer are those who can estimate with any precision its probable effect on the unhappy prisoner that they sometimes sentence so liberally. Every serious sentence should be liable to be overhauled by a court of criminal appeal, and a statement of the circumstances really proved in each case furnished by the court that tried it for their information. So would a feeling of deeper responsibility be engendered, and the good judgment of several able men check the impulsiveness or the peculiarities of the inferior 98 PENAL SCIENCE tribunal, too often in effect consisting of but one individual. It would obviously be bad taste to illustrate these remarks with cases, but a reference to the newspapers will readily afford sufficient in- stances for this purpose. Then again the length of the period of punishment is by no means the only method of reorganising a prisoner. Crimes of violence in young persons might sometimes be punished by the judicious use of the cat. Nothing else has been shown to act so well, as a deterrent in such like cases. If, instead of sending lads of eighteen or nineteen to five years' penal servi- tude for robbery with violence, they were sentenced to six months' imprisonment and to undergo twelve strokes of the cat every other month, and then to be under efficacious yet not meddlesome police super- vision for say two years, they would dislike it more than the longer punishment, and less damage would be done to them physically mentally and morally. How can it be seriously contended that a convict, after a long period of penal servitude during which he has been acting as a mere machine, is capable of finding for himself immediately on coming out a means of earning an honest livelihood ? He is in- capacitated by his punishment from so doing instead of having been more fitted for it, as he should have been through having been taken in hand by the State. The idea of prison labour competing and IMPRISONMENT 99 underselling that of the ordinary individual is not worthy of serious consideration. What must be looked to however is, that no middle man as in France is allowed to make profit by the work of the prisoner. The product of his industry should go direct into the market and fetch what price it will at public auction sold in reasonably sized lots, and there should be little difficulty in selling the work of gangs for road mending scavengering or agricultural purposes, in these days of scarcity of country labour. At all events this is done in some of the Southern States. Lastly when each prisoner comes out of prison a means of earniug an honest livelihood should be offered him, at wages somewhat less than he could command in an ordinary way. Some Government works might be constructed by a proportion of such persons, receiving each say two-thirds of the day's wage of the ordinary unskilled labourer. At present a man is turned out of prison without sufficient means of getting to his home and re-establishing himself there, and were it not for that best of all benevolent institutions the Prisoners' Aid Society, which is not sufficiently known and supported, many a prisoner would be obliged to return to prison from utter inability to start afresh. Eeclamation work is more effective than punishment, but that it may be effective it ought to be practical. To be practical it must be taken in hand by men who have it 100 PENAL SCIENCE earnestly at heart. So only can we give a good account to our own hearts and minds of the treat- ment of criminals. And let it not be supposed that these suggestions are chimerical. Not long ago it was the practice to sentence criminals to be hanged for stealing articles of the value of forty shillings and upwards. What should we think of such a judicial act now ? Before many years have passed we shall not take away life, at all events for crimes of sudden violence, which are not wilful as understood by ordinary persons. The ideas of men change with the age they live in, and it is seriously submitted to the consideration of those who have at heart the interests of the most friendless class in this land — the convicted criminal —vvhether some at least of the above suggestions are not worthy of attention, if not of immediate adoption. The Criminal Law must be made in some senses more elastic, in some more certain and unfailing in its effects, and reclamation and not punishment become the object of those permitted to administer it. Then will the farce of every judge of the High Court of Justice being allowed to try prisoners for serious crimes, whether he knows how to do so or not, quickly become a thing of the past, and the absurdity of many of them going on circuit with all the pomp and panoply of barbarous times, wasting the country's time in trying one or two of their fellow creatures. IMPRISONMENT often for small offences in remote neighbourhoods, cease to afford them relaxation and us amazement and regret. A county court judge might well be the president of every court of quarter sessions, which need not be holden at any particular fixed time but when actually wanted, and then the jurisdiction of these courts could be usefully extended, provided all cases of murder were tried in London or Manchester before a really great assize. These few suggestions are not as drastic as they may seem to be at first sight, and if tried might not improbably be found to be of benefit. But to the legal mind change is ever abhorrent, and therefore any improvement in our present system will not only be slow in coming, however much needed, but also be most difficult to bring about. It is only the loud voice of the public that will be heard, not that of the isolated reformer, reform he never so wisely. His function is merely to try to arouse properly public opinion. CHAPTEE VI PEISON EEFOEM The fact of the important Prison Act, 1898, being so lately passed is of itself sufficient, were anything wanted in especial, to focus public attention at this moment upon the fascinating subject of Prison Eeform. To teach our senators wisdom in this regard were no hard task, for few of them know except by hear- say anything about the existing condition of things affecting our prisoners. Nor is the urgency for Prison Eeform much lessened now that we have the new Act of Parliament. Reform when offered bit by bit Is but intended as a bridle is almost as true in this connection, as when it was offered as a criticism to Lord Chandos. Even officialdom is waking up to the imperious necessity for doing something. General Sir E. Du Cane having retired, Mr. Euggles-Brise his successor has been to America to see what is done there with criminals. He lately presented a report to the PRISON REFORM , 103 Home Secretary setting out his impressions upon what he saw there, which report however may fairly be set down as being extraordinarily common-place. Still it means that the present head of our Prison Department is alive to the fact that matters cannot go on as they are. The evolutionary principles which are at work everywhere else are now in play in penal matters even in England, where the new science of Criminology is just beginning to catch on, having long ago taken root sprung up and borne fruit a hundredfold in America France Italy and Germany, and indeed in almost all civilized countries among men of culture and humanity. The first idea in connection with prison treatment which suggests itself to the intelligent mind is, why there should be such a thing as a prison. It ia true that nowadays imprisonment is accepted as a panacea for the criminal classes. Possessed of virtues superior in quantity and quality to those claimed for their specific by the proprietors of Beeeham's Pills, which is saying a great deal, imprisonment either alone or as an alternative to a fine, is unhesitatingly prescribed for almost every offence of any magnitude by our penal laws at this period of the world's development. And very few have any more doubt of its efficacy as a corrective medicine, than had our forefathers less than a century ago of capital punishment for most trivial offences, such as thefts of articles above a shilling in I04 PENAL SCIENCE value. When the Persian Ambassador called on the Governor-General of India in 1805, he was attended by four executioners with their axes on their shoulders, and these great ofi&cers of state were also present when the Ambassador received the Governor at the Embassy.^ This was considered a bloodthirsty custom on the part of the poor Persian, yet in the same year there were according to English law 200 capital felonies ! About 120 years ago, and certainly when Howard was sheriff of Bedfordshire in 1773, jail fever and small-pox raged like plagues in most of our prisons, and prisoners even when found not guilty, or against whom no true bill was returned or no prosecutor appeared, were not released from jail, if unable to pay the fees of the clerk and other officers of assize and of the jailer.^ All this was at that time looked upon as so natural and wholesome, that from 1752 to 1832 every attempt at reform was negatived by the House of Lords, often at the instance of the bishops, though supported by men like Lord Mansfield and Lord Camden.^ In the Bishop of Ely's prison the keeper prevented escapes by chaining down his prisoners on their backs on the floor, and by fastening an iron collar with spikes about their ''■ MacHntosh's Life, p.i262. ^Pike's History of Crime, ii. p. 353. 'Mackintosh's Works, p. 716. Farrer's Crimes and Pwnishmenis, p. 52. PRISON REFORM 105 necks and a heavy iron bar over their legs. There was in it no free ward no infirmary and no straw, and debtors and felons were confined together. The Durham County Jail did not reflect much more credit upon the bishop who owned it, for in 1776 Howard found there a great hole 16^ feet by 12 with one little window, in which were six prisoners chained to the floor. These men had tried to escape but they were ill and in chains, and the straw in their dungeons was worn to dust.^ Shortly before viz. in 1734 torture was applied in Durant's^ case, while torture in Scotland was only abolished by 7 Anne, c. 21. Strange as it may seem to us nowadays, the great mass of persons were at these respective times just as satisfied with torture and capital punishment for small thefts, and the terrible prison rSgime of the period, as are the contemporary world at large with the imprisonment of to-day, and it is only the humanitarian now as heretofore who calls out to us to pause and to take heed to our ways. Therefore public opinion in England being exceed- ingly slow to discover abuses, must not be taken as any criterium of the propriety or non-propriety of existing penal usages. Imprisonment is a compara- tively new punishment. In the olden times corporal punishment capital or other or else a fine, was meted ^Pike, op. eU, p. 356. * 0/d Bailey Sessions Papers, 1734, p. 76. io6 PENAL SCIENCE out to the offender. As civilisation increased, it was soon seen that every wrong-doer must not be executed, and that even the fine of ;^133 for killing a bishop was not a sufficient or proper penalty for such a deed of blood. Imprisonment, which had before this been in common use for slaves and persons awaiting trial, then forced itself upon the notice of our law-givers, as a means of dealing with many of the existing prisoners and vagrants, and so in the sixteenth century, sundry houses of correction were established which were after 1865 no longer distinct from jails. So lately as 1853 the report of the Commission of Inquiry into the management of Birmingham Jail, which was managed by the "hard-hearted and fat-witted" aldermen of that borough, shows that infractions of prison discipline were punished there by placing upon the offender a strait jacket and a rigid collar, and strapping him in that condition to a wall. Only the other day a man of twenty-seven committed suicide in a prison near London, who had been some time before birched by order of the prison visitors for misbehaviour in prison.! Ytxi^ circumstance alone should bid us pause in our quiet acquiescence in the existing methods of prison treatment. The prison being the most easy way of dealing with criminals, it has continued to be ^ See Daily News, 11th December, 1897. Tragedy in Wormwood Scrubbs Prison. See p. 31, Sup. PRISON REFORM 107 of almost universal application, because public opinion in this country cannot be roused to see its true character its cruelties and its uselessness. It is as absurd as the old system of shutting a naughty child up alone for a day, as a means of correction. "Whether a prisoner is allowed to associate with his fellows or is kept in cellular confinement, the evil is equally great. In the former case the younger prisoner is contaminated by association with worse characters than himself. In the latter obstinacy or feebleness and in both cases general unfitness for earning an honest livelihood on release from prison, are too often brought about. It must not be for- gotten that it is only of late years that ordinary imprisonment has been in universal use with us. Seventy years ago capital punishment and transporta- tion, which was a very different thing to imprison- ment, accounted for a great number of our evil doers. Mr. Sergeant Ballantine, who knew as much of criminal nature as any man of his time, says in his Experiences of a Barrister's Life,^ that transportation is the most preventive punishment, and that he looks upon convict prisons and the systems pursued in them with great misgiving. " The inmates (he says) appear to me to have a sodden appearance, and there is a painful similarity in their faces to those whom a visitor will see grouped in lunatic asylums." Prison madness ^ P. 239, io8 PENAL SCIENCE properly so called is a recognised malady as is shown by Lombroso,^ and diarrhoea so general that it may be regarded in large prisons which are far the worst, as almost a necessary consequence of English prison diet. If then imprisonment is not a deterrent, if it is bad for the body as well as for the soul of the prisoner, if it manufactures criminals rather than moralises them, as practised in England and many other countries at the present day, surely it is time to call attention to its shortcomings, and to try to bring public opinion to bear on so important a question affecting annually as it does so large a number of victims. The case of Jane Cakebread,^ who was continually being brought before the London police magistrates for drunkenness and sentenced to short periods of detention, is illus- trative of the inefficacy of this form of punishment in the case of the vagabond. Nearly three hundred times was that poor woman committed to gaol, punished for a few weeks, and then turned