itMirri&iriw' {ortB Bu?' CORNELL UNIVERSITY LIBRARY BOUGHT WITH THE INCOME OF THE SAGE ENDOWMENT FUND GIVEN IN 1891 BY HENRY WILLIAMS SAGE HV8665 .wVT "S'lr"" '■'""^ ''""iniiiKI'l.fl,!!'* feformatlon: olin 3 1924 030 331 445 DATE DUE ' • . ) j( *■[« •■rfi' -^ y airtv 1 ^ ••n "fir' n f <■ 2' rr MV~- *! rfcg-jTt II — -85-«0.«^ '''4s«!' II^M -gfUm OCT 1 1 ?noo J-bH"""!*"^* WW^' OAYLOHD PHINTEDINU.S.A. Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030331445 PUNISHMENT AND REFORMATION A Study of the Penitentiary System BY FREDERICK HOWARD WINES, LL.D. NEW EDITION REVISED AND ENLARGED by WINTHROP D. LANE OP THB "survey" staff NEW YORK THOMAS Y. CROWELL COMPANY PUBLISHERS I 4 J A4(o\-i-|Cj Copyright, 1895 and 1910, By Thomas Y. Crowell & Co. Copyright, 1919, By THOMAS Y. CROVTOLL COMPANY I ■ I CONTENTS CHAPTER PAGE I. The Question Stated 1 II. What is Crime? 11 III. Retribution for Crime 26 IV. Early Judicial Procedure 43 V. Intimidation and Torture 49 Capital Punishment SO Secondary Punishments 71 Torture 88 The Inquisition 95 VI. Dawn of the Reaction 104 VII. The Reformation of the Criminal 121 ^ VIII. The Pennsylvania and Auburn Systems . . 133 IX. Transportation and the Penitentiary System . 168 X. The Elmira System 199 *' XI. Criminal Anthropology 235 XII. The Study of the Individual Delinquent . . . 265 I. Diagnosis 265 II. Mental Factors and Delinquency .... 287 XIII. Treatment .312 Treatment Before Confinement 314 Treatment During Confinement 324 Treatment After Release 353 iii iv CONTENTS CHAPTER PAGE XIV. Inmate Self-Govern ment 364 I. The Theory of Inmate Self-Government . 364 II. Early Experiments 375 III. Self-Government in California 384 IV. New York and Sing Sing 393 V. Self-Government and the Honor System. . 411 XV. Further Causes and Prevention 413 I. Some Remarks on Environmental Factors . 413 II. Prevention 420 Fundamental Social Forces: The Home . 422 Fundamental Social Forces: The School . 426 Fundamental Social Forces : The Church . 435 Fundamental Social Forces : Community Recreational Life 438 Prohibition 442 Eugenics 443 General Education 459 III. The Future 462 APPENDIX 465 INDEX 467 REVISER'S PREFACE To revise another man's book is like taking his place before a half-finished portrait at the easel, or wresting the conductor's wand from his hand while the orchestra is still playing the andante. In each instance, the interloper is likely to be the only person who gets any enjoyment from the change. A book that deals chiefly with facts and deductions from facts, however, like the present one, lends itself more readily to posthumous mutilation of this kind than does, say, a volume of poems or the diary of a man's life. One hardly cares to have another person voice his joy at the stars or the sunrise, or dress up an account of his life to suit himself. Facts, however, are impersonal and may be rearranged and added to with impunity. There are two ways of revising a book. One is to begin at the first page and go through to the last, meticulously scanning each sentence, toning down a generalization here, enlarging one there, and adding footnotes wherever the spirit moves and new infor- mation warrants. This may be called the mosaic, or crazy-quilt method. The other is to omit from the > original in chunks whatever is unessential or out of date, and then at the end to pile the Ossa of new material upon the Pelion of old. This may be called the Procrustean method. vi REVISER'S PREFACE A logical reason seemed to exist for the use of the second method in the present revision. Since Dr. Wines revised his own book in 1910, remarkable developments have occurred in both the science of criminology and the treatment of law-breakers. These required, not revision of the text as it stood, but supplemental setting forth. Among them is the closer view that has been obtained of the causal factors of crime by the study of individual offenders. To-day we are far less helpless than a decade ago in answer- ing the question: Who are the criminals? Another development is the new light thrown by this same study upon treatment, and what penal Institutions have done to respond to this light. A , third is the spread of inmate self-government and the growth of the honor system, and a fourth is Goring's monu- mental inquiry into the existence of an anthropological criminal type, which was begun in 1902 and came to a close in 1913, so that its results were not available for publication when Dr. Wines wrote. Each of these subjects has been discussed in the present volume. The historical chapters of the 1910 edition, namely, the first eleven, have been retained in this. The revision begins with the second part of Chapter XI, on Criminal Anthropology. Four chapters were discarded, one on the causes of crime, one on the theory of punishment, one on the preven- tion of crime and one on the outlook for the future. Two papers comprising an Appendix were also dropped. The thanks both of the reviser and the reader are due, first, to Dr. William Healy, at present director REVISER'S PREFACE vii of the Judge Baker Foundation in Boston, whose reading of much of the manuscript of the new chap- ters yielded invaluable suggestions. Thanks are due also to Mr. George W. Kirchwey and Mr. Calvin Derrick for very generous assistance. WiNTHROP D. Lane New York City, December 27, 1918. PREFACE TO FIRST EDITION This book must be taken for what it is, not for what is does not claim to be. It does not pretend to be either original or exhaustive. The author was requested to deliver a course of lectures, in 1893, before the students of the State University of Winconsin, which were given extempo- raneously ; but afterward written, to be read, in Janu- ary, 1895, before the Lowell Institute in Boston. They have been rewritten for publication, in the hope that they may prove not only instructive but interesting. A great frivolous interest in crime is demonstrated by the attention paid to it in the daily journals; why not hope that a serious interest may also be taken in suggestions for its suppression? This is not a book on prisons, much less on the organization and government of prisons. It is rather designed to be an aid to legislation and to the forma- tion of a correct public opinion, which must in the end control legislation. Its aim is to give to the ordinary reader a clear and connected view of the change in the attitude of the law toward crime and criminals, during the century now drawing to its close, and of the honorable part which the United States has borne in the movement for a better recognition of the rights even of convicted criminals. Looking ix X PREFACE TO FIRST EDITION to the future, the watchword should be: nulla vestigia retrorsum. The authority for each statement in the text is not given in footnotes, because of the great number of citations that would be necessary, and the consequent fatigue to the reader. The principal authorities con- sulted are: — "A History of the Criminal Law of En- gland," by Sir James Stephen; "History of Crime in England," by Owen Pike; "Chronicles of Newgate," by Arthur Griffiths ; "The State of Prisons in England and Wales," by John Howard; "The Punishment and Prevention of Crime," by Colonel Sir Edmund F. DuCane ; "Crime and its Causes," by William Douglas Morrison; "The Criminal," by Havelock Ellis; "Stra- fensystem und Gefangnisswesen in England," von Doctor. P. F. Aschrott; "Lesebuch der Gefangniss- kunde und Berticksichtigung der Kriminalstatistik und Kriminalpolitik," von K. Krohne; "Handbuch des Gefangnisswesens" (by various authors, but edited by Doctor Franz von Holtzendorff and Doctor Eugen von Jagemann) ; "Esprit des Lois," par Montesquieu ; "Beccaria et le droit penal," par M. Cesar Cantu; "Memoire sur les moyens de corriger les malfaiteurs et les faineants," par Ch. Hippolyte Vilain XIIII. ; "Histoire de la legislation," par M. le Comte de Pastoret; "Dictionnaire de la penalite dans toutes les parties du monde connu," par M. B. Saint-Edme; "Les prisons de I'Europe," par MM. Alboize et A. Martino Beltrani-Scalia, and many more. It is im- tophe; "Du droit de punir," par Emile de Girardin; "Question des peines," par E. H. Michaux; "Sul governo e suUa riforma delle carccri in Italia," di PREFACE TO FIRST EDITION xi Martino Beltrani-Scalia, and many more. It is im- possible to mention by name the books, reports, docu- ments, pamphlets, and journals which the author has read or examined, during the quarter of a century in which this subject has claimed more or less of his attention. Much of his acquaintance with it is de- rived, not from books, but from personal contact with prisons and prisoners. The books here named are histories or contain historical material; books on the theory of punishment have been omitted, also books by American authors. PUNISHMENT AND REFORMATION CHAPTER I THE QUESTION STATED Of all the perplexing questions which confront the statesman and the publicist, probably the most difficult of solution is that which relates to the proper treatment of crime and criminals. This is true, whether the ques- tion is approached from its theoretical or its practical side. An enlightened criminal jurisprudence must rest upon principles which command the sanction of science and the approval of absolute justice; but these prin- ciples are not easy to find or to formulate. In practice it must satisfy certain obvious experimental tests. Does it insure the public peace and security, by reduc- ing the volume of crime and the number of known, habitual offenders? Does it accomplish this result with due regard to the rights and interests of con- victed criminals, as well as of the community which it seeks to protect? In other words, does it attain the maximum of efficiency without degenerating into op- pression, and with the least possible infliction of pain or loss? For a correct reply to these inquiries, patient his- torical research and exact statistical knowledge are 1 2 PUNISHMENT AND REFORMATION essential. Criminal law has been slowly and painfully evolved from human consciousness, in response to the varying historical exigencies of the race. The time has arrived when it must be judged by a higher criti- cism, which needs to be not merely retrospective and philosophical, but ethical and practical. Through what evolutionary stages has criminal jurisprudence already passed? What are its present tendencies? Are these tendencies such as to commend themselves to the ethical, political, and legal sense of mankind, in an advanced state of Christian civilization? The law is itself upon trial. A mass of evidence has been here accumulated, which must have an influence upon the verdict to be rendered by those who do the present volume the compliment to read it. Our subject may be defined as the treatment of crime, for its repression and prevention ; and of crimi- nals, for their extirpation or rehabilitation; both in the past and in the present, with special reference to improved methods of treatment in the future. To this science, if it is a science, Francis Lieber has given the name of "penology," often confounded by typesetters in printing-offices with phrenology, to which it bears no relation. The term is an awkward one, as most technical terms are apt to be. Prison discipline, which the word is meant to include, is an art, rather than a science ; but the termination of the word does not sug- gest any practical application of science. The Germans call this branch of human knowledge, from the scien- tific point of view, Gefangnisswesen; from that of art, Gefdngnisskunde. In French, it is la science peniten~ tiaire; the mercurial Gauls have borrowed a phrase THE QUESTION STATED 3 from the' sedate Quakers of the commonwealth of William Pemi. Call it what we may, the theme which now engages our attention is remote from the ordinary experience, and to many it is repulsive. Rightly regarded, how- ever, it is as interesting as it is important. If any apology is required for its presentation, it may be found in the following quotation from Victor Hugo ; — "The study of social infirmities and deformities, with a view to their cure, is a sacred duty. The mission of the historian of ideas and of morals is not less obligatory than that of the chron- icler of events. The latter skims the surface of civilization. He registers royal marriages; the birth of princes, quarrels between kings, battles, convocations, the achievements of men illustrious for their public services, political revolutions. He describes the external aspect of events. But it is a deeper and more arduous task to penetrate beneath the surface; to lay bare the foundations on which the social structure has been reared; to tell of those who labor, who suffer, and who wait — of womanhood staggering under burdens too heavy to be borne; of childhood in its young agony; of the silent secret conflicts which alienate men from their kind ; of the obscure ferocities, the prejudices, the intrenched injustice, the subterranean reactions of law; of the hidden evolu- tion of souls; of the formless shuddering of the masses of the starved, the half-clad, the disinherited, the fatherless, the unfor- tunate, and the infamous; of all the hobgoblins that wander in the dark. He who would lay bare the mysterious springs of human actions must descend — with a heart full at once of charity and of severity, as a brother and as a judge — into those impene- trable casemates where crawl in confusion those who bleed and those who strike, those who weep and those who curse, those who fast and those who devour, the wronged and their oppressors. Have these historians of the heart duties inferior to those which ara laid upon the historians of the world's exterior life? Has Dante less to say than Machiavelli? Is the under-world of civilization, because it is deeper and more gloomy, less real and important than the upper? Can we know the mountain, if we know nothing of the caverns?" 