out into the world in which she had probably not one friend. What more absurd method of dealing with a dipso- maniac could a society, composed entirely of idiots, have devised ? The short periods of prison just set her up sufficiently, to indulge again in the vicious habits in which release from all control afforded her every opportunity for indulging. ' Psyehiatrie, chap. viii. ' Now at last interned at Colney Hatch Asylum. PRISON REFORM 109 Imprisonment if to be of any use as a reforming agent, must be long in duration. The individual to be reformed must be not a hardened sinner to begin with, but a young person of the kind taken at Elmira. The treatment of such an one should be altogether different to that in force with us at the present time. We feed our prisoners so badly that on coming out they are often unable to earn a living honestly, even if disposed to try. In our prison regime we expect more of a criminal, the balance of whose mind is (ex hypothesi) unusually unstable or he would not be a prisoner, than we should expect of an ordinary man of his class. More obedience to authority, more attention to work, more submission to restraint. From our prisoners we expect perfect acquiescence in any injustice that may be inflicted upon them, by way of petty spile by warders. These latter are too often inferior persons, unsuccessful in other callings, who have taken to the prison service as a pis aller. Such material, instead of being the most fitted to deal with an irritable and morbid class of beings like criminals, is for the most part unfit to make first class non-commissioned officers for ordinary soldiers not requiring detention or any peculiar care. It is not to be wondered at then that friction is constantly at work in houses of correction, and that reports to the governor against prisoners are so numerous. A perusal of books like Five Years' Penal Servitude by tio PENAL SCIENCE one who has undergone it, or Mr. Davilt's Leaves from a Prison Diary, shows almost in every chapter the inherent faults in the English prison system, while M. Emile Gautier's brochure on Le, Monde des Prisons is an authority by an ex-prisoner upon the futility of the restraints as to silence and inter- communication, and of many other regulations usual in such establishments. This accomplished writer shows forcibly that le ion detenu, the well-conducted prisoner whom the authorities admire, is really only a more shifty and hypocritical rascal than his fellows, and that on coming out of prison he will certainly be unable to earn his own livelihood. If other authorities were wanted in support of the position that prisons are harmful in their action rather than beneficial, we have only to read books like that of Dr. Laurent, the medical officer at the Central Infirmary of the Paris prisons, upon Degenerates in Prisons, or M. Guillot's Les Prisons de Paris. Such books show the necessarily vicious action of the prison methods which obtain in the England and France of to-day. If we turn to a book like Winters' Elmira, and especially to the reports themselves of Mr. Brock- way's excellent penitentiary system, we shall see what a prison may be made, and what it has been made by a humane and intelligent American Prison Director. Krohne the great German Prison Chief has written PRISON REFORM an excellent book which shows how a prison should be managed. It is practically based upon the prin- ciple which was enunciated at the Stockholm Prisons Congress by the head of the Danish Prison Depart- ment. That official then said, " Give me the best possible regulations and a bad director and you will have no success, but give me a good director and even with mediocre regulations I will answer for it that everything will go on marvellously well."^ Good governors of prisons are to be found rarely in England, nor often on the Continent. That is the true secret why prisons are the terrible failures that they are. When to this is added the fact that prison doctors are as a rule (except in the great prisons of France and Italy) inferior general practitioners and not men of the highest calibre, it is not to be wondered at that the physical condition of the criminal classes is so unsatisfactory. Notwithstanding the criticisms of the Elmira system, which ■ may be somewhat exaggerated in the comforts it allows its inmates, the authorities have there as is usual in American institu- tions hit upon the truth. Carping critics, such as Mr. Browne in the Fortnightly Review for August 1895, laugh at Elmira and its treatment. This is merely what the alderman afterwards known as "The Turkey Carpet Alderman," immortalised (if pilloried) by Sydney Smith in the Edinburgh Review LehrbOch der Oe/angnis-Mnde, p. 634. PENAL SCIENCE did at the beginning of this century, when Howard was crying in the wilderness to a generation that would not at first hearken to his humane counsels. That alderman objected to prison reform because he said it would amount to giving to every cell a Turkey carpet ! Pretty much the same is the view of Mr. Browne, but not of Lombroso, concerning Elmira. The latter great philosopher says that no one can be a warmer partisan than he of the reforms there effected.^ But it is only fair to state that the Union Inter- national de Droit Ptnal, is still considering whether prisons for recidivists may not usefully be made more uncomfortable than they are at the present time, by the constant use of the plank bed and bread and water every alternate three days, together with hard labour at pumps. It is pretty obvious that if a man is to work well he should be fed well and sleep well, and therefore the absurdity of this suggestion needs no demonstration. It is true that it is not proposed for women, children, or men over sixty-five, but it is nearly as unfitted for those in the prime of life. In conclusion it merely remains to insist that our system whether in convict prisons or local prisons is bad, and that the Prison Act 1898 does not go any- thing like far enough in the direction of remedying ^ Les Applioationa de I'Anthropologie Criminelle, p. 54. See too Horsley's Jottings from Jail, p. 171. PRISON REFORM 113 existing evils. That the Eeformatory Parole and Probation systems in force in the United States are better in every way. That our prison ofi&cials are mostly of an inferior class and not of the highest, as is necessary if our prisons are to be a success like Elmira. For the rest, from imprisonment of any kind too much is expected. As a reformatory agent except for the young it is unfitted, in as much as its chief use is to keep incorrigibles from doing evil, for which purpose it must be in effect perpetual, a view for which the time is perhaps not yet quite ripe.^ ^ This view was expressed by the writer in the Sumaniterian and elsewhere as long ago as the year 1898. CHAPTEE VII A MORAL hospital' FOE IMMORAL CASES Just as " he jests at scars who never felt a wound," so many jibe at Elmira Eeformatory and other places conducted on similar lines, who have no practical knowledge of prison discipline, and who arrive at their amateur solution of many of the problems of penal science in academic fashion, with minds not in- frequently obscured by bias. It is not the man who makes the shoe but the unfortunate wearer whose foot gets wrung if the article fails to fit, just as the prisoner suffers and not the legislator judge or prison governor, when prison treatment does harm rather than good. The thesis here propounded is, that upon the whole the Americans were on the right tack under the guid- ' The expression " A Moral Hospital " is attributed to Prof. Collin, who instituted the " Practical Morality Class " at Elmira. A MORAL HOSPITAL FOR IMMORAL CASES 115 ance of Mr. Brockway at Elmira, while we in our adoption of Sir F. Ducane's evil methods are in the wrong. "Whichever one of the manifold views regarding the right to punish we may think fit to adopt, we shall not find in this a royal road to guide our steps in dealing with prisoners. The standardisation quality quantity place duration and form of punish- ment, each in turn present crucial difficulties which crop up in the case of every one found guilty in, and whose future has consequently to he forthwith dealt with by, an English Court of Justice. Nor is the question of what to do with our so-called criminals, or in other words refuse bye-products of heredity and environment at the begianiug of the twentieth century, simplified by adopting or not adopting the view that all human beings have two typical moral instincts, benevolence and a sense of justice, as Garo- falo asserts and others with greater reason deny. Such instincts if they ever exist are not likely to be easily galvanised into action in the case of individuals that Ducane ^ describes, as beiug to a large extent " of diseased and impaired constitutions victims of dirt intemperance and irregularity, upon whom the sins of their fathers in these respects are visited to the third and fourth generations." And again as to a ^Punishment and Prevention 0/ Crime, pp. 96, 171. ii6 PENAL SCIENCE great extent " persons who are absolutely unable, or who find it extremely difficult, through mental or physical incapacity, to earn their livelihood even under favourable circumstances." These statements coming from a late prison official, whose sympathies would to judge from his writings seem certainly not to be in favour of excusing offenders for their crimes, are probably more trustworthy than criminal statis- tics, the materials for which from their inherent complexity are too often imperfect and therefore useless. For example Virgilio finds 195 out of 266 (Italian) criminals affected with hereditary disease, Koch, 46 per cent. Marro, 77, while Dr. Wey says that at Elmira nearly 14 per cent, of the floating popula- tion are of insane or epileptic heredity, and about 52 per cent, coming from a positively bad home. Such being the material of which the criminal class is composed, does it not appear at the first blush that it is more fitted for the hospital than for the prison ? Obviously in their case seclusion- of some sort is very often imperatively necessary for the protection of society. But if we effect this securely in a hospital, such treatment as regards the safety of others may readily be made as efficient as is that of the dangerous lunatic in an asylum. One great reason that is often overlooked why the Moral Hospital theory is worthy of respectful consideration, is because of the opportunities for instruction that A MORAL HOSPITAL FOR IMMORAL CASES 117 would be thus afforded to the student of penal science.^ Just as the ordinary hospital furnishes instruction to medical students and the lunatic asylum more particu- larly to alienists, so the Moral Hospital could and would teach those, who will have to do with the ad- ministration of the criminal law, much of what their forerunners are most lamentably ignorant of at present, viz. the effect of the same sentence on differ- ent individual prisoners. The identical cause pro- duces different effects in different instances, owing to their low average " retentiveuess for good or evil," especially when in their case as Dr. Nioolson says " an ordinary emotion, in the absence of the moderat- ing influence which a deliberate volition should exert, leads to the commission of acts as unreasonable and as destructive as those committed at the instiga- tion of a violent emotional impulse, whose course an ordinary will is found incapable of resisting or con- trolling." If these are not the kind of subjects for moralising treatment, it would be indeed difficult to say who are. In the view here taken Elmira what- ever its defects, is likely to do more good to degene- rates such as those that are yet quite young, than any English prison however modern. ''■}A3MAs\ey Journal of Mental Science, Julj, 1888)says, "Thetimo has come when we ought to use our prisons as we do our hospitals, not for the ease and treatment of the inmates, but for the advancement of knowledge, and the improvement of man's estate." Query ; Could this not be better effected in a Moral Hospital than in b, prison J ii8 PENAL SCIENCE But with reference to Elmira several points must be fixedly kept in remembrance. First the in- dividuals sent there are all young, in fact the pick of the convicted in New York State. Here is material upon which it is no waste of time to try experimental reforms. Further the chances of moralisation there are increased by the use of the indeterminate sentence, which practically leaves it within fairly wide limits in the hands of the capable manager to choose how long the prisoner is to be detained, and the exact date at which lie shall be liberated on parole. The mode of treatment at Elmira is to keep each inmate always either mentally or physically occupied, and never to leave him time to plan new schemes of crime. Among the actual means adopted are proper hygieaic arrangements, including Turkish baths massage and special dietary. The learning of a trade and careful moral and intellectual training, ' continually alter- nating with active physical exercise, complete the curriculum. When in 1888 prison labour in the States received a legislative check, military drill was instituted to take as far as possible its place, and the inmates were then formed into a volunteer regiment, the manoeuvres of which in its present condition are excellent. Although at first some slight disciplinary difficulties seem to have arisen, they have long ago been got over owing to the tact and judgment dis- played by the management, and the general result A MORAL HOSPITAL FOR IMMORAL CASES 119 of the course thus adopted appears to have been in every sense satisfactory. For since the institution of military drill the health and bearing of the young men of Elmira has manifestly improved, and as it is believed also their moral and mental tone. Swimming baths likewise have now been provided, and cleanli- ness in the highest degree is everywhere insisted upon. Nor must it be supposed because there is a "Practical Morality Class," and the prisoners are encouraged to run a prison journal, that matters are there conducted in a manner to which serious objec- tion on the ground of the absence of penal restraint can intelligently be taken. The food is mainly milk and bread and butter, and is limited in quantity though partaken of at a common table. Whether now that it is unfortunately no longer under Mr. Brockway's management it will continue to be a success, time alone will show. The obvious criticisms to which the system is pro- perly open are, firstly the necessity for the inmate's release whatever his shortcomings, at the expiration of the maximum term for which he was originally interned. Secondly the expensive nature of the treat- ment, and thirdly the opportunities necessarily afforded there for communication between prisoners, which may lead to a very bad inmate doing an infinity of harm to his fellows. Fourthly and lastly the great difficulty of finding competent men to carry out so PENAL SCIENCE difficult and trying a method of education reformation and penal detention combined, as the complex scheme in operation at Elmira of necessity requ'res. If the hopeful estimate of Mr. Brockway is anything like correct, that but 15 per cent, of his pupils return to their evil ways, the practical usefulness of his plan of reformation is abundantly demonstrated. Anyway the man of New York State is presumably not the sort of person likely to be imposed upon for any length of time by optimistic fanaticism, and when we see Ohio following in its wake and apparently with similarly satisfactory results, the system of Elmira must at least be held worthy of our respectful study. In Germany Holland and Belgium it has many warm supporters, among whom are ranged Van Harael Van Liszt and Prins of Brussels. From their admiration for it the faint praise of Mr. Justice Kennedy, who seems not to have had many opportunities for form- ing a complete judgment in the matter, by no means seriously detracts. As showing the practical way in which the per- petual visits of well-meaning but injudicious persons are discouraged, we find no chaplain at Elmira. Ministers of all sorts are admitted, but more for the satisfaction of the inmates than of these religious enthusiasts themselves. For in houses of detention the latter often do much harm quite unintentionally. With us one is said to have so roused a prisoner by A MORAL HOSPITAL FOR IMMORAL CASES 121 repeatedly dwelling upon hell-fire, that the latter rushed at him and cried out, "I have hell enough here already without you bringing me any more of it." At Elmira the visits of kindly and judicious out- siders are encouraged, in the belief that solitude is " productive of no intellectual activity " as Prins puts it, or indeed of any real searching of conscience, while it must promote vacuous habits and self-indulgence often of the basest sort. Without association no social instincts are fostered or developed, and the necessary struggle for life on coming out into the world again is quite overlooked and forgotten. Bad as is our English system notwithstanding all the praise bestowed upon our latest Prison Act (of 1898), we have one regulation which is to some slight extent reminiscent of Elmira, in that our women convicts are sent to a Home to pass the last nine months of theirjsentence, whenever owing to previous good conduct such a course is considered desirable. Likewise in the case of women convicts, the maximum sentence may be reduced by one third, a term which of course offers a sufficient premium, in the case of any one with self-control in a properly conducted prison, to induce exemplary conduct. But the initial fault of the English method is, that it is merely penal except in the case of "juvenile offenders." All alike are subjected to one common style of jail treatment, and often in the country children likewise. This 132 PENAL SCIENCE Procrustean bed system, applied as it often is by the amateur agency of ex-army officers and other unskilled agents, cannot give good results, as is shown by the number of our recidivists. A delusive plea for the prison service is raised by Sir F. Ducane and the English authorities when they say in effect, that the triumph of penal science is to have none but previously convicted prisoners to deal with, as then crime must have been satisfactorily shown to the criminal mind to be so unprofitable, that it has failed to enlist new recruits. The fallacy here is twofold. The first false assumption is that all who join the ranks of crime are caught and incarcerated in due course, which is far from being the case, as probably not one-half of our crime is ever detected or punished at all,^ and the second petitio principii is, that a state of things can be satisfactory in which the individual who gets into prison for the first time (as all must have done) " returns like a dog to its vomit again." The fact is to continue the quotation that the human sow that was washed, which returns to wallow in the mire, was often not properly or thoroughly washed in the first instance. The system is a bad one to begin with, and inefficiently carried out to go on with. Enough money is not spent to get proper officers, or to give adequate training to probationers. The food is even now not up to the mark and is the same for all appetites 1 See p. 168. A MORAL HOSPITAL FOR IMMORAL CASES 123 in the same class, while outside light is on every side too carefully and jealously excluded from our convict management, although there are in truth hut few secrets of any moment in the prison-house. It is a disgrace to the country that no experiment such as that conducted since 1877 at Elmira has even yet been tried in England, although what is the Elmira method was devised by Mr. M. D. Hill and explained to us in his admirable book many years ago. It is a still greater disgrace that our judges^ and magistrates should be practically amateurs, in that they have had no compulsory training at prisons or in penal science in order to qualify for their posts. And also that even our Prison Commissioners Governors and their subordinates should be at the beginning of their service quite new to their exception- ally arduous duties. While frankly and freely admit- ting that the outcry which a certain section of our philanthropists wrongly indulge in, to the effect that our system of solitary confinement sends men mad, has no foundation in fact, madness to a very con- siderable extent does exist especially in convict prisons. And such lunatics cannot be properly 1 Garofalo, La Criminologie Ed. 2. p. 391. At Toulouse university there is a prison course under M. Vidal for students of Criminal Law, and this is the case too at Baden. See Coxa de Droit Crimiiul el de Science pinitentiaire par G. Vidal. Rousseau, Paris, 1901. 124 PENAL SCIENCE cared for in prison infirmaries. This is not carcero- genital insanity. It is insanity or gross defectiveness which existed in the unhappy individual before ever he came into the prison at all. If then our penal methods are too inelastic and parsimonious, and our prisoners often insane and of tener defective, is not a prima facie case made out for the Moral Hospital, rather than for punishment pure and simple ? It is ancient history to refer to the analogous case of the lunatic who was wont to be treated as an evil-doer, and has only now got his mental disease recognised as being as pitiable as the physical malady of the ordinary sick man in hospital. Is there no analogy between crime and physical disease ? If no man can define with assurance where physical disease begins and health ends, who will presume to turn the Eontgen Eays of his intelligence upon the mind of a defective criminal and say with authority, " At the time you committed your crime, though I never saw you before to-day some six months subsequently I pronounce you to have been at that date wholly responsible morally for the same." Is there not an analogy between the lesion in the body in disease, and that in the moral sense in crime ? Can no parallel be drawn between the progress of disease and that of defectiveness ? Is the slow but sure Descensus Averno less marked in the latter than in the former case ? Do not the diseases A MORAL HOSPITAL FOR IMMORAL CASES 125 of the moral sense vary like those of the body ? Are kleptomania inordinate lust vagrancy excessive irascibility and a host of other offences not as clearly marked in the defective, as smallpox scarlatina and the like in fever hospital cases ? Do we not notice in those morally and physically affected, the incidents of intermittence variation in form and degree curability and incurability, alike in their respective affections ? But, although it may be quite true that the difficulty lies in singling out those who are to go to the Moral Hospital, and also who to the place of punishment, flagrant cases will give no trouble. Mr. H. Ellis quotes Dr. Savage as saying of a lad who killed his sister and was sent to penal servitude for ten years, " In any case the boy is pretty certain to end his days as a lunatic or a confirmed criminal, and I fancy the best course has been taken to make him the latter. So society will suffer the more and the boy himself will be none the better."^ There can be but -little doubt that the Moral Hospital had it existed would have been the place for that poor boy. The same remark too applies to kleptomania properly so called, notwithstanding the cheap sneer of the unlearned magistrate, when this form of mental aberration was properly advanced as a defence in a case he was trying, " Yes, that is just the thing I am 1 The Criminal, p. 292. 126 PENAL SCIENCE here to cure." What ignorance and what belief in himself that functionary evinced upon that occasion ! The pity of it is that among penal scientists them- selves opinions sometimes differ egregiously. Doctors and jurisprudents cannot always agree, the former thinking crime to be all a matter of health, and the latter that bodily meni al or moral health has nothing to do with the question in issue, which is in effect,. Did A steal that article ? Then many of the doctors think alienists faddists, and the Eomilly Society again go too far, while Mr. Tallack's following are perhaps over-conservative. There is we fear no consensus of conviction, as to what is required to mend our methods among those who should and ordinarily do lead public opinion, namely those who have more or less made this particular subject of agitation their own. To bring however to a practical ending the present somewhat discursive chapter, which nevertheless con- tains the germ of the truth in this matter, which in proper soil should bear good fruit. Let us flog and not imprison our boys except in the case of really hardened offenders, who can only be treated in re- foimatories and afterwards drafted into the army or navy, and preferably perhaps as stokers. Our young men and those who are not old offenders should find their place in a less glorified moral sanatorium per- haps than Elmira, but at all events in a somewhat A MORAL HOSPITAL FOR IMMORAL CASES 127 similar establishment, where the idea of reformation is put far away in front of punishment. In the case of hardened offenders, they must be interned for the term of their natural lives, and induced to earn with the use of as little brute force as may be as much as they can for their common support. Punishment even when the proper mode of dealing with persons who have gone wrong, is but one prophylactic against the commission of further crime. Education better housing of the poor better conditions of labour and many other like things are also absolutely necessary to decrease our growing volume of crime. But till we have the Moral Hospital instituted and intelli- gently conducted for all proper cases, the bitter cry will still go up from our prisons, " Is there no balm in Gilead ? Is there no physician there ? " And the echo that the public conscience gives back must surely be, " Mea culpa, Mea 7naxima culpa ! " CHAPTEE VIII OUE CRIMINAL ADMINISTRATION Sir H. S. Maine astutely observes, that Frenchmen Swiss and Germans of a very humble order have a fair practical knowledge of the law which regulates their every-day life, while we are altogether singular in our tacit conviction that law belongs as much to the class of exclusively professional subjects, as does the practice of anatomy.^ The same authority calls attention to the fact ^ that social necessities and social opinion are always more or less in advance of law. An instance of the truth of the latter proposition is afforded by the objections raised by our lawyers not so very long ago to allowing counsel to accused per- sons, because the plaintiff especially when the crown is presumed to be in the right, a legal fiction kept up to this day in the universal right of reply of the Attorney General in criminal cases, in the licence ■■ Village Communities. Ed. iv., p. 60. ^ AncieTVt Law, Ed. xii., p. 24, OUR CRIMINAL ADMINISTRATION 129 still required by King's Counsel to defend prisoners, and perhaps also in the refusal to allow a solicitor the right to address even an inferior Court Martial on behalf of the person he is defending. That this conservative ^ spirit on the part of lawyers is not con- fined to England, is evident from the objections raised in France so recently to prisoners being advised by counsel when before the examining magistrate, as well as from Garofalo's biting sarcasm ^ on this class of examination being conducted otherwise than in the strictest privacy, and always of necessity in the presence of the accused. While the allegation that we in England do not take an active interest in our criminal law and practice, is borne out by the slow stages by which improvements are made in its regula- tion and administration. The chief Prison Acts of our time are those of 1853, 1865, 1877, and 1898, and none of these have excited any great amount of public notice. That we have not even yet a code appears to cause no general wonderment, nor is dissatisfaction shewn that occasional legislation by tinkering in matters of such importance, is all that is vouchsafed us in these days of progressive activity in most other directions. The reason is perhaps that our methods of criminal trial are felt to be on the whole good. That an innocent man is hardly ever convicted. That 1 Village, Communities, p. 74. See p. 47 sup. "^La Griminologie. Paris. Ed. iii., p. 376. t3o PENAL SCIENCE we have confidence in the uprightness of our judges, and believe that substantial justice is usually done in criminal inquiries held in all English Courts of Law, and therefore that they are called with reason Courts of Justice. It would be hard to shew that this modicum of contentment is wholly justified, and that there is no room for improvement in simdry directions in this connection. For example what greater injustice can there be, as is admitted even by a jurisconsult of the Draconian type like Garofolo,^ than that a man who has been honourably acquitted of a charge wrongly brought against him, should not be recompensed when he has thereby incurred material loss ? If a servant for instance through the ill-judged activity of the police be tried for an offence of which he is shewn to be clearly not guilty, yet nevertheless owing to this mistaken proceeding he loses his place, such servant has at present no remedy against the State, although in the case of private prosecutors an action might perhaps lie for false imprisonment. This is surely not satisfactory any more than are the law's delays ^ which frequently keep a man in prison in country districts awaiting his trial for perhaps four months, in respect of which too he can get no compensation if ultimately acquitted, as not infrequently occurs. ^ Garofalo. Op. Oit., p. 386. See p. 52 sup. "^ See Chap. iv. sup. OUR CRIMINAL ADMINISTRATION 131 Another hard ease which calls aloud for alteration is that of every poor person upon whom a serious assault has been committed, and who at present obtains no pecuniary redress. The offender should when possible be made to make reparation and when not the fisc, by reason of the failure that has ensued in not affording the injured man that immunity from outrage that he in common with all other citizens is impliedly warranted by the State, in return for the taxes he pays for upholding and the subjection he is put in under its system of police. But it is more particularly to our system of dealing with prisoners after conviction, that serious exception can justly he taken, than to existing methods of trial, which if archaic do not on the whole work much iujustice, or cause unnecessary hardship except perhaps in the cases already indicated. The individual accused of crime is not a parasite upon the body politic. He is one of its cells, and is entitled to as fair treatment as is any other corporate part however useful and important. The nex.ns therefore between the off'ence the offender and his treatment is as complete and far-reaching as in contract. And so the theory of the positivist school that the offence is a matter of no importance, but only the imputability of the oifender, is incorrect, just as is the value we attach to the offence, and the little care comparatively that we devote to getting at the life-history of the offender. 