4 PUNISHMENT AND REFORMATION The limits of penology are incapable of exact defini- tion. It embraces portions of criminal jurisprudence. It covers everything which relates to prisons and prison discipline. It includes certain aspects of the work of the police, and of the institutional and other agencies by which preventive work is carried on in behalf of chil- dren and youth. It has points of contact with nearly every science and art which it is possible to name. It is related to medicine, through the connection which sub- sists between crime and insanity, and the necessity for a sound prison hygiene. The problem of criminal heredity creates a close affiliation between penology and biology. It is an essential and important branch of law, but it is no less intimately connected with government in the wide sense, or with politics re- garded from the point of view of the statesman. It enters into the domain of philosophy and of religion. It has its ethical side. Prison discipline is, as we shall see, largely a question of pedagogics. The causes of crime require for their elucidation an adequate knowl- edge of political economy and of general sociological conditions. To demonstrate their operation the aid of statistics must be invoked; an art of extreme nicety and precision. The comparative study of crime im- plies familiarity with geography, anthropology, and history. The practical administration of prisons de- mands some acquaintance with architecture and engi- neering, with agriculture, with mechanics and manu- factures, with trade and finance, and a deep insight into human nature, joined to experience in the govern- ment of men and natural aptitude for it. A competent warden needs to be thoroughly grounded in psychology, THE QUESTION STATED 5 In short, all knowledge which has man for Its subject or object, and especially all philosophical inquiries which aim to explain human activity, individual or social, in its origin or in its outcome, lead up to the prison question. It is one of many doors through which one may enter the palace of Minerva. There is no social question at once so profound and so far- reaching, unless it be the labor question, with which the prison question is closely and vitally united. There are two principal methods by which it may be studied — the philosophical and the historical. These are, however, so blended in practice as to be almost indistinguishable, except when the scalpel of the technical analyst divides them from each other upon the dissecting table in the chamber of speculative science, which is the chamber of death. The ideas and conduct of men are in life so inextricably interwoven, that the historic and the philosophic or logical order, in their parallel evolution, during the slow progress of the race from barbarism to civilization, are sub- stantially the same. History needs to be read in the light of philosophy, and philosophy in the light of history, if we would form a distinct mental image of either — an image which will correspond to the real, and afford a clue to the ideal. The author of this book will have succeeded in his aim, if on every page he succeeds in attaching to a historical fact, which is a picture, an explanatory legend in the form of a philosophical conclusion, and if he can induce the reader to turn from one to the other and back again in quick succession. ^ A brief outline of the scope and order of the topics 6 PUNISHMENT AND REFORMATION included in the plan of the present volume will be an aid to the comprehension of the argument. Two principal questions demand our attention: What is crime? and. What is the criminal? The notion of crime is not a fixed, but a variable, notion, growing out of local and temporary conditions, sub- ject to perpetual modification in accordance with the political and religious conceptions peculiar to a given community in a given age. The criminal is the con- crete expression of the abstract idea of crime. In his relations to the past, he is a product of antecedent causes, partly individual and partly social. In his re- lations to the present, he is an anti-social and disturb- ing element, a protest against existing social conditions and regulations, a menace to the public peace and safety, and in a greater or less degree a public enemy. In his relations to the future, he is a problem, whether soluble or insoluble, the future- alone can determine. These questions are separable only in thought. Since crime exists and can exist only in the criminal, the treatment of crime and that of the criminal are merely two phases of one and the same problem. Logically, however, the mind deals first with the question of the suppression of crime, then with the fate of the crimi- nal, and his conversion or extirpation. This is also the historical order. It is only of late that the fate of the criminal himself has attracted public notice and interest. There have been four distinct stages in the evolution of criminal law. The first was the era of vengeance, or retribution; the second, that of repression; the third, that of attempted reformation and rehabilitation ; the THE QUESTION STATED . 7 fourth, of which we see as yet but the early dawn, is that of prevention. We shall see, as we proceed, how these must have followed each other in the precise order here indicated. It is of absorbing interest to trace the successive steps by which each of these conceptions of the func- tion of criminal legislation has faded into that which immediately replaced it. The lex talionis was the original and barbarous foundation of the penal code. Retaliation, at first a private right, became, in the lapse of time, a public duty. The penalty of death, once the usual and all but universal form of vengeance, could be avoided by pecuniary compensation; and when the primitive State took into its own hands the regulation of such composition, the foundation of a true criminal jurisprudence was laid. The State and the Church then took upon themselves the task of sup- pressing crime by measures of severity, designed to intimidate would-be criminals by the terrors of torture, in all its hideous forms. This conception held human- ity in its unrelenting grasp, not for centuries, but for thousands of years. Judicial and ecclesiastical murders were for ages regarded as the essential safeguard of social order and private security. Banishment was in- vented as a humane substitute for capital, punishment. Prisons were merely places in which the accused awaited trial, or the condemned awaited execution. Beccaria gave the final blow which resulted in the over- throw of torture, and his influence is largely responsi- ble for the gradual disuse and partial abolition of the death penalty. John Howard pointed out how irriprisonment might 8 PUNISHMENT- AND REFORMATION itself be made a legal penalty, and at the same time a means of reformation of law-breakers. These two re- formers were contemporaries. The entire movement for the amendment of the criminal law, and for the reform of prisons, is vitally connected with the growth of democratic ideas and institutions. It may almost be said to date from the American and the French Revolutions. It was greatly, and on the whole favor- ably, influenced by the discovery of Australia, and by the English experiments tried on that distant soil, under the system of transportation, which lasted for eighty years, before its failure was formally acknowl- edged. With the general acceptance throughout Christendom of imprisonment as practically the only secondary punishment, the criminal has become an object of attentive scientific study. The attempt to reform him has led to the invention of three systems of prison discipline: the Pennsylvania, the Auburn, and the Elmira. Penologists are divided into three camps, as they favor one or the other of these systems. The incomplete success of either has led many to doubt the efficiency of all methods which may be adopted for the renovation of the criminal character and impulses. Their persistence has led to new studies of the criminal, in his heredity and in his biological development, which have taken the name of crimi- nology or criminal anthropology. But all are agreed that the principal hope of any material reduction in the volume of crime lies in its prevention, rather than in its cure. Society now seeks a better knowledge and more effectual enforcement of the laws of moral hygiene. THE QUESTION STATED 9 This record of slow but certain progress is the history of a movement in which the history of the human race is hidden at the core. It is the history of the steps by which the bonds of submission to ex- ternal authority, indispensable in the infancy of the race, but always liable to become arbitrary and des- potic, have gradually been relaxed, as mankind has learned the lesson of self-control. It is a history which contains and is the embodiment of a prophecy. But the current of events has not flowed steadily on- ward without interruption. It has been a raging stream, dashing against rocky barriers, which have thrown it back upon itself; it has been filled with eddies and counter-currents. In the conflict with crime, society may be compared to a blind giant, deal- ing furious blows at an imseen but ever-present and irritating foe, sometimes hitting the mark, but, alas, too often missing it. One central, dominating idea has characterized the entire movement, namely, that the world can only be rid of crime by ridding itself of the criminal; whether by killing him, sending him into exile, shutting him up in prison, intimidating and disabling him, or re- forming him. The surest of all plans would be to stop the manufacture of criminals. This is the latest development of the war against crime. The modern police system is of more recent date than prison re- form. Police surveillance of discharged convicts has been followed by suspension of sentence and surveil- lance without commitment to prison. Our institutions for the reformation of juvenile transgressors are an addition to the prison system, intended in large measure 10 PUNISHMENT AND REFORMATION to supersede it. The principles and methods on which they are conducted have just begun to affect sensibly the organization and discipline of prisons for adults; they have given birth to the new reformatories for adult first offenders. They are largely supplemented by purely preventive institutions for young children of both sexes, who are thus rescued from an environment favorable to the growth of criminal character. Still more recently, the best authorities on child- saving tend to dispense, as far as possible, with all institution life for children, and to place them directly in private families, where they will receive the benefit of a home, and their surroundings will be more nearly assimilated to those of other children. If the centuries before Christ and the first eighteen centuries of the Christian era furnish the dark back- ground, against which the beauty that resides in the salvation of the lost and the rescue of the perishing stands more sharply revealed, on the other hand it may be said that the benevolent work of the nineteenth century, throughout the world, is the outward and visible reaction against the barbarity and brutality which, before this century opened, everywhere charac- terized the administration of the criminal law. The flower of Christian charity has sprung up and blos- somed from roots which struck deep into what seemed to be the most unpromising of soils, but which has been enriched by the blood of numberless victims, and watered by the tears of the pitiful. CHAPTER II WHAT IS CRIME? Crime needs to be sharply discriminated from vice on the one hand, and from sin on the other. Vices are injuries done to oneself, through the violation of nat- ural law, which affect others only indirectly, if at all. Intemperance is a vice ; so is sloth, so is improvidence. Sins are offences against God, whose commandments extend beyond outward acts and reach down into the region of unuttered thoughts and unfulfilled desires, of which human legislation can rightfully take no cogni- zance. Crimes are wrongful actions, violations of the rights of other men, injuries done to individuals or to society, against which there is a legal prohibition en- forced by some appropriate legal penalty. The distinction just made is real, but these categories of wrong-doing are not necessarily mutually exclusive. There are Jfices and crimes which are also sins. And any vice or sin becomes a crime when it is declared to be punishable by human law. Again, actions or omissions contrary to equity, for which the legal remedies are merely civil, and consist in restitution, with or without damages, must be dis- criminated from actions or omissions in which the disregard shown for the rights of others is so palpably immoral and anti-social as to call for the infliction of 11 12 PUNISHMENT AND REFORMATION some degree of criminal punishment, either by depriva- tion of life, liberty, or property. Only the latter fall within the strict definition of crimes in the technical phraseology of the law; the former are torts. Sir James Stephen says: — "The criminal law is that part of the law which relates to the definition and punishment of acts or omissions which are pun- ished as being — (1) Attaclcs upon public order, internal or external; or (2) Abuses and obstructions of public authority; or (3) Acts injurious to the public in general; or (4) Attacks upon the persons of individuals, or upon rights annexed to their persons ; or (5) Attacks upon the property of individuals, or upon rights connected with and similar to rights of property." To this succinct description of the criminal law he adds: — "The conditions of criminality consist partly of positive con- ditions, some of which enter more or less into the definition of nearly all offences; the most important being malice, fraud, negligence, knowledge, intention, will. There are also negative conditions or exceptions tacitly assumed in all definitions of crimes, which may be described collectively as matter of excuse." Crimes are distinguished as felonies or misde- meanors. By the common law of England, felonies were punishable with death. In the penal codes of the United States, the distinction between a felony and a misdemeanor is mainly statutory, and has lost its original significance. The graver offences are felonies. Felonies are punishable by death or imprisonment in a state prison or penitentiary for a term of years ; an offence thus punishable is a felony. Misdemeanors are punishable in a minor prison for a term of months WHAT IS CRIME? 