132 PENAL SCIENCE Another mistake made by the new school in its proposed treatment of offenders would seem to be, the overwhelming importance it attaches to the well being of society.^ Society it asserts must be pro- tected at all hazards and in this way rushes into the opposite error to that of Kant, in altogether elimin- ating the principle of utility from punishment, and substituting for it merely that of abstract justice.^ The truth probably is that as we get our notion of punishment from the reflex action of the person in- jured, so our right to punish is derived from the 'patria potestas of the chief of the archaic house com- munity. Formerly society was made up of a number of family units and not of units of individuals, and it was then the head of each family who both made and administered his own law. As his authority by de- grees got into the hands of the sovereign power, so did his right to punish. This right he ought to have exercised upon mixed principles of justice and utility,^ and so no doubt ought we, and not merely with the view of doing our best for society. Just as the idea of expiation does not rightly come in, neither does that of punishment properly so called. Who has ' La defense sooiale. ^ And also as Garofalo says expiation in the same way as did Plato. Criminologie, p. 267. ' De Broglie, Du droit depunir. Ecriis et Discours, p. 164. Vidal, Cours de Droit C. p. 54. OUR CRIMINAL ADMINISTRATION 133 taught us how to weigh in a just balance another's imputability, and to affix to it the true measure of retribution ? The function then of our Courts is to do their best for society, never however forgetting that it is a member of society that will have to suffer whatever penalty they may award. .Nothing is easicir than to place in one group the various apostles of the new school, and to make them all responsible alike for the atavism ^ so often " prayed in aid " by Lomb- roso, or for the healing balm that AcoUas^ every- where sees in penitentiary education, or for Ferri's panacea of most ^ unhealthy colonies for incorrigibles. These are individual fads of the same type as Garo- falo's desire in the ease of the crirwind n'e to render la prolification impossible, and further to abandon him in the country of savages sans s'inquiefer ensuiie de son sort. Such even by many of the sterner conti- nental Dracos are considered counsels of perfection, and outside the range of practical measures. All then that our courts can do, is to order prisoners to be treated in such a way as the principles of en- lightened contemporary sentiment prescribe, for the common good of society and of such persons them- selves. In dealing with prisoners both Courts and Prison ' H. Joli. ie Crime p. 5. and p. 6. ^ LesDilits et lespeines, pp. 13. et seq. ' Sociologie Criminelk, p. 554. 134 PENAL SCIENCE Authorities are too apt to forget that to punishment Bentham's theory of equality does not apply, it being a working rule of practical legislation not of strict Morals.^ Therefore, all persons guilty of stealing a particular thing are not equally culpable or imputable,^ and so not deserving of the same punishment. When the English Criminal law was introduced into India, the ground upon which the natives objected to it was, because it^ seemed in their view manfestly unfair that offending men women and children should be treated alike, Indian women living such different lives to men. We still too often punish similarly defectives and those wholly responsible for their acts, and adopt Bentham's working rule that all being equal all (as a rule) must suffer alike, the fact being that no two men are equally imputable. It takes a long time to realise, that the common law idea of the ordinary reason- able man does not apply to the measure of punish- ment as it does to that of damage, and this fact has to be borne in mind as much as the personal and pro- portional character of punishment, of which all the world sees the utility. In King Alfred's day every "homeaitler " with the wife of another, was held to be ' Maine. Early Institutions, p. 399. ^ " The Modern administrator of Courts of Justice has confessedly his hardest task before him when he undertakes to disoriiiiinate between the degrees of criminality which belong to offences within the same technical description." Op. cit. p, 380. 'Maine, Village Communities, p. 116. OUR CRIMINAL ADMINISTRATION 13s be properly killed outright. ITow under the code Napoleon^ one to five years is the punishment awarded to the killer of such an one, according to his estimated culpability or the supposed value of his excuse. Here progress has taught the necessity for differentiating individuals. Again not only are not any two men in general equally culpable, but to hardly any two is a similar period of imprisonment the same punishment, since it does not entail in each case the identical quantum of suffering and odium, while this truth is still more obvious in the matter of hard labour. Prisoners are npt necessarily victims of atavism imbecility or degeneracy. Crime often is the conscious violation of laws without which society could not exist, laws that is of morality justice and humanity. Franck says that the very idea of crime would be impossible, if man had not some internal knowledge or perception of such laws, and did not know that he is a responsible being and free to act as he will.^ The fact is that this is true of some prisoners and not of others, and obviously those of whom it is true require different treatment to those of whom it is not. Crime is not properly defined by Garofalo, as " the violation of that reasonable senti- ment of pity and justice which in the present day we 1 Sect. 324. See p. 162, inf. 'A. Franck, Journal des Savants, Oct. 1889, p. 591. 136 PENAL SCIENCE all possess." Nor is Tarde right in saying, that crime is an act that contemporary public opinion defines as criminal. Beaussire's definition, Lz ddit c'est la violation d'un droit et non pas de tout espke de droit, mais de celui qui est rigoureusement determine et exigible par la contrainte^ goes much nearer the truth, and it is such as have wittingly done something coming under this definition, as well as for defectives of all sorts, that Courts of Justice have to act as a first sieve for the purpose of classifying. This principle of classification, is merely an extension of the division of accused persons into not guilty guilty and criminal lunatics. Here we have the guilty class sub-divided into groups showing different grades of guilt. This further classifying is one of the limited improvements in our penal system brought about by the Prison Act of 1898, and the Commissioners for Prisons in their last report take credit for England, that it is the only country in which such a method prevails. This is probably true as regards England being the only country where a classification made by the Courts exists, such as the three divisions created by the Act, which was itself however merely a further modifica- tion of the old one of prisoners sentenced to imprison- ment with and without hard labour. But the same result is attained in New York for example by making choice of the prisoners to be sent to Elmira,or in France 'Principes du droit. Aloan, Paris, 1888. OUR CRIMINAL ADMINISTRATION 137 by automatic classification according to the form of imprisonment ^ awarded. That a proper classification is necessary and indeed of primary importance, every one acquainted with the elements of penal science cannot fail to admit, but whether this is effected by the Courts, or by the Prison Authorities as by the institution of the Star Class, is of no real moment. Obviously everything depends upon classification however arrived at, inasmuch as it is a step towards the individual treatment of prisoners, the goal we have to try for in last resort. Little help is here to be obtained from the study of continental methods, as the prison requirements of criminals in each country depend upon a variety of differing circum- • stances, which the foreigner is only too likely to misapprehend. Other good work attempted by the new Act lies in the direction of moralising prisoners, by the employment of better trained warders, by more education, by association, by the privileges in proper cases of talking having photographs of relatives writing more letters, and of being able to obtain sensible library books. All this is as it should be, and only needs further extension upon a yet broader basis. The same remark applies to the incentives to good conduct offered by the Act in the shape of increased gratuities, further practicable remission of sentence, and in the case of convicts possible non- ^ e.g., tramaux fords reclv^ion or imprisonment. 138 PENAL SCIENCE liability on release to report themselves to the police. The gratuities prisoners can earn are capable of great increase, and the gain of remission of sentence should be possible in the case of all under detention, and not of those only who are sentenced to six months or longer periods of imprisonmeut. The proportion of sentence remitted in each case too might well be still further increased. Yet another salutary consequence of the Act is the attention now paid to hygiene. Not only is the food scale under revision, but the principle has apparently been grasped at last, that whether or not food is worth eating for health purposes depends upon the cook, provided the quality leaves nothing to be desired. The prison scale is still as many think too- limited and sufficient margin not allowed for big appetites, inasmuch as the Procrustean bed principle is it seems religiously applied except when the medical officer otherwise orders. This is an error on the wrong side, and the position would be better reversed. Another move in a hygienic direction is the isolation of tuberculosis patients, which should be extended to all suffering from pneumonia influenza and similar infectious complaints. The continued keeping of lunatics in infirmaries is always a grave error and harmful in many instances, while the non-employment of an alienist to see to their treatment looks like a miserable example of cheese-paring economy. The OUR CRIMINAL ADMINISTRATION 139 whole subject of insanity, incipient insanity, defective- ness and the like in prisons needs most careful study, and upon this it would be folly to dogmatise. A glance at the statistics ^ however shows that there were last year 116 cases of insanity certified in local prisons, and 24 among our convicts. This seems a high percentage, and we may feel pretty sure that it has been swelled by none but the worst cases. The deaths too and releases on medical grounds are upon analysis not satisfactory. It would appear that the medical staff needs augmentation, and hospital ac- commodation and administration which with us are uniformly mediocre, require considerable improvement to compare for example with similar accommodation and management in the best continental prisons, though they are certainly far better than in the worst and also in most American establisliments of like kind. Perhaps the best feature in the Act of 1898 is Its supersession of the autocratic old system of corporal punishment for offences committed when under restraint, by making the fiat of the Secretary of State obligatory ia every instance. If a man is entitled to the verdict of a jury before he is sent to prison, he would appear to be prima facie entitled to a verdict likewise as to whether or not, often upon the uncorroborated testimony of subordinate prison officials, he has committed an act deserving of so 1 Prison Report, 1900, p. 23 and p. 26, I40 PENAL SCIENCE severe a method of repression.