13 or days ; an offence thus punishable is a misdemeanor. A finer example of reasoning in a circle cannot well be imagined. The distinction is purely artificial and arbitrary. The French criminal code makes a somewhat similar and equally irrational, but still more complicated, sub- division of crimes into three grades: (1) Contraven- tions; (2) delicts; (3) crimes. Contraventions are violations of police regulations. The penalties for delicts are correctional; for crimes they are afflictive or infamous, or both. For the -purposes of this argument, the one impor- tant fact to understand and remember is that nothing is a crime which the law does not so regard and punish. Paul, who was as learned in the law as he was indefati- gable in his missionary zeal, quaintly expresses this truth, in saying to the Romans: "Without the law, sin is dead. For I was alive without the law once ; but when the commandment came, sin revived, and I died." The origin of law is shrouded in the mists of an- tiquity. There must have been a time when there was no law, in the sense of legal enactment, for mankind, any more than there is for the brute creation. The passions of men exploded at the touch of conscious wrong, as a dog snarls and bites when another dog attempts to take away the bone which he is crunching under his teeth. No other raiode of self-defence was known or practicable. There was a time when the idea of the State was foreign to human thought. Before the organization of the State, all wrongs fell into the category of torts, that is, purely civil injuries, or of 14 PUNISHMENT AND REFORMATION sins, that is, insults to the majesty of the gods. Crimes are acts of disobedience to the State. Where there is no State, there can be no crime. The sense of wrong must have preceded the sense of right in the individual and common consciousness. We now look upon wrong as the negation of right ; but it seems probable that to the primitive man wrong was something positive, . and that the notion of rights was slowly evolved, through the instinctive opposition felt to successive and repeated injuries. In Sir Henry Maine's opinion, "It is hazardous to pronounce that the childhood of nations is always a period of un- governed violence." Nevertheless, the natural state of' man without law is one of private and tribal war. Where there is no conflict, no struggle for existence, there is no life. Law in an attempt to regulate this struggle among men upon equitable principles and in the interest of the greatest number. In the primeval state of mankind the struggle was unregulated. The sole measure of the atrocity of an injury was the de- gree of the passionate reaction which it aroused. Self- defence and the redress of injuries were the affair of the individuals directly affected. The steps by which private war was abolished, crimes legally defined, and their punishment relegated to the judiciary will be recounted in a subsequent chapter. The definition of crimes has varied from age to age, especially in different states or nations. Offences which are punishable by law may or may not be con- trary to morals. Much confusion of thought has been occasioned by the failure to recognize this double sense of the word crime. A corresponding uncertainty at- WHAT IS CRIME? IS taches to the meaning of the word criminal in the mouth of any one not a lawyer. Among the crimes of a superstitious age, offences against the prevailing religion occupied a prominent place. The ecclesiastical spirit finds its freest scope among the ignorant; and with savages, the priest is everywhere a personage of consequence, clothed with supernatural power and endued with authority derived directly from the gods. He bows before none but the king, and not always before him. The relation of the priesthood to the throne, whether in a theocracy or in a modern State, where the king is supposed to rule by divine right, and the right to reign is conferred with appropriate ceremonies by the Church, is such as un- duly to exalt the ecclesiastical authority. If political power in civil government is derived from the consent of any ecclesiastical prince or hierarchy, then the right of the Church to define and to punish ecclesiastical offences, either by its own courts or by those of the civil power, cannot logically be denied. The Church has always claimed this right, and where the separa- tion between Church and State is not absolute and com- plete, it must be conceded. The common ecclesiastical offences are heresy, sacrilege, sorcery, witchcraft and enchantments, blasphemy, perjury, and Sabbath-break- ing. Everywhere the heretic is one who differs in opinion from the religious party in power. Heresy in one place is orthodoxy in another, and the definition of orthodoxy changes with every alteration in popular beliefs. The Egyptians punished with death any one who should reveal the burial-place of the sacred bull. Apis, or who should even by accident cause the death 16 PUNISHMENT AND REFORMATION of a vulture, a cat, or an ichneumon. At Athens sen- tence of banishment from Attica was pronounced against the profane individual who should pluck a leaf from the trees consecrated to Minerva. It was there regarded as sacrilege to kill a bird consecrated to Escu- lapius. The early Christians were thrown to wild beasts, crucified, and burned alive by the Roman em- perors. In the Middle Ages, the Catholic church perse- cuted Protestants with fire and sword. The Protes- tants made similar abuse of power when fortune had placed it in their hands. Even the Puritans of Massa- chusetts banished Roger Williams, though he was him- self a Puritan. The ecclesiastical courts of England, until the year 1640, had the right to punish offences against religion and morals ; in other words, to punish sin as such, particularly offences arising out of the relation of sex, including every form of incontinence. This right still exists as to incest, which is not a secular crime by English law. The Court of High Commis- sion, which was a sort of Protestant Inquisition, was authorized to enforce ecclesiastical conformity upon all persons, lay or clerical. The decrees of the ecclesias- tical courts were enforced by excommunication and penance. The greater excommunication entailed a variety' of civil incapacities: an excommunicated per- son could not sue, nor testify as a witness, nor come into the possession of an inheritance. They also had power to impose heavy fines, and to commit offenders to prison, though not to inflict torture or the penalty of death. The list of obsolete crimes is a long one. Possibly the most illustrious is that of lese-majeety. Laesa WHAT IS CRIME? 17 , majestas, under the Roman law, included pretty much every form of derogation from the dignity of the Em- peror, or, in the days of the RepubHc, of the people. By the law of the Twelve Tables, it was punished by flogging to death. In England a law of Henry VIII. pronounced any one guilty of this offence who should predict the death of the king; and, the prince having been seized with an illness, his physicians dared not say that his life was in danger. Sumptuary laws furnish another illustration. The law no longer attempts to prescribe what men shall eat or wear, the number of invited guests who may lawfully sit at the table of their host, the number of courses which may be served at a" dinner, or the char- acter and cost of the ornamentation which may enter into the building of a house. In Russia, in Turkey, and in Persia — ^by a grand duke, by a sultan, and by a shah — ^the use of tobacco has been prohibited, under penalty of having the nose slit or cut off, and even of death. So, too, of legislation governing trade and commerce. Forestalling, regrating, and engrossing are now almost forgotten, crimes. Yet it is barely fifty years since the political economists succeeded in wiping them off the English statute-books. To forestall was to buy goods or provisions on their way to market, with the purpose of enhancing the price or diminishing the supply. To regrate was to buy in the market-place, in order there to sell again at a higher rate. To engross was to buy grain standing, or generally to buy up sundry kinds of provisions with the intention of selling again. The pen- alties against these acts were designed to cheapen the 18 PUNISHMENT AND REFORMATION cost of living, by reducing the number of middlemen. In the reign of Edward IV. the sale of coin to a for- eigner was a felony. Under Lysander, the Lacedae- monians put to death any citizen found to have gold in his house. Resistance to innovation has often sought ineffect- ually to place legal barriers in the pathway of human progress. Driving with reins was once a crime in Rus- sia, the immemorial custom having been for the driver to ride or run by the horse's side. The German print- ers who first brought printed books to Paris were con- demned to be burned alive as sorcerers, and only es- caped death by flight. Francis I., in 1635, forbade the printing of any book in France, upon pain of the gal- lows. The fate of Galileo needs only an allusion here. The medical doctrine of the circulation of the blood has also been the object of prohibitory legislation. Curious instances of absurd criminal laws might be given at tedious length. The lonians passed a law exiling all nien who were never seen to laugh. The Carthaginians killed their generals when they lost a battle. Pliny relates that they condemned Hanno for having tamed a lion, because a man who could tame a lion was dangerous to the liberties of the people. In ancient Rome play-actors were deprived of citizen- ship. By the Julian law celibacy was a crime. In Sparta confirmed bachelors were stripped in midwinter and publicly scourged in the market-place. On the other hand, modern civilization has created a formidable catalogue of crimes unknown to former generations. All changes in social organization, in customs, in political control, and in religious beliefs WHAT IS CRIME? 19 import changes in the criminal law as their conse- quence; because what is overthrown must be pro- hibited, and the new needs to be fortified and protected by legal sanction. But the chief source of the addi- tions to the code which have been made in the present century is found in the altered conditions of manu- factures and trade, growing out of recent scientific discoveries and their application by inventors to the arts. The business of the world as now conducted requires the protection of the law in all its parts. There are, accordingly, penalties pronounced against interference with the new modes of transportation by steam and electricity; penalties against infringements upon the rights of patentees; penalties against the abuse of power by corporations; penalties against il- legal combinations by the employed, and against doubt- ful methods adopted by them for gaining a victory over their employers, or over their competitors in the labor market; penalties against the malicious and wrongful use of new and destructive chemical com- pounds, such as dynamite ; penalties against the crimi- nal neglect of the rights and safety of workingmen in factories and in mines. The entire body of sanitary law is for the most part new ; it is measurably due to the rapid growth of towns and the concentration of population under conditions unfavorable to health, where pestilence is easily bred, if proper precautions are not taken for the destruction of the germs of disease. With improved facilities for travel and an ever increasing number of travellers, the system of quarantine has assumed new importance and has been greatly perfected. Other illustrations of the necessary 20 PUNISHMENT AND REFORMATION enlargement of the criminal code, the result of the revolutions which have taken place in modern social life, will occur to every reader. History, from the sociological point of view, is an account of the variations which have taken place in human relations. Among these relations may be men- tioned, by way of illustration, the relation of the sexes ; the relation of individuals and communities to the soil ; the relations of rank, precedence, and subordination; the relations of capital and labor ; corporate relations ; government relations; and the like. Such relations exist wherever men are found. But they differ in- definitely in detail and combination, according to local and temporary conditions, especially according to the position of tribes and nations in the scale of civiliza- tion. The history of crime and punishment is an index, more or less complete, to these historical changes in social and political organization. It is a reflection in miniature of general history, a convenient and com- prehensive introduction to the study of sociology. The relation of the sexes is the fundamental human relation. The laws which regulate it vary, according as monogamy, polygamy, polyandry, or some other sys- tem of permanent or temporary rnarriage is approved by the prevailing local sentiment, on the ground of its supposed social utility. These laws will be more or less rigidly enforced, as the necessity for the preser- vation of the institutions of marriage and the family are more or less highly appreciated. The toleration of competing forms of sexual relation is a sure sign of Jack of respect for marriage ; and a wide gulf separates the social condition of a people among whom inquiry WHAT IS CRIME? 21 Into the paternity of an illegitimate child is forbidden, from that of another people whose laws render such inquiry obligatory. A circumstance which must exert a controlling in- fluence over all social and political institutions is the mode by which the members of any given community are attached to the soil. There can have been originally no property in land; it was what the Roman lawyers called res nullius, a thing without an owner, like the air. The first ownership must have been tribal or com- munal, and could have had no other basis than occu- pation. When the Israelites took possession of Canaan, they subdivided the conquered territory, not by in- dividuals or families, but by tribes. Where warring tribes contended for possession, as the herdsmen of Lot did with those of Abraham, the only alternative, unless the strife could be settled by an amicable agree- ment, was an appeal to the law of might. The allot- ment of parcels of ground to families or individuals, for their temporary or permanent use, was an after- thought. The lands so allotted were at first arable lands only; large tracts still were owned in common, like the German marks. Proprietorship in land has assumed different forms in different countries, at different times. It has been governed by different rules, in a nomadic state, under the feudal system, and in modern times. Persons not land-owners, like the English villeins, or the metayer tenantry of South- ern Europe, or the Russian serfs, or our own African slaves, have nevertheless held certain defined relations to the lands cultivated by them, both in the nature of rights and obligations. Instances of communal owner- 22 PUNISHMENT AND REFORMATION ship are still to be observed in the Russian mir and in the village communities of India. Of course these landed rights have been protected by appropriate legis- lation enforced by penalties, which must have varied, and still vary, with the differences in the nature of the tenure by which land is held. The relations created by the legal recognition of rank could only be maintained by privileges and penalties, which tend to disappear, even in their surviving rudi- mentary forms, in a democratic age. How far is crime justifiable or excusable, when two parties agree and consent to its perpetration; for ex- ample, in illicit relations between the sexes? or in gaming, which is a form of robbery? or in the duel, which is a form of murder? The attitude of the criminal law has varied indefinitely as to offences of this description, as public opinion has tolerated or con- demned these quasi contracts to abide by the issue of an immoral action. At the present moment the pub- lic conscience is grappling with the question of the legitimacy of that form of financial speculation which consists in dealing in futures and in options. The sup- pression of the Louisiana lottery was a task beyond the ability of the people of that State; it could not be accomplished without federal ai&>^ The change in pub- lic sentiment which has taken place since the State of New York thought it expedient to sanction a public lottery by law, as an aid to public education, has made a crime of what was once regarded as a virtuous and patriotic action. Slavery is the child of war. The first slaves were military captives. It has been said that the institution WHAT IS CRIME? 23 of slavery, by putting an end to tlie practice of mas- sacring prisoners in mass, was the first and greatest single step in the evolution of civilization. Slavery was originally profitable. So long as it continued to be profitable, it was protected by law. But the expe- rience of all nations in which it has found a foothold— and there are few which can show a clean record in this regard — proves that everywhere its ultimate ten- dency has been to destroy the nation which has tol- erated it. Whenever this has become apparent, the law has overthrown it, often at the end of a bloody struggle. The time may yet come when war itself may be branded as a crime ; but if so, it will not be until the destruction of life and property which it involves is felt to be too great to be longer endured, for the sake of any incidental advantage which may grow out of it. In a word, crime is a variable quantity. It is the product of the aggregate social condition and tenden- cies of a people at a given moment in its history. Ac- tions which in one age are regarded as heroic, and which have elevated their authors to the rank of the gods, in another bring the same daring spirits to a dungeon or the gibbet. The connection between law and ethics is not nearly so close as is commonly im- agined. In law nothing is wrong which the law itself does not forbid. Precedent and prejudice wage per- petual war with progress. The conservative instincts of the race, which are allied to authority in Church and State, in the form of established governmental in- stitutions, oppose the radical and revolutionary ten- dencies of the political and social innovators whose 24 PUNISHMENT AND REFORMATION respect for the past is limited by the intensity of their aspirations for the future. That which is permanent and abiding in human nature constitutes its larger part; but there is enoug'h that is evanescent to impart a transitory character to many alleged crimes and many forms of punishment. Progress has been at- tended by one constant effort to throw off oppression — religious, political, legal, and military; to find room for the exercise and development of individual tastes and capacities. The determination to conquer personal freedom has been indomitable, and it has furnished many martyrs, whom tyrants have branded as crimi- nals. These observations have a distinct bearing upon the question, much discussed of late, whether crime is a disease. Since what is crime in one age is no crime in another, then, if crime is a disease, disease in one age may be health in another. Where heresy is regarded as a crime, the heretic must, upon that theory, be a person whose physical and mental constitution are more or less abnormal. Christians might be regarded as suffering from disease, or at least as constituting an anthropological type, in Arabia; and Mussulmans must be similarly regarded throughout Christendom. The Importance of a distinct understanding of terms, be- fore we enter upon the discussion of biological theories of crime, is thus apparent. Crime is not a character which attaches to an indi- vidual. It is not a simple phenomenon of ethical aber- ration from a standard type. It is rather a complex relation, which the law creates between itself and the law-breaker. The law creates crime. It therefore ere- WHAT IS CRIME? 25 ates the criminal, because crime cannot be said to exist apart from the criminal. The criminal is a man who puts himself in an attitude of antagonism to the law. We are discussing here, not the ethical rights and obli- gations of men in association with each other, but their legal rights and responsibilities. We are discussing, not what ought to be, but what is ; and one object of this book is to show how the law has treated what the law has declared to be a crime. CHAPTER III RETRIBUTION FOR CRIME In dealing with crime and criminals, society may proceed upon either of four principles. It may inflict vengeance upon the culprit, as an act of justice, because he merits punishment. Or it may have recourse to severe penalties, not from any vindictive motive, but with a view to intimidate the guilty and to deter others from imitating their bad example. Or it may aim at the reformation and rehabilitation of the offender. Or, finally, it may attempt to prevent the commission of crime, by vigilance, by the moral training of the young, and especially by devising practical checks to the oper- ation of the causes which are known to swell the aggregate of criminality. These four methods are not mutually exclusive. Historically, however, each of them has been made prominent, in the order of suc- cession in which they have here been named : retribu- tion, repression, reformation, prevention. The primitive man knew nothing of law. There was no law in the garden of Eden, except the divine injunc- tion not to eat of the tree of the knowledge of good and evil. How, then, was social order maintained? The generally accepted theory of primeval social or- ganization is that it was by families. In other words, 26 RETRIBUTION FOR CRIME 27 it was patriarchal. So it is represented in that ancient record, the book of Genesis. The histories of the families of Abraham, Isaac, and Jacob are not unlike instances which might be cited from other nations of antiquity. The power of control was vested in the father of the household — the patria potestas, as it is termed in Roman law. This power was so great, that it extended even to life and death. It was no less absolute over children than over slaves. The original social unit not the individual, but the family. The title of the family to property — to flocks and herbs, to servants, to growing or harvested crops, to such rude money as then circulated for purposes of ex- change, to the imperfect tools and implements of peace and war — was vested in the patriarch ; in a representa- tive capacity, perhaps, but without any actual restric- tion upon his discretionary right to dispose of it at his will. He rendered judgment, and from his decision there was no appeal. Out of the family grew the tribe. When the family became overgrown, there was but one remedy for the inconveniences which resulted from such overgrowth, namely, separation — amicable division. So Lot sepa- rated from Abraham. So, after the death of Jacob, the children of Israel grouped themselves according to the nearness of their blood relationship, by tribes. A similar organization was that of the Scottish nation, by clans. All this is so familiar to the intelligent reader, that it need not be enlarged upon here. It would be foreign to our present purpose to point out the steps by which tribes became united and blended, so as to form in- 28 PUNISHMENT AND REFORMATION choate nations, which grew into complete statehood by impulses from within and shocks from without.^ What concerns us now is to note the original supernatural sanction for the authority vested in the father of a family or a tribal chieftain. The primitive form of religious belief, though it was not and could not be formulated, must have been really pantheistic. The superstitious savage sees in every movement of natural objects the visible manifestation of the power of an in- dwelling spirit. Spirits move the sun, the moon, and the stars across the sky; spirits make the leaves and the grass to wave, and water to ripple, in the wind; spirits make the flame and the smoke to rise, and the rain to fall; spirits are in the growing plants, in the rushing rivers, in the flash of lightning, and the roar of thunder. What more natural than that they should suppose that spirits suggested the thoughts of men? Especially did they believe this of the most powerful of all men, the patriarch. They had no rules by which to order their actions in advance. They simply fol- lowed their natural instincts, and the head of the family or of the tribe pronounced ex post facto judg- ment upon them. His judgment, whatever it might be, was a divine judgment, dictated to him by the gods. Homer calls these inspired utterances themistes, for this precise reason. It seems hardly necessary to allude, by way of confirmation, to the well-known practice of the early kings of Greece, who were in 1 The deep pulsations of the world, Ionian music measuring out The steps of Time — the shocks of Chance — The blows of Death. Tennyson. RETRIBUTION FOR CRIME 29 the habit of consuhing the oracles, particularly the oracle at Delphos, before rendering judgment; or to the Roman augurs. Nevertheless, every judgment pronounced formed a precedent. The body of such precedents gradually ac- quired some measure of consistency. They were re- membered and anticipated. Thus grew up customs, which were the prepotency and promise of laws to come, when the invention of letters should enable men to supplement and supplant tradition by written records. Then usages would become fixed, and the maxims in which they were embodied could be col- lected and combined in the form of codes. This is precisely what happened. It would not be strictly accurate to call the decalogue a code, since the commandments have no penalties attached to them. But the Twelve Tables of the Romans, which are very fully described in Stephen's "History of the Criminal Law," form an ancient and admirable example of a code. All the offences known to early Roman law are there listed, and the penalty for each of them is stated with precision. Still, we see in those tables only the dawn of legislation. The legislative function began to be imperfectly discriminated from the executive in government. The night of superstition began to flee