^ If flogging is still necessary to ensure discipline in Anglo-Saxon prisons, a matter that is open to doubt, it cannot be hedged round with too many safeguards against abuse. Obviously however its value as a deterrent, the only justification for so barbarous an institution, is seriously lessened by the time that is necessitated by each reference to head quarters. The effect of punishment is quadrupled by its promptness, and the fact of being inevitable in application. Any appeal lessens the moral value in both these respects. Thus now more than before we have to face the serious question, whether its total abolition is not the proper course for legislation to take. In many continental countries it like capital punishment has long been abolished. Yet race characteristics and the circumstances of prison life differ so much that, upon the mere ground of its utility for disciplinary purposes with us which many believe to be over rated, no true conclusion can be drawn from its abolition elsewhere, any more than from its frequency for example in Eussia upon which Dostoieffsky throws so lurid a light. Capital punishment again, which is only corporal punishment in its extreme form, might probably be done without in the present state of English society, without mak- ing life generally less secure than it is at present. Certainly the crime of murder is capable of subdivision, ' Code P^nitentiajre xiii. (1890) p.'326. OUR CRIMINAL ADMINISTRATION 141 and many deeds now called murder might well be put into the category of manslaughter, and thus a prisoner whom no judge would allow to be hung, be saved the ignominy of a trial for the capital offence. While on the subject of the amendment of the criminal law itself as distinct from that of its practice, it should not be forgotten that infanticide and suicide to say nothing of political offences are not yet regarded in their proper light, but treated by us too severely. While company promoting and abuse of confidence by those in a fiduciary position such as solicitors, who have not the temptation of want to urge them on, are certainly not dealt with as sternly as they deserve. With us imprisonment is still held to be too much of a panacea, and yet enough is not done for prisoners on their release. Prisoners' Aid Societies should be far more largely subsidised by Government, since they are so highly praised by the authorities, and the looking after those who have been in jail should not be left so much to private agencies. The quasi-penal agricultural colony system which has proved useful at Dole Merplax in Corsica and elsewhere, might well be tried on some of our own farms now out of cultivation, and an attempt made in this way to get the labourer back to the land. Eecruiting for regi- ments especially in bad climates and for stokers in the navy might perhaps be pushed among a suitable class of offenders, and in this way a double benefit 9 142 PENAL SCIENCE would be brought about, namely to the individuals themselves and also to the State, and useful reparation be thus cheerfully made by youthful wrong doers to their offended country. The offender and the State are interdependent entities, a fact that is too often lost sight of in punishment pure and simple. Glimpses of the recognition of this great verity appear in the last Prison Act, as has been already seen. In the next it must shine out with a stiU brighter light. The desire that this may be so should be clearly expressed by public opinion, which in this respect with us is unfortunately not now any more than when Sir H. S. Maine wrote ^ so much up to date as it is in several countries on the Continent, and also in the most enlightened of the United States. With us in this connection however Falleret in- deprensus et irremeabilis error is but the criticism of the pessimist, even if Altiorapeto stands for the some- what oversanguine estimate taken of himself by the better class Prison official of to-day. The vraie veriU would seem to be that we are improving, though not yet by leaps and bounds. ' See the commencement of this chapter. CHAPTEE IX THE PRISON ACT 1898 That same writer who first described the mark towards which the legislator should press as La massima felicita divisa riel maggior numero, Bentham's Greatest happiness of the greatest number, almost upon the same page denounces like his even greater forerunner Montesquieu the squalor and horrors of the prison-house. When we recollect too the canon of an authority such as Helvetius that punishment does not lessen the volume of crime,^ it is borne in upon us with some force, on perusing the introduction to the last Report of our Commissioners of Prisons, that Vixere fortes ante Agamemnon multi whose methods and way of thinking were by no means identical with theirs. The optimistic valuation set upon the first year's working of the Prison Act of 1898, beneficial on the whole as far as it goes though this has probably been, must be largely discounted upon the showing of the Be-port itself. For suicides to the number of 10, and iNote to Esprit des Lois, book_vi., chap xi. (Paris, Ed. 1819.) 144 PENAL SCIENCE attempted suicides though often described as feigned to a still larger amount, besides 145 cases of insanity and 45 releases on medical grounds, have admittedly taken place, to say nothing of innumerable punish- ments including 29 floggings, as well as the various escapes and Smeutes at Borstal and Dartmoor, de- scribed in the daily press but not referred to by the Commissioners. As a particular instance of the use of rosy-timed spectacles by the directors of convict prisons, we find them stating^ that " the great mass of convicts behave well, misconduct being confined to a comparatively small number," the fact being nevertheless on their own showing that out of 3,746 males only 2,575 and out of 194 females but 159 received no punishment. Only imperfect criticism can be offered of the working of our present Prison Code, because the chief information that outsiders get is from the Report itself, the details of which are often scanty and sometimes plainly insufficient.^ If some amateur criminal, like the pseudo-lunatic press- man who lately got himself shut up in a New York lunatic asylum for the public good, would give us his experiences, we should most probably see things in a less attractive light. Yet the main way in which the public mind is informed and popular opinion induced to press for progressive activity in prison reform, is 1 iJepori, p. 26. (1900.) ^ Cf. the case of Frencli statistics mentioned at p. 148, inf. THE PRISON ACT 1898 145 by means of the fair comments of those competent to criticise the existing state of things, which whether this is able to be here shewn clearly enough or not, nevertheless calls loudly for amendment. To take first the case of the number of deaths in prison. These seem to have amounted to 118, of which twenty-seven occurred within the first week of imprisonment. It needs no insistence that there must be something radically wrong when we find that nearly one-fourth of those who died in jail succumbed within a week of their imprisonment, inasmuch as we are told " In all but three cases the fatal disease was existing on reception." ^ What a mistake the courts that sentenced such pel'sons must have made, and what incompetence the medical authorities apparently displayed, if they could any how have got the chaace of so doing, in not informing such courts of their true physical condition ! The truth of course is that criminals are often reduced to commit crime by their miserable physical condition, for the only thing that diminishes crime, to continue a quotation begun above, is L& genre de vie des joeuples et la facility des suhsistances,^ neither of which with us have of late been propitious. Miserable individuals such as these in their deplorable physical condition it is inhuman to send to a jail. Their place is ^Ibid. p. 35. ' Msprit des Lois, book vi. , chap. xi. , last note. 146 PENAL SCIENCE obviously the hospital. What can be^more'sad^than the case of 339 E. T.^ who aged only nineteen "was sent to prison for a month on 26th January, 1900, and who died of acute pneumonia following upon influenza on the 4th February following ? ITor are the particulars of many other deaths much more satisfactory. For example 2,924 F. J. A. S. aged twenty-four, seems to have been sentenced to death on 21st November, 1899, and to have died on the 16th January following from epilepsy and paralysis. To take but one more of these most sad instances of " blunders somewhere." 459 T. L. aged forty-six was sentenced on 2nd August, 1899 to two months' hard labour. On the 13th September he died of epilepsy and pneumonia, his general health on reception into prison being noted as good ! We have no information in the case of deaths as to the offences of which each prisoner was convicted. And so the eloquence of prison mortuary epitaphs such as the foregoing would be marred by any comment. These prisoners though dead yet speak, and speak with a voice that will some day make itself heard by every one who has ears to hear. If we turn to the particulars of prisoners certified as insane, the wretchedness of the state of affairs too often disclosed in the Beport is yet more startling. On the 14th October, 1899, a labourer of twenty-four ^Seport, p. 134. THE PRISON ACT 1898 147 is sent to hard labour for three months for unlawfully exposing his person. ISTor until the twenty-fifth of November is he found to have primary dementia. "What punishment he was undergoing in the mean- time, and what the prison authorities were about, we are of course told nothing. Again a man of thirty- five was received into Northampton Jail on the 3rd of May, 1899, on the 29th June convicted of stealing a pair of boots and a razor, and not before the 24th of July certified for removal to an asylum as suffering from incipient general paralysis. To take but one more instance among many. What would a con- tinental criminologist of the Adolphe Prins type say to the case of No. 2,116, a male aged forty-one sentenced the 24th of May, 1899, to three months hard labour for unlawfully exposing his person ? Certified as a general paralytic not before the 12th of the following July, he was removed to the lunatic asylum only on the 4th August. In the face of tragedies such as these is it matter for wonder that the Medical Ofi&cer at Borstal says,^ " The prison population is in an increasing degree recruited from a section of the general population showing indica- tions of physical and mental as well as moral degeneracy"?^ When at Parkhurst we find an ^ Report, p. 540. ^Cf. Beport, p. 38: "In the case of the man his capacity for earning wages is lost, his home has to go, and destitution results, destitution lieing one of the allies of prime," 148 PENAL SCIENCE average of 27 out of 700 prisoners lunatic and 80 weak-minded, it is not hard to give a certain authority to Letourneau'a ol)iUr dictum in his preface to the French edition of Lombroso's L' Homme Criminel, " Man obeys ever with fatal certainty that which is his strongest impulse," or to Maudsley's view that the physical and mental organisation of criminals is defective, and that they have as a rule a predis- position to disease. It was no doubt to avoid regrettable incidents happening in the case of defectives such as those mentioned above, that the French Government saw some twelve years ago the wisdom of among other things largely augmenting and reorganising the medical service at St. Lazare. The Prison Code of France^ is a compendium of regulations which, whether carried out in their entirety or not, can hardly fail to raise the tone of the prison service, while the Criminal Statistics and the Statistique P/nitentiare, which really do show the ppsitiou of the French prison service and of the various penal establishments year by year, give information such as we might seek for in vain with reference to similar matters in our own land. Such excellent statistics as these are of double utility. They afford the student of penal science proper material for study, as well as furnish the central authority with data for verifying ^ Paris, Dupont (Melun, Imp. Adm.) THE PRISON ACT 1898 149 shortcomings in prison administration, and for correct- ing similar abuses in the future. Criminal Statistics to be complete should set out all offences that have in any way come to the knowledge of the police. In this case the moral condition of the country is disclosed after a fashion, as the French Statistics for 1885 say, that ought to be appreciated " without illusion or discouragement." Without illusion, because human nature will ever remain the same by reason of its passions its temptations and its vices. This is nowhere better seen than in Qu^telet's astute remark, that the tribute which man renders with more regularity than the one he owes either to Nature or to the Fisc, is the tribute he pays to Crime. Without discourage- ment, because statistics lay bare the moral ulcers that affect humanity and so draw attention to the gravest social problems, while promoting the study and application of measures proper to combat and above all to prevent such acts as menace society most dangerously. These results especially the latter cannot be hoped for through the action of penalties of whatever sort. Punishment in its origin may have been merely the reflex action of the individual when injured himself. Its first expression was the lex talionis. Then from the Leges Barlarorum came the idea of compensation (wehrgeld, fredum) and after- wards the fines that were so much favoured in the ISO PENAL SCIENCE feudal days, since out of them the lord sucked no small advantage. But these latter never satisfied the public conscience as is shown by section 234 of the Code Napoleon, which to this day permits the killing of a man found " home-sitting " ^ with the wife of the slayer. Punishment is perhaps sometimes necessary, but it can never be safely looked to as a panacea or prophylactic, a fact as yet not sufficiently recognised. But to return to our Prison Commissioners' Beport. We find here one excellent feature not to be discovered in the more scientific one of France. Extracts are given from the reports of the Governor Chaplain and Medical Officer of each English jail. These are sometimes eloquent of the interest taken by the writer in his work. On page 204 is a report from the persual of which it seems clear that the Governor who makes it feels acutely the humanising character of home influences, the good done by the proper kind of male prison visitor, and also by the Prisoners' Aid Society and its officers to prisoners even before release. The Governor of Birmingham Prison again ^ sees that the extension of gratuity (10s. per six months with a maximum of £2) would clearly render prisoners more eager to gain a remission of sentence. Eeference to the opinions of various 'Law of King Alfred Thorpe's Ancient Laws, i., p, 91. Of. 134, sup. 2 Rep. p. 179, THE PRISON ACT 1898 151 Medical Officers which illustrate this has already been made in these pages. Furthermore the report itself breathes a humane spirit even when expressed in somewhat halting and tentative terms, and when praising as we think too highly the last Prison Act, which was a mere compromise and therefore does not go nearly far enough. Who for example after read- ing Franck's PMlosopMe Fenale ^ can have any doubt that photographs of relations should if possible be in every cell ? Or that the facilities for communication (oral and by letter) with all desirable connections should be vastly extended ? Speaking of civil death abolished in 1848 Franck says, " By it natural ties are broken which Nature has proclaimed to be indis- soluble. The guilty one is smitten even in such honourable feelings as he still has, and in his most legitimate and holy affections. He sees no more his wife and children," etc. Are we not often doing the same thing, if to a lesser extent, while a man is detained in prison at the present time ? We boast in our report of letting a man off half his term of detention on payment of half the alternative fine, but Franck^ well shows how immoral is the whole system of alternative fine and imprisonment, and of giving the same fine to rich and poor alike. Five shillings for drunkenness to a workman is a considerable sum 'P. 155, ed. 4. 