with reluctant, hesitating step, before the rising light of reason. The genius of Rome was not yet able to distinguish sharply crimes from torts, or to cover the ground which a penal code ought to cover, or to meas- ure guilt and penalty, and adjust them to each other with any approach to a correct estimate of either. Neither had the human intellect yet grasped the con- 30 PUNISHMENT AND REFORMATION ception of the difference between legislative and judi- cial functions. The origin of courts is very obscure. Ninus, the founder of the Assyrian empire and the builder of Nineveh, is said to have instituted, in almost prehis- toric times, regular and orderly tribunals — one for the trial and punishment of murder, another of theft, and a third of adultery. Whether this be true or false, something like it is discoverable in Roman history. The first courts were merely committees of the legisla- ture, to which the duty was intrusted of making cer- tain investigations and decisions with reference to mat- ters referred to them. They were called qucestiones, or inquests. Human nature and human needs do not vary, except within tolerably narrow limits; and it might easily happen that some such division of crimes to be inquired into took place in Rome as that credited to Persia. Such inquests, at first temporary in their jurisdiction, naturally tended to become permanent, as their utility, was recognized, and to acquire an au- thority more or less independent of that by which they were created. It is curious to observe how the steps in the process of growth of jurisprudence just described with so much brevity, and yet, it is hoped, with sufficient accuracy and clearness, correspond to the Spencerian formula of evolution. Von Baehr, the great German naturalist, observed that the growth of the tgg is marked by a change from a state of simplicity or homogeneity to one of complexity or -heterogeneity. This was Herbert Spencer's starting point. He added that, along with the change from simplicity to com- RETRIBUTION FOR CRIME 31 plexlty, may also be observed a counterchange from indefiniteness to definiteness, and from incoherence to coherence. Von Baehr had noticed that the change is one of differentiation. Spencer added that it is also one of integration. In other words, Von Baehr called attention to the analytic aspects of the change, but Spencer to its synthetic aspects. Accordingly he de- fined evolution, which is but another word for growth, as "a continuous change from indefinite, incoher- ent homogeneity to definite, coherent heterogeneity, through successive differentiations and integrations." This formula, which is as simple as it is symmetrical, applies, so far as we can yet see, to all living organ- isms ; and to the extent that human society is a living, organic thing, capable of growth and development, all history unfolds in accordance with it. Let us apply it to what has thus far been said about the history of government and of law. The union of all governmental functions in one person, the person of the patriarch, was certainly the acme of simplicity and homogeneity; but it lacked nothing so much as definition. The breaking-up of the family into tribes was a process of disintegration, and the more perfect union of the tribes under the form of a state was an act of Integration. By the joint and successive opera- tion of these two processes, the vague and ill-defined power residing in the family or tribal chief continually tended, through analysis, to become more definite ; to reveal itself at first as separable into two, the execu- tive and the legislative, but later into three, the execu- tive, legislative, and judicial functions. The concep- tion of crime became correspondingly more definite. 32 PUNISHMENT AND REFORMATION and at the same time that of penalty also. The system of legislation and of administration became steadily more complicated and yet more consistent. In pro- portion as we comprehend and retain in our minds this history, the meaning of the formula becomes plain ; and vice versa. History, read in this light, ceases to be a chronicle of events, like a catalogue of words in a dictionary, bearing no organic relation to each other. We begin to see the beauty of the providential purpose which unites and regulates it, so that its varied parts form a distinct pattern, which it is possible to trace out and remember. Besides, the direction of the lines which we have followed to their termination in the present must be the same in the undiscovered future ; and so we are able to forecast the ways' which progress must take, if the unity of history, which is the unity of truth, is not to be violated, as we know that it cannot be. But this is a digression. To return to the thread of our story, let us revert to the remark already made, that the primitive state of mankind must have been one of war, both individual and tribal. In the absence of law, there was no way to settle disputes but by the arbitrament of force. To defend one's conception of right, at any risk, was regarded as highly moral; to refuse to do so as an immoral act. The fundamental principle of morality is reciprocity. I must give an equivalent for what I get. My neighbor has no right to take from me that for which he does not render an equivalent. If one term of the equation is a minus quantity, the other must be. The primitive man could not see why, if we are to return benefits, we are not RETRIBUTION FOR CRIME 33 to return injuries, upon the same basis of give and take. Accordingly, the instinct of retaUation is one of the deepest instincts in human nature ; it survives even in the civilized man. Where there is no possibility of obtaining satisfaction or indemnity without violence, violence no longer presents itself to the imagination as an act of vengeance, but of self-defence. The lex talionis, therefore, is the most ancient of all laws. When Cain had killed his brother, he realized in an in- stant (with no experience to give his thought the form which it assumed), that every man who saw the blood upon his hands would seek his life in Abel's name; and God set a mark upon him for his protection — which the apologists for capital punishment upon relig- ious grounds can explain as they are best able. There is no reason to accept the theory of some scholars that the lex talionis originated in Egypt. Rhadamanthus, the wise, just, and (for his age) humane lawgiver of Crete, whom the ancients held in such estimation that the mythologists made him a judge in the lower world, is said to have introduced it into Crete. But it is as old as human nature, as universal as mankind, and as enduring as this present evil world. It was never better stated than in the Mosaic law: "Thou shalt give life for life, eye for eye, tooth for tooth, foot for foot, burning for burning, wound for wound, and stripe for stripe." I have too sincere an admiration for Moses (who must, I think, be admitted to be the greatest man of all ages, in view of what he did as a lawgiver, not for the Jews only, but for all nations as well), to let this quotation pass without a single apologetic remark. 34 PUNISHMENT AND REFORMATION little as Moses needs defence. To be sure, the milder and gentler spirit of the gospel shines by contrast in our Lord's doctrine of non-resistance, which, however, men are not disposed to accept in its literal fulness. Moses is expressly said to have tolerated divorce on account of the hardness of heart of his contemporaries. In the same way he tolerated retaliation for injuries, but sought to restrain the vengeful impulses of men by limiting the degree of reciprocal injury to an exapt equivalent; an eye for an eye, but no more — ^not one wound or stripe in excess of the exact tale of indebted- ness. He recognizes and enjoins upon the wrong-doer the sacred obligation to render satisfaction to the party injured, but, with Portia, cries to the latter: — " Shed thou no blood ; nor cut thou less, nor more, But just a pound of flesh." Given these two conditions — the family or tribe as the social unit, and the right and duty of retaliation supposed to be an ethical axiom — and there could be no avoidance on the part of all the members of a family or tribe to take part in the quarrel of every injured member. Organized revenge became a social institu- tion, under the title of the "blood-feud." In a rudi- mentary form, ever tending to become obsolete, this institution survives in our own country, at the South, where the vendetta is more dreaded than a pestilence ; the vendetta of which Mark Twain has drawn so exact a picture in that delightful book for boys, "Huckle- berry Finn." It is the Southern sense of the solidarity of the family, in opposition to extreme Northern in- dividualism, which is the explanation of its survival, RETRIBUTION FOR CRIME 35 in connection with the more or less patriarchal institu- tion of African slavery, not yet extinct in an age when it had become an anachronism. There were, however, two efficient checks upon pri- vate vengeance, of which the first was the right of sanc- tuary. It may surprise some readers of this book to observe the extent to which the author recognizes the Bible as a sort of elementary text-book of soci- ology ; but this is one of its legitimate uses. The chil- dren in our Sunday-schools have been made acquainted with pretty much all the leading features of primitive society, in so far as they bear directly upon the ques- tion of the order of social evolution, of which this is an instance in point. They know that Moses instituted cities of refuge, in which a homicide was safe from the avenger of blood, pending a judicial investigation of his criminal responsibility. Similar sanctuaries have been established by the customary or statutory law of most nations. At first they were the temples, and later the churches. The frightened refugee fled to some sacred place, the peace of which could not be lawfully violated, and there he had a right to remain for a certain specified period, until the affair could be arranged by intermediation and mutual concession. When we come to discuss the history of English transportation, we shall see how exile grew out of sanctuary ; the peace of the gods was replaced, in the modern state, by the king's peace; the man who left sanctuary usually fled the country; and, when sanc- tuary was abolished, the criminal was driven from the country. The other check upon the tendency of retaliation to 36 PUNISHMENT AND REFORMATION run to excess was the system of composition for in- juries, out of which has .grown the use of pecuniary fines as a form of legal punishment. We have re- marked in substance that the historical basis of all criminal codes is found in the original acceptance of retribution as the sole remedy for wrongs, and the ethi- cal justification of private and tribal war. When, in the course of time, the conception of the State as an entity arose from the chaotic earlier political thinking of primeval man, and it was seen that the State as such could itself be wronged, by disobedience to its mandates and defiance of its authority, the State was compelled to assume that it had the same right to inflict ven- geance which inhered in a natural person. But, be- yond that, the State at a very early stage in its own evolution assumed the role of an. arbitrator and medi- ator in private controversies, as an obvious safeguard against the peril of a return to a condition of tyranni- cal exercise of arbitrary power, or a lapse into anarchy. It can hardly be too strongly insisted upon, that crime was originally nothing else than war. It is still war, but in a qualified sense. The plaintiff and defendant in a suit were therefore regarded as combatants in a new and compulsory arena ; the State was the referee, with power to prescribe the rules governing the strug- gle, to enforce them, and to award the victory. It was virtually a public and official peacemaker. Some historical instances will illustrate this relation. Burckhardt describes in an amusing way a settlement made by a Persian cadi between two men named Bokhyt and Djolan. Bokhyt called Djolan a dog, which in the Orient is a deadly insult, worse than if RETRIBUTION FOR CRIME 37 you should call a Frenchman a pig; and perhaps the character of the curs of the East warrants its being so regarded. There is not in the Hebrew Scriptures a single good word for a dog, and an unappreciated touch in the description of the New Jerusalem, with which the new Testament closes, is the declaration that there will be no dogs in it. Very well. Bokhyt called Djolan a dog, whereupon Djolan promptly hit him. Bokhyt then whipped out a knife and cut Djolan in the shoulder. After hearing the facts in the case, the cadi decided that there was due to Djolan from Bokhyt for the insulting expression a sheep, and for the wound inflicted with a knife three camels; but to Bokhyt from Djolan for the blow upon the arm one camel. The balance of the account was in Djolan's favor, and, upon the payment to him by his antagonist of one sheep and two camels, peace was restored. Sir Henry Maine has called attention to the trial scene upon the shield of Achilles, in Homer, where the question at issue was the amount to be paid in composition for a murder. One of the parties claimed that such payment was due, but the other denied the obligation. In the centre, between the disputants, lay two talents of gold, which were to be given to the spectator who should give the shrewdest opinion and the best reasons for it, the crowd to be the judge and award the prize to the winner. Composition of injuries was no less common among the Romans than among the Greeks. Reference may here be made to the famous description by Gaius of the legis actio sacramenti, an action very sijnilar to the in- cident depicted upon the shield of Achilles. One of 38 PUNISHMENT AND REFORMATION the parties claimed that the other was his slave; the other denied the claim. This quarrel was referred to the praetor for decision. You need not be reminded of the great importance which attaches to ceremonial among people more or less incapable of abstract think- ing. In all ancient legal proceedings due regard to ceremony was essential to the validity of transactions. The gestures in this case were as follows: First, the plaintiff, taking a wand, which represented a spear, ad- vanced and touched the alleged slave with the point, after which he laid his hand upon him, thus asserting in expressive pantomime his right to him. The slave replied by taking a similar wand and repeating every motion of his pretended master. The praetor ordered both to release their hold of each other, and said that he would give a decision of the point at issue. The plaintiff then produced a sum of money, which he offered to wager that he could substantiate his claim. The defendant wagered an equal amount. When the case had been heard and an opinion rendered, the praetor took the money of both as compensation for his services, which goes to show that law has been an expensive luxury from a very remote date. Our laws are not founded so much upon Roman law as upon the common law of England, which was a development of the practices and maxims of our Teu- tonic forefathers. Of the Germans, the Romans said that their business in life was bloodshed and acquisi- tion by bloodshed. The Anglo-Saxons had three words to designate money paid in compensation for injuries. Bot was paid, if the injury was accidental or trifling; in compensation for a crime the aggressor paid wite; RETRIBUTION FOR CRIME 39 the word wer meant the valuation of a man according to his rank, which was payable in some cases to the party wronged, as bot, but in others, as wite, to the king. Wergeld, or blood-money, was the only penalty known to the ancient Salic law. Under Alfred the Great, minute regulations as to compensation of in- juries were drawn up at considerable length, accord- ing to which, if a man cut off his enemy's thumb, he had to pay hot to the amount of twenty-five shillings; for cutting off the first finger fifteen shillings, the middle finger nine, the fourth finger six, and the little finger five. These are given merely as illustrations of the fundamental principle of early criminal law. Moses, on the contrary, strictly forbade the payment or acceptance of blood-money. That principle' in its essence was the substitution of penalties. The lex talionis, as stated in the Mosaic code, was so modified as to admit of an agreement between the parties, or an adjustment by intervention of some legally constituted authority, which would dispense with the literally exact observance of the rule, "eye for eye, tooth for tooth, wound for wound, stripe for stripe," and require the aggressor to submit to some other substantially equivalent damage by way of expiation for an injury done, which would at the same time be more satisfactory to the injured party. The principle just stated underlay, of course, the doc- trine of penance taught and practised by the mediaeval Church. It was easy, after advancing from the thought of crime as a personal injury calling for personal re- taliation to that of corporate injury calling for corpo- rate retribution, to take the further step involved in the 40 PUNISHMENT AND REFORMATION conception of the violation of justice in the abstract, an injury to the gods, a disturbance of the ethical balance of the universe. Indeed, it might be difficult to prove that the claim of the Church to inflict spiritual penal- ties for crime did not antedate the claim of the State to deal with it, as the depositary of civil and political sovereignty ; since belief in spirits and the supernatural long preceded the acceptance of the notion of the State. As an offence against the majesty of heaven, crime assumes an immeasurable importance, and calls for reactionary penalties proportionate to the distance be- tween the gods and men. Hence the Church, in the exercise of criminal justice, tends to greater severity than the civil power. It also enjoys a freedom from restraint, in the matter of substitution of artificial for natural expiatory punishments, to which the State can lay no claim. It has even been said that the prohibi- tion of private vengeance was in its origin sacerdotal. However that may be, the State gained control of the punishment of crime, in the first instance, as the natural consequence of the perception of the solidarity of families and communities. The recognition of this solidarity, on both sides of the line which separated the parties who inflicted and who bore the injury, was tolerably impartial. In Rome, when a master had been murdered by a slave, the law authorized the execution of the entire body of slaves of the murdered man. Similarly in Greece, at least in Athens, three persons, from the household where a murder had been com- mitted, could be held until the murderer was delivered to justice, and, in default of his delivery, they could be adjudged guilty in his stead. On the other hand, RETRIBUTION FOR CRIME 41 if a man killed without premeditation had no relatives to claim compensation on his account, ten citizens of the curia could make pecuniary settlement with the homicide. The seizure by the State of the exclusive right to inflict retributory punishments was in the interest of peace, but not necessarily of justice, for the reason that, if crime is an offence against justice regarded in the abstract, a small offence, if its magnitude is measured by the resulting damage, may be thought by the State to merit a disproportionate penalty; and this will tend to be the case, in proportion as the power of the State is vested in an oligarchy as its absolute prerogative. Theoretically, an injury to any citizen is an injury to the social whole of which that citizen is a member; but, under the feudal system (when the king of France dared to say that he was the State), the grand seigneurs disposed of the prop- erty and persons of the common people, on the pretext of their criminality, almost at discretion. They had power, under the guise of composition of public in- juries, to fine their dependants, until the administra- tion of justice became an act of blackmail and of confiscation. The robber barons of the Middle Ages were plunderers, who demanded ransom in proportion to the wealth and rank of their victims. They enjoyed private and personal jurisdiction apart from the sover- eign, and had their own dungeons, and erected their own gibbets, a privilege which they highly prized. Under this system, the number and severity of pun- ishments greatly increased. By Roman law, the person of a citizen. was inviolable; before corporal punishment 42 PUNISHMENT AND REFORMATION could be administered to him, he was, by a legal fiction, reduced to the status of a slave, and declared to be servus pcenw. In France, in the Middle Ages, a noble could not be punished without first being reduced from his rank. But the abolition of slavery in Europe had for its first efifect simply the extension of the penalties formerly reserved for slaves to the free-born. The in- violability of the aristocracy continued until the tri- umph of democracy, in England, France, and the United States, accompanied as it was by bloodshed, which did not spare even crowned heads, virtually extinguished class privileges. CHAPTER IV EARLY JUDICIAL PROCEDURE Before proceeding to discuss the treatment of crime for its repression, it seems necessary, in order to the continuity of the narrative, and as a sidelight upon questions that are likely to arise, at any rate in the mind of the reader, to turn for a moment to consider early judicial procedure, in its relation to more modern methods. The creation of courts was an indispensable step in the effort to abolish private vrar. So long as private war was tolerated as a lawful mode of redressing wrong, the only measure of justifiable retaliation was the degree of passionate anger aroused in the injured person. With the delay in the exercise of summary vengeance, this anger tended to subside. The civil power, in intervening for the plaintiff, was bound to regard and reflect as nearly as possible his state of feeling. Hence the distinction in the treatment of offenders caught in the act and those not so caught. The law of infangthef (from the German infangen, to seize and hold by the fangs) authorized the ag- grieved party, or any other person, to follow a thief caught in the act, and kill him wherever found. A corresponding distinction was made, by the Twelve Tables, between manifest and non- manifest theft. Manifest theft was punishable, as in England under 43 44 PUNISHMENT AND REFORMATION the law of infangthef, by death; but non-manifest theft was punishable by a simple fine, equivalent to double the amount stolen. If the State was to assume the duty of arresting wrong-doers, a systematic organization of arrests had to be devised, which was accomplished by means of the division of the population of England into shires, hun- dreds, and tithings. Allusion has been made to the institution of the king's peace, by which brawls in the presence of the king, or in places likely to be frequented by him, were forbidden and severely punished. Certain streets of London were thus set apart. There was also the Church's peace; and even some of the great lords temporal enjoyed, in an age of tumult and disorder, this privilege of a quiet life. Since the transfer of political power to the people, the king's peace has be- come the public peace; and fighting in public is now everywhere a breach of the statutes, since the majesty of the community, as a whole, is equal to that of any individual exercising rule by divine right vested in himself alone. The institution of the king's peace suggests another ancient institution, that of peace-pledge, as it was called. It was also called frank-pledge. The tithing was a group of ten men organized as a guild. A guild was in some sense an artificial family, held together by a common interest, and governed by rules which had the sanction of long-established usage in their favor. Guilds played a great part in the development of the trades and industries of our modern life. The tithing was a political or governmental guild. Ten guilds EARLY JUDICIAL PROCEDURE 45 constituted a hundred, and every shire was subdivided into hundreds. The principle of solidarity, of which mention has several times been made, applied to it, since all the members of any tithing were held re- sponsible for the actions of each and every member. This mutual responsibility constituted peace-pledge. It was the original form of police protection. When it was necessary to pursue a fugitive from justice, a hue and cry was raised, and all the members of the tithings, the hundreds, and the shires were compelled to join in it. A criminal could be followed from one shire to another ; but, at the boundary line dividing two ad- joining shires, the sheriff and posse of the new shire took up the chase, and the members of the posse which had driven him out of their own shire were relieved, and at liberty to disperse to their own homes. The inhabitants of any shire, who could not show that they had tracked* any man against whom a hue and cry had been raised, as far as their own boundary, and forced him over it, became liable for the payment of any damages which could be legally collected on account of the wrong done. Warrants of arrest were a later in- vention, and, when first invented, they were known as warrants of hue and cry. Let us suppose the thief caught. How was he tried ? In Oriental lands, and to a limited extent in Germany, by a popular assembly or an assembly of the elders. But in England, and generally in the north of Europe, by one of two obsolete proceedings, ecclesiastical in form and superstitious in fact, namely, by ordeal or by compurgation. Ordeal (urtheil) was nothing more or less than an 46 PUNISHMENT AND REFORMATION appeal to the Almighty to perform a miracle in vindica- tion of the innocence of the accused. I will endeavor to describe one form of the ordeal of water. Imagine a church with an earthen floor. Upon the ground, in the centre of the church, a fire has been kindled, the smoke of which rises to the roof, obscuring the altar and the sacred images. Not even the pitying Christ upon his wooden cross can see what is about to happen in his name. Over the fire is an iron kettle with water in it. The company present and tak- ing part in the ceremony is ranged in two divisions, on the two sides of the church, one party being the party of the accuser, and the other of the accused. The priest, bearing the Bible and the rood, and carrying holy water, passes around among them, sprinkling them with holy water and making them kiss the rood and the book. When the water boils, he asks them to join with him in prayer that the truth may be made known. The accused comes forward, his arms swathed in linen, and is ordered to pick up a stone at the bottom of the kettle. There were two forms of the ordeal, single and triple. In the single ordeal he immersed his hand to the wrist, but in the triple ordeal he immersed his arm to the elbow. After picking up the stone, three days were allowed for the scald to heal, when his arm was unwrapped, and, if any sign of the scald appeared, he was held to be guilty. The ordeal by iron was substantially the same, ex- cept that the accused, instead of dipping his hand into