2Pp. 156, 157. 152 PENAL SCIENCE to have to find,^ to a well-to-do offender nothing at all. Montesquieu ^ tells us that even under the old French laws non-nobles paid forty sous for breaking the law, nobles sixty limts. The principle here advo- cated then has at least the merit of not being without precedent. The Commissioners proceed to praise the provision in the new Act which no longer permits debtors to loaf about the prison all day long, and have good food sent in from outside. Also its general humanising effect, concerning which they say that the Secretary of State will agree, that ^ " the great labour and care which the many new rules' and regulations in various departments have entailed on all members of the prison staff have not been thrown away." This no doubt refers to the extra labour thrown upon of&cers, which is more bluntly put by the Governor of Cardiff Prison : * " More daily exercise, much more visiting by friends, and more general supervision require an increased staff, without which it will be impossible to carry out adequately the intentions of the Act." They agree inferentially that the principle of rewards for good behaviour might be extended with advantage, and generally breathe a humane spirit throughout their somewhat optimistic references to the existing ^ The police give no time, 'Report, p. 210. '^ Paris ed., 1819, vol. i., p. 139, note. ^Beport, p. 12. *Iteport, p. 217. THE PRISON ACT i8g8 153 state of things. Moreover the new classification of prisoners by the courts is shown to have been often faulty, while caution is evinced in not finally settling the new dietary until after a full year's experience. The report of the chief Medical Officer is thorough, and there seems no real intention to gloss over unfortunate events anywhere. Nevertheless from a superficial comparison of our Prison Eefort with foreign ones of a similar kind, it may perhaps be roughly said, that while it shows more heart it likewise shows less head. The best table is that on page 170, setting out the relation of various forms of insanity with different phases of crime in the cases certified as insane in local prisons. But why not in convict prisons as well ? In both and not in one only of the tables giving the number and particulars of deaths and releases on medical grounds, the age of the person referred to might with advantage be given, as well as in both cases the offence for which he was convicted, while suicides should perhaps be put in a table apart, and the reason for their being confined to males be more satisfactorily explained.^ It is curious that out of 86 male insane cases 19 should be general paralytics of whom 13 were certainly so on reception, and that of these 8 should be larcenous. Also that no death or release is attributed to locomotor ataxy, and only one to tabes mesentorica and one to general paralysis. ^Seport, p. 39. 154 PENAL SCIENCE The value set upon prison work must surely be arbitrary as it is so uniform. To estimate the worth of institution labour is always difficult. But ^ why 14 wheat grinders earn £26 15s. is not clear, if 6 cleaners and jobbers' work about the prison is esti- mated at £115 3s., presumably for the same period. Obviously however with reference to the foregoing remarks it may be truly said, that not only will any stick do to beat a dog with, but that any hand can apply such stick and often maladroitly. The difficulty lies in correcting with judgment, and suggesting an efficient remedy for the defects of the dog under treat- ment, and this is the business end of the penal tin- tack upon which we are now about to tread. The Prison Act does not go nearly far enough, just as the practice of our criminal courts and our miserable lack of systems of prevention each still leaves much to be desired in English methods of dealing with offenders. Greater facilities for light work for the defectives and weakly, both for those who have and those who have not fallen into the hands of the police, would clearly lessen the criminal population calling for treatment. This belongs rather to the ethics of social science than to criminal jurisprudence or penal science proper, but by reason of its com- manding importance it cannot be altogether passed over even here in silence. Government works charity 1 P. 446. THE PRISON ACT\Z^% 155 organisatioQ and a large extension of the kind of assistance given by Prisoners' Aid Societies could be made to do much, though of such beneficent means un- fair advantage might perchance often be taken. As to the practice of courts of justice, more attention should here be paid to the previous history, and the existing physical mental and as far as can be ascer- tained moral condition, of the prisoner than is done at present, in that as yet we chiefly try to show only that on a particular day he did a particular noxious act. If when detained before trial the offender were visited by a competent alienist, and his history got up by the pohce and the result brought to the know- ledge of a court presided over by some one who was not a mere lawyer, an important step in the right direction would have been really taken. When it comes to dealing with the case, the moral hospital and the indeterminate sentence would be of great use in proper instances, and in others the true kind of workhouse or agricultural colony for incurables, from the supervision of which they would hardly ever be released. The young should never go to jail, for for them there is usually hope. The old offender is past cure as a rule, and must be forcibly propped up or he will inevitably fall again and so be a continuous source of trouble to society. As however drastic measures such as these are as yet hardly within the range of practical adoption, and iS6 PENAL SCIENCE since our habit is rather to improve by degrees the existing legislation than to attempt a radical change, the main defects in the existing practice calling for remedy seem to be as follows. Our prisons want more money spent upon them. The doctors are not numerous enough, nor at all events at first sufficiently conversant with the class in the direction of whose lives they ought to play so very prominent a part. If prisons were used as cliniques for medical students desirous to enter the prison medical service, much might be there learnt. This is done in other countries. Why should it not be tried at Parkhurst ? The same sort of thing, mutatis mutandis, is feasible too in the case of attendants and officials. A step in the right direction was taken when prison cooks were taught their business, that so the small rations allowed might not be depleted of their nutritive value by reason of kitchen incompetence. In French lunatic asylums the head cook is almost always a man of culinary science, and certainly a professional of high attainments. Passing again more particularly to the provisions of the Prison Act of 1898, its principles might well be extended in some such directions as these. Fines should be made proportionate to the monetary condition of the offender, and more time for finding them given by the police. A grave diffi- culty of course presents itself here at the outset. If a prisoner sells up his home to pay a fine, this form THE PRISON ACT 1898 157 of punishment ceases to be personal.i and involves his family as much or more than himself. The same result however is brought about by the present method of putting the bread-winner in prison. More- over reparation should be made to the party injured as far as possible by the offender, and when this cannot be done by the State. If a man has to go to prison, he should be given every facility for keeping up the remembrance of his home, by being allowed to keep photographs, write letters, and see proper friends, as well as such philanthropic visitors as will direct his thoughts, at a time when he is probably somewhat more malleable than usual, in this humanising direc- tion. He should be encouraged much more than he now is to behave well in prison by the extended use of gratuities and privileges, and also by further pos- sible remission of sentence. His punishment ought clearly to take the form of useful labour as much out of doors as possible, and not in comparatively useless forms. He must be made to see that he is really earning money, and then there would be less scope for the somewhat imaginary accounts with which we are now presented of the value of prison labour. The idea of prison labour injuriously competing with out- side labour should not be allowed to interfere with its utilisation to the fullest possible extent, whatever the outcry of particular trades, even though the mem- 1 See p. 163, inf. 10 158 PENAL SCIENCE bers of these be mostly voters which the prisoners with whom we are primarily concerned are probably not. The difficulties of the associated labour of prisoners are manifestly great, but these could be got over by the employment of a larger and more efficient prison staff. Money must be expended especially at first to arrive at beneficial results, and the present starving of the Service by the Treasury lies at the root of the bulk of its existing shortcomings. If in addition the classification of prisoners as by absolute segregation in tuberculosis cases was further carried out, and education and individual feeding and physical treatment better attended to, our houses of detention even if still used as prisons would prove of far greater general utility than they are at present. In a word then the problems of penology are these. To be sure that the patient is the right one, a fact to be ascertained by the courts. To find out all we can about his nature quality and past history, and make up our minds whether he is curable or in- curable. To deal with him in the most efficient manner as a citizen, whose rights are but suspended in either case. When discharged to see that he has the chance of earning a possible if arduous livelihood. The difficulty lies in working these problems out, but help is afforded in this direction by the Eeports of International Congresses such as that of Criminal Anthropology, and by the bulletins of the Inter- THE PRISON ACT 1898 159 national Association of Penal Law, and light thrown by the experiments made at Elmira and elsewhere.^ These helps we should not be so insular as to dis- regard or deprecate, until prepared to take the initiative ourselves. ' See H. Ellis, The Griminal, pp. 136, 32. CHAPTEE X EBP0ET3 OF PEISON AUTHORITIES COMPAEED The very general use of expressions such as the fitness of things the survival of the fittest a perfect fit a fitting reason and the like, raises the presump- tion that fitness is that which we now strain after in special. Fitting correctly punishment to crime then if the thing to try to do is yet presumably difficult, assuming that such a statement as the following by Sir H. S. Maine is to be accepted un- reservedly. " It is always easy to say that a man is guilty of manslaughter larceny or bigamy, but it is often most difficult to pronounce what extent of moral guilt he has incurred, and consequently what measure of punishment he has deserved. There is hardly any perplexity in casuistry, or in the analysis of motive which we may not be called upon to con- front, if we attempt to settle such a point with precision."^ Nor is the difficulty lessened when the force of the arguments used by Mr. H. Ellis in his chapter on ' Early Institutions, p. 380, PRISON REPORTS COMPARED i6i the treatment of criminals ^ is recognised, in which he quotes with approval two such different authorities, as Eeinach saying in Les Becidivistes, " Imprisonment especially if short is an excitation to crime,'' and the words of Prins The Inspector General of Belgian Prisons, " What is the advantage unless the necessity is absolute of putting into prison the head of a family," etc.^ ? In fitting punishment to crime we are therefore met with two initial difficulties, (A) the form of the punishment to be inflicted, due re- gard being paid to the kind of criminal and the nature of his crime, and (B) its quantum by reason of his imputability and susceptibility. There is not one common antidote for all poisons, nor is the same medicine given in similar doses to every patient. Why then should all offenders be either fined or im- prisoned, and all who for example steal £5 under apparently similar circumstances ^ be (broadly speak- ing) treated to a like amount of punishment ? As an aid to appreciate the advantage of appro- priate punishment, that is of retributive treatment which is the form modern society's dealing with a recalcitrant member should rather take, a few pre- liminary observations upon the history of punishment and the right to punish as well as upon its proper 1 The Criminal, chap. vi. ^ CrimiTMliU et Repression. Ed. 1885. "Nineteenth Century {1901) Feb., p. 275. 162 PENAL SCIENCE aims and objects may here perhaps be not out of place. The origin of punishment is often attributed to the reflex action of the individual injured, which in the case of a person struck prompts him to strike back ^ with a force to a certain degree proportionate to the impression the blow just received had made upon himself. Some evidence of the truth of this view is seen in the circumstance that, when the duty of punishing passed to the head of the family as part of the patria potestas, he adopted much the same principle, as did the Sovereign power upon which it devolved in the next stage, which latter authority even in the highly developed instance of Eoman law always permitted the offended person to- strike back the offender with a harder blow when caught red- handed, than after the sting of the original outrage ought through the action of time to have gone off.^ A similar principle is still recognised with us in provocation in aggravated cases being permitted to reduce murder to manslaughter, and in penal science it is now usually expressed by the formula that the punishment meted out in each case should be pro- ' Whence came directly the Lex talionis (talis, similar) though Franck says it was never used by any State. Philosophie du Droit F^nal, p. 83. ^ Maine, Ancient Law. Ed. xii. p. 378. Franck, Phil, du Droit Pinal. Ed. 2. p. 156. Of. the idea of Prescription. See p. 83 supra. PRISON REPORTS COMPARED 163 portionate to the offence committed, and also where we can see further afield proportionate also to the circumstances of the offender.^ Thus a poor man should not he fined as heavily for a similar theft as should a rich one, (a) because such punishment would not he equal in the two cases, and (b) because the temptation to steal was inferentially greater to the first than to the second offender. Another great rule, namely that punishment should be personal, that is should strike the wrong doer only and not like an angry blind man swinging a club others as well, is of later origin. In olden days the com- munity to which he belonged was equally liable with the actual offender for loehrgeld fredum or hannum, and if he could not be found some relative was wont to he punished in his place.^ The root idea seems to have been that the tribe must not be allowed to suffer, hut that the injured member should at all hazards be compensated. The same thing is done now-a-days. Not that a substitute is accepted for the offender who shall be permitted to suffer for him vicariously, but his family is too frequently reduced to misery along with him, as the necessary result of his punishment. Prins to continue the quotation given above says, "What is the advantage, unless » Picot in Journal des Savants 1900 p. 562. Of. Tarde. Orim. Comp. p. 146, as to the modern liability of an entire body of armed men for the deed of one of them. ' Journal des Savants, 1895 p. 339. i64 PENAL SCIENCE the necessity is absolute, of putting into prison the head of a family to devote him to infamy, to com- promise him in the eyes of his fellow workmen of his wife and of his children ? Is this not to condemn these latter to abandonment misery and mendicity ? " ^ Among the difficulties then that arise in making punishment proportional is probably this, that in so doing we shall be bringing about in it too great a similarity to the Lex Talionis, ^ and that in making it strictly personal, we shall be freeing the offender from what he ought to suffer in order to save his family from misery. As the right to punish springs from the impossibility of society going on without its proper exercise, and not from any obligation on our part to make the offender expiate his crime for any reason, or yet to show our abhor- rence of his act by making him a moral scarecrow, so its primary object should be reparation to the injured party 2 and the reformation of the offender, rather than retribution or even the prevention of crime apprehended from other evil-doers. About the 16th century the idea of punishment got itself crystalized into that of public vengeance and public utility ^See too Franck. Op, Git. p. 155. ' As by punishment involving loss of member, see Beames Qlan- ville p. 3, and Wilkin's note. 'This principle is recognised in the Code P^nitentiare, and by Garofalo. Crim. p. 375. PRISON REPORTS COMPARED 165 combined. To make an example was at that period the main object of the criminal law, and therefore torture and all sorts of other methods were re- sorted to that admission of guilt might be freely obtained. Thus the Defense Sociale^ become so arbitrary in its methods, that Beccaria Kant Voltaire Bentham and Eomilly rose in their wrath against it one after the other about the same period a century or more ago. The pendulum then swung into the opposite direction and free trial by jury became the order of the day, and the idea grew up that ten crimi- nals had better get off than one innocent man be wrong- ly condemned. With regard to punishment Kant put an end to the doctrine which had been unreservedly accepted for so long, that its application merely depended upon public utility and not likewise upon principles of abstract justice. After him -De Broglie and Eossi clearly showed that if the root idea of punishment was justice, so that it could only be exercised in cases of violation of the Moral Law, yet that its measure depended upon contemporary social requirements. The double principle of punishment was now for the first time fully recognised, that not only should a firm attempt be made to reform by its means the criminal himsalf, but alas to repress the manifestation of crime by others. Soon however the ^Astothe 'noouity' temihilita of Criminals, see Vidal Count dt Droit Grim. p. 147. i66 PENAL SCIENCE principle of utility got the upper hand again, with penal scientists, as these mixed methods failed to stop recidivism, and La dkfense socialc became the chief and almost the only object of the Modern Positivist school. To carry this out, society has to be made to believe that the criminal is a wild beast who kills because he has an atavistic instinct to kill, and the chief question is not his guilt, because he is practically held to be irresponsible for his acts, but the measure of his danger to . society and not his blameworthiness as is the doctrine of the Spiritualists. With the Positivists then the question of the ap- propriateness of retributive treatment does not come to the front. That which is mainly before them is what is best for the State, of which they fail to remember that offenders are an undivided part. Some Positivists think them curable, others not, but almost all hold criminals to be the fated victims of atavism, or a return to the savagery of ancestors. This is not true because criminality is not so wholly repugnant to the ideas of men as it would be if such were the case, and also because much of what is now considered crime has always been so regarded^ in the past. Directly the individual and not the family or tribe became the unit, the life of the individual (he being no longer lost in the family) got itself 'Joly, Le Crime, reviewed by A. Franok. Jonmal des Savants 1889, p. 580. PRISON REPORTS COMPARED 167 respected, and to kill him was punished. The early days of men were not anarchical in the modern sense of the term,^ nor was man then upon the whole more criminal than now. And so atavism cannot be successfully pleaded as an excuse for lack of self- control. In the same way it may be 'shown that crime is not madness or wholly even due to defective- ness, but that a vast proportion of criminals are normal beings who have taken to crime as a pro- fession, ^ and it is with such as these that we are chiefly concerned in the application of appropriate punishment, for defectives of all sorts have to be treated rather with a view to their infirmity than to their quantum of imputability, if any. Appreciation of what was then conceived to be the appropriateness of punishment is to be seen in the burning of heretics by the Church in early days. The idea held was, that such form of punishment was the only one by means of which effective purification would take place. Another example of the same attempt to fit punishment to crime is to be seen in the old law of Beam with reference to forgery. The forger had the forged instrument affixed to his head with tin-tacks, and was in that condition marched round the town and subsequently expelled. The 1 See p. 43, sup. ^Tarde, " Criminalite Comparee," Ed. ii. p. 138. Dr. Anderson, "Nineteeth Century" Feb. 1901. 1 68 PENAL SCIENCE adulterer too was hustled through the streets in a state of nudity, and likewise cast out from the scene of his iniquity. Bentham had a similar idea in mind when he proposed the punishment of perforating the tongue and affixing to it a liuge pen, in the case of those who had been guilty of serious deceit and false representation. Not so long ago in Denmark infanti- cide and bad instances of concealment of birth were punished with imprisonment, and a whipping once a year on the day the offence was committed. In yet older times, the penalty in Egypt for the same offence was the having to hold in the arms the dead child for three days,^ the idea of which was somewhat similar to the cutting off of an ofi'ending member.^ As Tarde well says, in this way authority attempts to oppose to such manifestations of crime as it dreads, obstacles of a kind similar to that which is their cause.^ That our present methods are not satisfactory, the statistics of most countries clearly shew. Garofalo says that the worst class of crime has made great progress throughout* civilized Europe during the past 80 years. In France in 1891 there were^ 95,233 recidi- vists, and but 508,255 offences in all reported by the ' Tarde, Griminaliti Compar^e, Ed. ii. p. 133. ' Of. the excuse for castration in the Code Napoleon, Sect. 325. 'Tarde, op. cit., p. 131. * Criminologie p. 230. ° Oompte General de la Justice Grim, p. xiv. PRISON REPORTS COMPARED 169 police. In 1889 out of a total of 13,075 convictions for serious offences, 11.6 per cent, were of recidivists.^ With us in the last report it seems that 107,724 men and 48,118 women went to gaol, of whom 48,699 men and 11,999 women had been there before.^ On the other hand a parliamentary paper recently issued* shews, that in the Metropolitan district out of 2,820 prisoners released and so not sent to prison at all under the provision of the Probation of First Offenders' Act, 1887, the number of reconvictions amounted only to 290. In Lancashire the numbers are respectively 3,741 and 372, in the West Eiding of Yorkshire 961 and 132, in Staffordshire 658 and 81 and in Durham 579 and 98. From these figures if only approximately correct it is a fair inference, that methods other than prison ones have here proved the more satisfactory. The compilers of the French statistics likewise speak of the good effect of La hi du 26 Mars 1891 sur le sursis conditionnel dont I'habile et salutaire cUmence rend la menace de I'emprisonnment plus efficace lien souvent que sont ex^cution.^ The result of this has been not only to reduce the number of recidivists but of first offenders, the latter from 126,857 in 1894 to 115,085 in 1887. The sursis h la relegation also seems 1 Code F^nitentiare for 1RS7, p. 58. ^ Pruon Commissioners' Reyort. 1900 p. 71. s Potily Chronicle, 14 Jan., 1901. 4 nacre xiv. lyo PENAL SCIENCE to have worked well, as even in 1890 it is spoken of in M. Herbette's Code Penitentiare as La mesure siutile de sursis} So too most humane persons wonld think who read the life history of prisoners like the following. B. 55 years suffered 54 convictions of in all 168 months' imprisonment, besides the time spent in gaol awaiting trial. Two convictions having been for theft he was sentenced to transportation. Being very ill when sentenced he was not transported, and died shortly afterwards. Or that, of 0. 57 years, a violent prisoner who soon after the age of 16 was convicted many times of outrages on the police and similar offences. At 24 he began to steal. After this he was frequently imprisoned for poaching, drunkenness, vaga- bondage, and assaulting the police. He has been con- victed 66 times, and has undergone 15 years of prison and 5 of transportation. ^ What but harm can their penal treatment have done both these individuals ? Perhaps then the position of the State towards the offender may be thus summarised. In dealing with him, not only he but those dependent upon him, as well as the offended person the public and those likely to offend in a similar way, have to be kept in view. His treatment should take a form likely to prove if not beneficial, at least not harmful to him or his wife and children, yet at the same time bene- ^ Code Fenit. vol. xiii. p. 48. * Code Flnit. vol. xiii. pp. 58 and 59. PRISON REPORTS COMPARED 171 ficial to the injured person and a useful object lesson to other probable offenders. The object of treatment, at least with reference to him and his congeners' future conduct, should be prophylactic and not simply therapeutic, and the position improved generally by better hygienic surroundings. The necessary characteristics of remedial treatment are, that it be as personal proportionate quick certain just and humane as may be. The exact form it takes should be made to depend upon the class of offender to be treated, as well as upon the nature of his offence. For example, whether he be a professional offender or not. His age, his temptation, his motive, and general circumstances have to be considered. The nature of the offence, that is whether a crime of violence or deceit aggravated or simple, or merely a venial con- travention of some municipal law, necessarily goes far to determine the form of the retribution to be demanded of the offender. The great thing to strive after is appropriateness. This is that the proper class and degree of retributive treatment be unfail- ingly meted out in each case. Fine imprisonment work in a penal colony life in a disciplinary regiment or ship, exile and loss of station are among the forms of practicable punishment. A crime of violence should be treated more sternly than one of deceit, because the class of offender who does such things is probably of a rougher and harder character temper^- 172 PENAL SCIENCE ment and type, than the mean thief who is gentle if cunning, timid if resourceful. The professional should be interned, when he has shewn himself unmistakably to be such, for the term of his natural life.