boiling water, was required to pick up a piece of red- hot iron — one pound in the single, and three pounds in the triple, ordeal. EARLY JUDICIAL PROCEDURE 47 By this device the power of the priests was aug- mented to a highly dangerous degree. Practically, they had the opportunity to destroy their enemies without risk to their friends, since they could swathe the arm more or less heavily, and even apply in advance chem- ical preparations which would protect the flesh from burning. For priests under accusation no such chances were taken. All they had to do was to eat a piece of bread called corsnced. It could be poisoned at the suggestion of malice, but if not, the danger of conviction was nothing. Ordeal could be escaped in but one way, by compur- gation. The accused might bring his friends, naturally members of his own tithing, to swear that they be- lieved that the oath to his own innocence which he had taken was a true oath. If the number of compurga- tors was insufficient, he had to undergo the ordeal. The required number was usually twelve. This prac- tice was no doubt conducive to wholesale perjury, but it. was the precursor of trial by jury. William the Conqueror introduced into England the wager of battle. Each party chose a champion, and the two selected fought to the death in the presence of the constituted authorities; the one who was beaten was declared to be recreant, a judgment which ren- dered him infamous, if he did not lose his life. This was merely regulated, limited private war. In the wager of law, the accused appealed to a jury. The jurors could at the same time be witnesses. In- deed, if there were not enough men who already knew enough about the case to pass upon it without further 48 PUNISHMENT AND REFORMATION evidence, the tale of jurors was completed by afforce- ment. The chances of the alleged culprit were rather slim, under a system which knew nothing of any jury but the grand jury, the members of which were not merely witnesses and accusers, but also judges of his guilt or innocence, concerning which their minds were made up when they were summoned to act. The first grand assize took place under Henry II. The creation of a distinct petit jury was an afterthought, when the injustice of the original jury system forced itself upon the notice of men. If a prisoner refused to plead to the charge brought against him, he was said to stand mute. Refusal to plead subjected him in the first instance to the prison fori et dure, where he was given nothing to eat, or at best only bread and water, so that he starved to death, if he continued obstinate. Subsequently for the hard and strong prison was substituted the peine fort et dure, which consists in pressing a man to death by placing him upon his back upon the floor, with a platform rest- ing upon his breast, on which was piled iron until the life was crushed out of him. Dreadful as was the suf- fering, many men endured it without flinching to the bitter end, rather than impoverish their families by pleading and then being found guilty, which involved the confiscation of the prisoner's estate. But it is no part of the author's intention to describe in detail the evolution of the courts in England, which has been done by Sir James Stephen, and is not ger- mane to the special topic under discussion — the history of punishment. CHAPTER V INTIMIDATION AND TORTURE The second of the four methods of dealing with crime is repression by intimidation. The motive of retributory punishment is the desire to obtain indem- nity for the past; that of deterrent punishment is the wish to gain security for the future. Retributory punishment is supposed to be an effort to adjust and close an account, on a mathematical basis; it is the equation of guilt and suffering — the suffering of the wrong-doer against that of the party wronged, includ- ing the state with the individual. Or if guilt is measured, not by the resulting damage, but by the intention of the culprit, there is still, in the minds of those who justify the infliction of pain and loss upon a fellow-man on the ground of the satisfaction of abstract justice, a vague notion that some ascertainable or non-ascertainable amount of sorrow or agony, en- dured voluntarily or under compulsion by the guilty, will exactly balance the selfishness and malice which prompt any criminal action. Many men, looking at the question from its purely ethical side, imagine that punishment on any other basis is immoral. Others think that man has neither the power to read the heart and estimate guilt, nor the right to avenge it, but that such power and right are the prerogative of Deity. In- stead of seeking to restore the lost equilibrium of two hostile individuals in their relation to each other, or the 49 50 PUNISHMENT AND REFORMATION equilibrium between any individual and the commu- nity, they have in view the sole end of protecting the community against a repetition of the offence ; and, to secure this end, they are ready to sacrifice any number of individuals. As against the social whole, in their opinion, the individual has no rights. That is to say, he has no rights which society is bound to respect, in comparison with its own real or fancied safety. The suffering inflicted upon the criminal may be more or less than he deserves, from the point of view of strict equity ; but it does not matter, if the deterrent influence of the example is not lost upon others, who might otherwise be tempted to break the law after the same fashion. It would be idle to cherish the hope that the time will ever come when mankind will accept one of these theories to the exclusion of the other. Historic- ally, they have coexisted; and they find by turns an echo in the approving thought of all intelligent men. On either theory, there is practically no limit to the degree of pain which may lawfully be visited upon victims of the law's displeasure. In entering upon the painful task of recounting the history of inhumanity by which the administration of the criminal law has been disfigured and disgraced, in all ages and in every quarter of the globe, I shall not, •therefore, endeavor to analyze the precise motive which prompted each of the several acts of cruelty which it is necessary to describe. The reason for entering upon this branch of the general subject is that it really forms the larger part of the history of the treatment of crime, extending from the dawn of civilization to a very recent period ; and that it is the dark and bloody back- INTIMIDATION AND TORTURE 51 ground against which modern theories of the purpose and methods of treatment stand out in shining relief. The reader who shrinks from the thought of physical and mental agony as too painful for him can pass this chapter without reading. All possible cruelties fall into two great divisions, according as they do or do not terminate in the death of the victim. CAPITAL PUNISHMENT Death is the most ancient of all penalties, and the most common in antiquity, as it still is among savages. It is the most effectual mode of getting rid of trouble- some or offensive characters; and the feeling of re- venge, when in active operation and unrestrained by the considerations which appeal to the intellect and conscience of civilized men, is an impulse which grows by what it feeds upon, and very easily runs to excess, nor stops short until the extreme limit of possible agony has been inflicted upon the sufferer. Among the modes of taking human life which are or have been practised by conquerors and rulers, may be mentioned: burning, beheading, hanging, drawing and quartering, breaking on the wheel, crucifixion, strangu- lation, suffocation, drowning, precipitation from a height, stoning, sawing asunder, ' flaying alive, crush- ing beneath wheels or the feet of animals, throwing to the wild beasts, compulsory combat in the arena, burying alive, boiling, empaling, pressing, piercing with javelins, shooting, starving, poison, the troughs, melted lead, serpents, blowing from the mouth of a cannon, and electrocution. I have named about thirty 52 PUNISHMENT AND REFORMATION different ways of taking life, under some of which a number of sub-varieties may be specified. Burning, for instance, is a very ancient method. It is mentioned in the book of Genesis ; Judah proposed to burn Tamar, his daughter-in-law, when she was found to have lapsed from virtue. Moses ordained burning as the penalty of incest. Achan was burned. The three Hebrew children, captives in Babylon, were cast alive into a furnace of fire. In the worship of Moloch, a hollow image of the god, of brass, with folded arms, was erected; babes were laid, as living sacrifices, in the idol's arms, and killed by the heat of the flames from a fire kindled within. Caesar tells us that the Gauls and Britons of his day thrust cap- tives in mass into a wicker image of gigantic stature, then piled wood around, lighted it, and, in the midst of the smoke which concealed the god and his victims from sight, the image and its living contents tumbled together into the fire, where they were consumed. In the early history of England, slaves were burned for theft; female slaves were burned by women — eighty other female slaves were compelled to assist at the ceremony. Burning was the mode of execution of slaves also' in Rome. The Theodosian code prescribed this punishment for witchcraft. In the Middle Ages, burning was the usual punishment for sacrilege, parri- cide, poisoning, arson, and the crime against nature. Under the term sacrilege were included heresy, witch- craft, atheism, blasphemy, and the like. It was cus- tomary to drive a stake in the ground, build a plat- form around it, set straw and fagots in order under or upon this platform, leaving an opening for the in- INTIMIDATION AND TORTURE 53 troduction of the condemned, then bind him to the stake by iron bands about the neck and waist, and Hght the bonfire. If it was desired to abbreviate the agony of the victim, a cord passed around his neck was secretly tightened from behind, before setting fire to the pile ; or his heart was pierced, through the flames, by an iron dart at the end of a long hooked pole used to stir the fire. A handful of ashes was thrown in the air at the conclusion of the ceremony. In the auto-da-fe, or act of faith, the accused was given an opportunity to recant, upon the platform, in the hear- ing of the spectators ; and, if he failed to avail himself of the opportunity mercifully given him to save his life, the ceremony proceeded. In London the ordinary place for kindling the sacred flame was at Smithfield ; and the frequency of this punishment under one of the English queens has fastened upon her the title of Bloody Mary. England, to her everlasting shame be it spoken, de- manded the death of Joan of Arc, who was burned at the stake as a heretic. Under Henry IV., of England, a law was enacted which authorized sheriffs to burn heretics without a writ ; for this reason no estimate can be formed of the number burned in that country. Burn- ing was also the penalty of treason. Even women were thus punished, under English law ; and it is only about a hundred years ago that burning for treason was abolished. Other modes of burning have been in vogue in other parts of the world. Nero smeared the bodies of the early Christians with pitch, and, it is said, used them to light the streets of Rome. In Persia, the punishment invented by Sefi II., known as the illumi- 54 PUNISHMENT AND REFORMATION nated body, consisted in piercing the body with num- berless holes, in which burning wicks were inserted. In China a woman is credited with the invention of pao-lo, which was a tall metal tube, to the top of which the victim was bound, with arms and legs encircling the tube, and a fire kindled at the bottom was kept up until his remains were reduced to ashes. So, too, there have been many ways of beheading men sentenced to die. The Romans used a short sword called the glaive, with which, no doubt, John the Bap- tist was beheaded in prison. The method followed in China and Japan is described as follows: — The criminal is carried to the place of execution in a bamboo cage, and by his side is a basket in which his head will drop when removed. He is pinioned in a very effective manner. The middle of a long thin rope is passed across the back of his neck, and the ends crossed on his chest and brought under the arms ; they are then twisted around the arms, the wrists are tied together behind the back, and the ends are fastened to the portion of the rope on his back. A slip of paper containing his name, crime, and sentence is fixed to a reed and fastened at the back of his head. On arriving at the place of execution, the officials remove the paper and take it to the presiding mandarin, who writes on it in red ink the warrant for execution. The paper is then replaced, a rope loop is passed over the head of the culprit, and the end given to an assistant, who draws the head forward, so as to stretch the neck, while a second assistant holds the body from behind, and in a moment the head is severed from the body. The in- strument is a sword made expressly for that purpose. ' INTIMIDATION AND TORTURE 55 It is a two-handed weapon, very heavy, and has a very broad blade. The executioners pride themselves on their dexterity in its management. After the execu- tion, the culprit's head is taken away, and generally hung up in a bamboo cage near the scene of the crime, with a label bearing the name and the offence of the criminal. Beheading was not practised in England before the year 1035. Prisoners sentenced to lose their heads had them taken off, in the Tower, upon a block, with an axe. Macaulay, in commenting upon the blundering and tragic execution of the Duke of Monmouth, says: "Within four years the pavement of the chancel was again disturbed, and hard by the remains of Monmouth were laid the remains of Jeffreys. In truth, there is no sadder spot on the earth than that little cemetery. Death is there associated, not, as in Westminster Abbey and St. Paul's, with genius and virtue, with public veneration and imperishable renown; not, as in our humblest churches and churchyards, with everything that is most endearing in social and domestic charities; but with whatever is darkest in human nature and in human destiny, with the savage triumph of implacable enemies, with the inconstancy, the ingrati- tude, the cowardice of friends, with all the miseries of fallen greatness and of blighted fame. Thither have been carried, through successive ages, by the rude hands of jailers, without one mourner following, the bleeding relics of men who had been the captains of armies, the leaders of parties, the oracles of senates, and the ornaments of courts. Thither was borne, before the window where Jane Grey was praying, the mangled corpse of Guilford Dudley. Edward Seymour, Duke of Somerset and Protector of the Realm, reposes there by the brother whom he murdered. There has mouldered the headless trunk of John Fisher, Cardinal of Saint Vitalis, a man worthy to have lived in a better age, and to have died in a better cause. There are laid John Dudley, Duke of Northumberland, Lord High Admiral, and Thomas Cromwell, Earl of Essex, Lord High Treasurer. There, too, is another Essex, on whom nature and fortune had lavished all their bounties in vain, and whom valor, grace. 