^ No one should ever be sent to prison except as a last resource, and plenty of time should always be given for the payment of fines. Offenders when fined must be fined according to their means of paying. A man, especi- ally if married, won't as a rule run away to escape a fine which is not exorbitant. The fines should go mainly to the parties injured and not to the State, inasmuch as it is more fitting that the injured should get reparation, than that the fisc should gain by the commission of crime. A fine or a few days' imprison- ment is no appropriate manner of dealing with a drunkard, who ought to be made to work in an In- ebriates' home. Few realise and yet it is certainly true that if drunkards were dealt with thus, and adequate time given for the payment of all fines, our criminal population would be decreased by about one third. When all juvenile offenders fit for the army and navy are compulsorily enlisted, our prison popu- lation will be further considerably lessened. Penal colonies can be made more healthy and beneficial in • The object of the French law of 27 May, 1885, was avowedly " expulsion du continent les malfaoteurs d'habitude, c'est la le prin- cipe de la loi. Code P^n. Vol. XIII., p. 59. The idea being " chaque mefait qui a'ajoute multiplie le coeftoient moral de oriminalite." Code P&it. XIII., p. 410. PRISON REPORTS COMPARED 173 their action than prisons, especially prisons in towns, which should be kept for incurables who are unfit to work on the land. Let the renegade by all means continue in scarceness. It is fitting that he should not be comfortable until he has made reparation. But let his discomfort be such as he is able to bear, and his treatment likewise tolerable and moralizing in its character. Let all who know what it is be struck by its reasonableness and unerring precision, which latter will depreciate the force of crime as a competitor in the labour market. Then if the miser- able who require State aiding were eliminated from the list of offenders, it would be reduced to those who slip but occasionally from the proper course, and for these a happy issue from their present miserable state may be often confidently expected, when once they are taken in charge by an offended but discrim- inating Society, in which their rights and privileges are felt to be but temporarily suspended. In this way the appropriate measure of punishment would in each case be dealt out to the various classes who have been proved unable to adapt themselves to their environment, sufficiently that is to avoid outrag- ing the moral law. Such measure is more difficult to ascertain than the measure of damage in civil matters because more complex, affecting as it does so many different interests. It has nothing to do with Mr. Crackanthorpe's Standardisation of Punishment. Nor 174 PENAL SCIENCE is it similar to Sir E. Fry's somewhat Mosaic methods. Nor again does it group all offenders alike in a suit- able Moral Hospital, or in the Academic groves of a superfine Elmira. It tries to diff'erentiate and to deal appropriately with each class so differentiated, that thus the fitting measure of retributive justice may be arrived at, which is due in each case to the offender, the offended individual, and Society alike. And is not this more than is fully purposed' or even aimed at by most systems of Penal Science in present operation ? CHAPTEE XI STATISTICS FEENCH AND ENGLISH England and Wales, with a population on 31 March 1899 of 31,061,000, had 18,766 persons in Local and 2,723 in convict prisons, i.e., 13,987 males and 2,606 females, besides those on bail or in all 16,593 souls. This number although 463 less than for the previous year is about 1,850 in excess of that in 1892, when the number of English prisoners was the lowest ever known. In France the population is about 39 millions, while the average number of prisoners not transported and excluding those in Algeria was for the year 1898 33,096, of whom 4,814 were females. Of these about one quarter or 7,682 males and 1,372 females were sentenced to undergo long terms of punishment in France, five-eights to short terms and one third to lengthy reformatory treatment, while 62§ per cent, of the male prisoners had to suffer yet shorter periods of imprisonment, as had also 48J per cent of the woman. With us as has been seen convicts, who represent most nearly French long term prisoners, form about 20 per cent, of the entire 176 PENAL SCIENCE prison population. In England in the last year for which we have the figures, that which ends 31 March 1900, and in France for the year 1898 the report for which only appeared in 1900, it can readily he shewn what number of convicts and long term prisoners respectively (a) died, (b) were released on medical grounds, (c) became insane, (d) committed suicide and (e) were punished for prison offences both serious and slight respectively. (a) (b) (c) (d) (e) England.. . 32 6 24 2 12 andl206outof2723. France. . . 273 78 65 5 9 and 62.30 per cent. This percentage refers to the entire long term French prison population, and is made up of nearly 1,500 who were punished once 1,500 twice 1,500 three times and 3,000 upon four and more occasions, the average number of breaches of discipline being 3| a head. Among these long term prisoners besides lunatics there were 28 epileptics, and in addition to the suicides there is recorded one attempt. In 1898 of French short term prisoners about 303 died, 585 became insane and 328 were epileptic and 17 committed suicide, while 32 were found guilty by the Courts of serious prison ofifences. There occurred besides 40,000 minor infractions of duty committed during detention by this same class of prisoner. As the number of those in French Maisons Centrales and Colonies Agricoles to whom the foregoing figures refer STATISTICS FRENCH AND ENGLISH 177 is about 3| times that of English convicts, we find that in 1898 in France and in 1900 in England respectively nearly three times as many prisoners in proportion died in French as in English jails. That all but seven times as many French as English became insane. Also that something like 1\ times as many committed suicide, and more than nine times as many got punished for serious prison offences with them as with us. Nevertheless such offences in France are tried in open court and ours dealt with by prison visitors and frequently result in a flogging, a punishment long since done away with in France even in the case of Juvenile Offenders. On the other hand one third only of French prisoners totally escaped prison punishment,^ while W ths was about the proportion with us. The total number of convicts that passed through the five Convict prisons, Borstal Alyesbury (women) Parkhurst Port- land and Dartmoor, in the year before referred to was about 4,937, and of prisoners who underwent long term sentences in France during 1898 some 9,655. Of the fresh entries for the year under com- parison about 35 per cent, had already undergone penal servitude, while 69 per cent, of French prisoners had been previously convicted. Out of these in France 12 escaped and eight attempted to do so. Tor the French figures, see Statistique Pinit. Melun, Imp., adm. 1901. Besides the above, 102 7 were transported. 178 PENAL SCIENCE "With us there were in all 6 escapes and attempted escapes. In the English Eeport^ we are told that the net cost, exclusive of buildings and establishment charges in respect of convicts, was £118,465 16s. 5d. for a daily average of 2,716,^ being about two shillings and fivepence a head a day. The average cost in France over and above the value of the work done was in Departmental prisons where it is farmed out from fourpence halfpenny to eightpence a head a day, not reckoning apparently the cost of the upkeep of each establishment. We are not told the estimated cost in the Maisons Centrales, the labour manager of which is the State. In Prance a long term prisoner gets about 4J per cent, gratification on the value of his labour, which is ninepence a day all round, or one shilling for each actual working day, the number of the latter being about 76 per cent, of the entire year. Some 87 per cent, of long term prisoners received for themselves in 1898 between two-fifths and a half of the product of their work. We are told in our report that the English convict earns £24 16s. 7d. each year, though we do not learn upon what data this estimate is based, out of which a gratuity (we are not told how much) is granted to each prisoner on discharge, which may be handed to a Prisoners' ' BepoH p. 99. ^Id, p. 65. STATISTICS FRENCH AND ENGLISH 179 Aid Society for his benefit/ while he costs the country £25 Is. 3d. all told.^ Another matter of interest for the purpose of com- parison is the relative length of sojourn in prison of the English convict, and of the French inhabitant of a Maison Centrale or Pe'nitencier Agricole. In the latter case the male population to the extent of about 36 per cent, is in its first, and 27 per cent, in its second 15| in its third 8| in its fourth 6 per cent, in its fifth, and the remainder (about 7 per cent.) with five or more years of captivity still to get through. The women to the proportion of 27 per cent, are in their first, to 25 per cent, in their second to 12 in their third to 9 in their fourth to 8 in their fifth year, and to 17 per cent, are with a longer period of im- prisonment to serve. In England the average length of sentence of convicts received into Convict and Local Prisons under fresh sentences during the year under comparison, was about five years for males and six for females. One or two preliminary observations must almost of necessity precede any useful attempt to compare the results of the administrative care and attention devoted to the 15 French Maisons Centrales de Force et de correction and the Corsican F^nitenciers Agricoles, with that bestowed upon our own five Convict Prisons, 1 Comid Prison Rules 1899, No. 15. "Seport p. 95. i8o PENAL SCIENCE their respective circumstances and the material with which they have to deal being so different. But broadly speaking in English convict prisons work is out door in associated gangs, while in the Maison Centrale the system is more Uke that in our local prisons. In cellular prisons used only for short term prisoners, nothing is more melancholy than to see even in their Church each prisoner in his separate box, unable to look at his fellows or indeed at any- thing but the altar and the officiating priest. The perpetual wearing of the hood to prevent him from seeing the face of his fellow man, and the opening of his window only to the heaven above and concealing the beauteous earth beneath, destroy any residuum of social instincts which few forms of Institution life make sufficient effort to foster, although the desire for the companionship of our kind is a craving as urgent if not so immediate as the desire for food. And yet just as bodily health suffers when the individual is deprived of food, so the mental health suffers when he is " deprived of companionship. "^ The black board and chalk in his cell which the unhappy inmate is encouraged to use, the reading to prisoners by officials, the improvement in the libraries of much older date than with us, along with the far greater measures of clemency, the advantages of all of which are insisted ' Meroier, Sanity and Irisaniti/, p. 276. STATISTICS FRENCH AND ENGLISH i8i upon in the Code des Prisons^ do not make up for the appalling solitude of the Prison Oellulaire. The one quarter reduction of sentence granted to those who elect to be there interned, by no means compensates for its extra severity, as no old hand but only " new chums " elect to go there. If French terms of im- prisonment are relatively longer than ours, the food is somewhat better and work not as hard, gratuities greater and corporal punishment non-existent. With us man sees and often works with his fellow man, and under the new regime can talk to him as a re- ward for good conduct.^ Difficult as this permission makes it for officials and liable as it is to abuse, we have here no doubt made a move in the right direction, as also in the permission to have photo- graphs of relations in the cell and to keep in touch with home by writing more frequently and receiving more visits, which latter privileges are capable of still further extension. It is interesting, as shewing the new spirit that moves the authorities in the two countries now under comparison, to see the recommendation, sent from headquarters to the Governors of prisons in France during the year 1898. These are to remind them that every prisoner must be taken before a magistrate within twenty-four hours after reception. That a ' 1874, p. 2, p. 15, pp. 21, 22. = Convict Prison Rules, 189£, Rules 70. Cf. BepoH, 1900, p. 12. 1 82 PENAL SCIENCE return of boys under thirteen and not under twelve as theretofore is to be made. That juveniles are not to go in prison conveyances to reformatories but under proper escort, and to be made neat and clean before being sent there. That their diet is never to be reduced by way of punishment. Nor are run- aways on recapture to have their hair cut in a ridiculous way, or be dressed after a fashion to hurt their feelings, or to be handcuffed or made to take too long walks.^ All this clearly shows most humane intentions, as will be seen from a circular of 3rd December, 1898 from M. Jules Legrand the Under Secretary of State to the Prefects of the various departments, which contains the following clause: " Those in charge of reformatories are to remember that children committed to their charge are by origin and education morally and physically weak, and that the object of their being placed under super- vision by the law is, that they may be improved in both respects (^redressSs et fortifies). In no case must punishment be detrimental to their health or personal dignity." In the Maisons Centrales for men as has been said, in the year 1898 more than eighty-seven per cent, received from four to five tenths of the product of their labour, while the women got to the extent of ninety-two per cent, of their number from three to 1 Code P^mt. 1899, pp. 369-398. STATISTICS FRENCH AND ENGLISH 183 five tenths of their earnings, which is a still better record than for the year 1881.^ In 1898 more than two per cent, of long term French prisoners were wholly and twenty per cent, of the men and thirty of the women conditionally pardoned, while in 1881, 361 mesures de cUmence were accorded among about 15,500 prisoners.^ There can be found in the whole official literature on prison life nothing more ex- haustive than the Espos/ General of M. Herbette the Head of the French Prisons on the occasion of the Prison Exhibition of 1889.^ To it those who want further information and details are referred for exact particulars. Like M. Henri Joli's books on Crime it goes to the root of the matter in France, and is the work of officials who have got to the bottom of that with which they have been occupied, and who have the courage of their opinions thereon. And yet notwithstanding all this intended human- ity and moralization, prisoners die to so alarming an extent that numbers seem to be released on medical grounds and others pardoned, that so they may be prevented from swelling the list of prison casualties ! It would seem then that both in France and in England much remains to be done for prisoners. And this it is conceived to be the duty of public iQode Penit. 1884, p. 78 to p. 83. " As to the objections to pardous, See Garofalo La Crim. p. 399. 'Code Pdnit. Vol. XIII (1890) p. 249 to p. 431. 1 84 PENAL SCIENCE opinion to impress upon the Official Mind, the Con- servatism of which is too often unduly great. But progress is being made, as has been shewn, even in the application of the truths of Penal Science to prison management. And it will continue to be made, for Magna est Veritas et prdevalebif, a maxim which should cheer the prison reformer of to-day, whenever he feels inclined to think that he has perhaps merely been crying in the wilderness. As Howard and Eomilly succeeded so will he, though perhaps not " until after many days." CHAPTEE XII STATISTICS FRENCH AND ENGLISH— Cow