56 PUNISHMENT AND REFORMATION genius, royal favor, popular applause, conducted to an early and ignominious dooni. Not far off sleep two chiefs of the great house of Howard— Thomas, fourth Duke of Norfolk, and Philip, eleventh Earl of Arundel. Here and there, among the thick graves of unquiet and aspiring statesmen, lie more delicate suf- ferers: Margaret of Salisbury, the last of the proud name of Plantagenet, and those two fair queens who perished by the jealous rage of Henry. Such was the dust with which the dust of Monmouth mingled." Sonorous and pathetic as is this passage, it makes no mention of Sir Thomas More, Sir Walter Raleigh, Algernon Sidney, Archbishop Laud, and the unfortu- nate Charles I. ; names which, for one reason or an- other, interest us more than some of those with ponderous titles, which the brilliant historian has se- lected to adorn his pages. Beheading in France has been reduced to high art, by the adoption and use of the guillotine. In its primi- tive form, this is a very ancient instrument of de- capitation, by which Manlius, the Roman, is said to have lost his life. There are numerous mediaeval en- gravings representing the execution of Manlius, one of which is by Albert Diirer. It was called, in the criminal statutes of the Netherlands, in 1233, the Panke or Diele; in France, in the fifteenth century, la doloire; in Italy, in the sixteenth, the mannaia. Beatrice Cenci was beheaded after this fashion. Jean d'Autun, the contemporary and biographer of Louis XII., relates that in 1507, Demetrius Giustiniani, of Genoa, for sedition, was condemned to kneel upon the scaffold and lay his neck upon a block, when it was cut in two by a falling bascule, operated by a cord in the hand of the executioner. At Florence, Sept. 7, INTIMIDATION AND TORTURE 57 1629, by a similar device, Lorenzo Zei had his head severed from his body. The nature of the instrument is well indicated by the old German name for it, the fall-beil, or falling axe. Marshal Montmorency of France was guillotined at Toulouse, in 1652. The "gibbet of Halifax," in use before and during the Commonwealth, and last used in 1650, consisted of two parallel upright beams, and a transverse beam, the latter heavily weighted with lead, and having a sharp, cutting edge in the form of a chopping-knife about a foot square, attached to the lower side; this cross-beam was upheld at a height of about ten" feet, by a pulley ; when the rope was cut by the stroke of a sword, it fell upon the victim's neck, which was se- curely held in place between them. Lord Morton, Regent of Scotland, having seen it, was so taken with it, that he introduced it at home, where, on the third of June, 1587, he was the first to test its efficacy in practice. For this reason, the Scotch gave it the name of the "Maiden." It is preserved in the Antiquarian Museum of Edinburgh. The guillotine is so called after its reputed inventor, Dr. Guillotin, who was, during the French Revolution, a member of the Assembly.^ A motion offered by him to abolish the immemorial distinction in penalties for the same offences committed by the aristocracy and the common people was agreed to, Dec. 1, 1789, four months and a half after the overthrow of the Bastille. On the 2Sth of September, 1791, in the penal code that day adopted, it was further provided that the only mode of execution should thenceforth be by be- iThe curious reader interested in trifles may like to see the 58 PUNISHMENT AND REFORMATION heading, a privilege which formerly pertained to the nobles, vulgar criminals having to put up with hanging. The motive of both these innovations was humane. Louis XVI. had already abolished preliminary torture. The assembly put an end to all torture, and to the confiscation of estates, as well as to the practice of declaring the posterity of offenders infamous. Equally humane was the intention of Dr. Guillotin in the in- vention of a machine, still in use in France, by which he designed to reduce the pain of death "to a shiver," words of a song which appeared in the Actes des Apotres, a royalist journal, in which the new word was first used; GUILLOTIN, MEDICIN POLITIQUE, Imagine un beau matin Que pendre est inhumain Et peu patriotique. Aussitot II lui faut Un supplice, Qui sans corde ni pot'eau Supprime du bourreau L'office. C'est en vain que Ton public Que c'est par la jalousie D'un suppot Du tripot D' Hippocrate, Qui d'occire impunement Meme exclusivement, Se flatte. Le Romain Guillotin Qui s'apprete, Consulte gens du metier Barnabe et Chapelier, Meme le coupe-tete, Et sa main Fait soudain La machine Qui simplement nous tuera Et que Ton nommera Guillotine. INTIMIDATION AND TORTURE 59 as, in his enthusiasm, he explained to his colleagues. It is an instrument substantially like a pile-driver, with grooved posts, between which a heavy axe falls with sufficient force to cut off a human head. The criminal, tightly bound, is laid with his face down- ward and his neck resting in a curved depression in the block which receives the knife; the blade strikes him from behind, and his head falls into a basket. It was first tried upon three cadavers conveyed from the hos- pital to the prison at Bicetre, in Paris, for that purpose. The son of Samson, the notorious executioner, said to his father, at this preliminary trial, that it would in- terfere with their business; to which the old man re- sponded (with prophetic vision, alas!) that it would make cutting heads off so easy, that the trade would be brisker than ever. This vras on the 17th of April, 1792; a week later, it was set up on the Place de Greve. Originally the blade was at right angles with the upright standards between which it moved, but the king suggested that it would work better, if set diago- nally ; and, nine months afterward, he benefited by his own suggestion. The reception of the new invention by the mercurial people of France was shocking in its levity. It was the theme of numberless songs and jests. Models of it were made in wood, in ivory, in silver, and in gold, and sold as parlor ornaments and toys for chil- dren. A somewhat fashionable closing ceremony with which to wind up a dinner in an aristocratic house was for the noble hostess to produce a figurante supposed to represent Danton, Robespierre, or Marat, and with a toy guillotine cut off his head, when, instead of blood, a tiny stream of crimson perfume flowed from the 60 PUNISHMENT AND REFORMATION neck, in which the ladies at the table hastened to dip their dainty lace handkerchiefs. The revolutionists, on the other hand, adopted it as a seal. Hanging is another very ancient method of execu- tion. Haman, you remember, was hanged on the gallows which he erected for Mordecai. Constantine the Great practised it. In France the criminal was con- veyed to the gibbet seated in a cart, with his back to the horse, his confessor at his side, and his executioner be- fore or behind him. In this order he was taken through the crowded streets. On arrival at the place of execu- tion, he was made to ascend a ladder leading up to the gallows; the executioner preceded him, mounting backwards, so as to assist the prisoner. The con- fessor followed. After he had confessed him upon the scaffold, three ropes were attached to the prison- er's neck, two of them knotted, and the third intended to swing him off the ladder. The confessor then descended to the ground, leaving the culprit standing on the ladder, and the executioner upon the platform above him. The latter pushed away the ladder with his foot, swung the prisoner off, and then, horrible to relate, taking hold of the rope in order to steady him- self, he jumped upon the prisoner and kicked him to death. In England, however, the cart was driven out from under, and the man's neck was broken by the fall. Executions in France are public. In England the law now requires them to be private ; and in New- gate prison not even the official witnesses required to certify the death see the contortions of the expiring convict, whose body falls into a sort of well, out of sight of all but the executioner and the attending INTIMIDATION AND TORTURE 61 physician. When the physician announces that death has taken place, the witnesses come forward, identify the corpse, and sign the necessary attestation. Drawing was a mediaeval punishment by which a man was dragged to death by horses. Brunehilda is said to have been executed in this manner. When a prisoner was drawn and quartered, he was attached to a platform facing the sky, by two iron bands, one around his chest and arms, the other around his thighs. The weapon with which he had killed his murdered victim was placed in his hand, which was filled with sulphur, tied, and the sulphur fired, so that his hand was burned off him. Next, he was torn with hooks upon the breast and legs, and a composition of melted lead, rosin, wax, and sulphur poured into the wounds. After that, ropes fastened to whippletrees were attached to his arms and legs, each rope secured by two sailor-knots, and the horses attached to the whippletrees pulled him to pieces. A paling was erected around the spot to keep off the eager, curious crowd. The mangled remains were burned in a fire. This mode of execution was reserved for offenders guilty of lese-majesty. One of the most terrible exe- cutions upon record was that of Damiens, a poor fool who attempted, it was said, to assassinate Louis XV. He pierced his side slightly with a knife. The king received the attack with courage. Damiens, when questioned as to his motive, said that he did not want to kill Louis, but to give him a warning — to prick him a little, because he was a great tyrant, in order to show him what might happen. All of the parliaments of France were invited to make suggestions as to the 62 PUNISHMENT AND REFORMATION manner in which the assassin should be tortured. It would torture the reader to quote the many recommen- dations gravely submitted in response to this royal request. Pending a decision, in order to prevent his escape, he was tied to an iron bed. The boot was finally agreed to be the most terrible form of suflFer- ing, and he was subjected to it for an hour and a half, then taken away to be drawn and quartered, but his sinews were so tough, that he was drawn for an hour, without avail, and a knife had to be used with which to quarter him, while still alive. A woman who was looking on, seeing, from the balcony where she stood, the frantic efforts of the horses to pull harder, exclaimed, "Oh, the poor horses !" Breaking on the wheel, authorized by Francis the First in 1534, was really a way of pounding a man to death. The wheel was in the form of a cross of Saint Andrew, with four arms of equal length sloping slightly toward the point of intersection, upon which the prisoner was laid, with his face upward. Supports were nailed to the arms of the cross, so as to come half way between the shoulder and the elbow, the elbow and the wrist, the hips and the knees, and the knees and the ankles. With a heavy iron bar the upper and forearms, the thighs and shinbones, could each be broken into three pieces. After being thus rudely disjointed, the body was bent backward, until the head and heels met, when it was attached to a wheel, with the hubs sawed off, which was rapidly revolved on a pivot, until the sufferer was relieved by death. John Calvin is sometimes reproached with theological asperity for having burned Servetus at the INTIMIDATION AND TORTURE 63 stake, as if his religious opinions had prompted that inexcusable cruelty, instead of its being a custom of the age in which Calvin lived. But, as an ofifset, it may be mentioned that, less than a century and a half ago, Vol- taire, who represents the opposite pole of religious thought, in one of his private letters, expresses his gratitude to God for the breaking of the priest Mala- creda upon the wheel, and in another the comfort which it was to him to hear that three Jesuits had been burned alive at Lisbon. This form of punishment was known in Greece, where it was applied to slaves. In Athens it was proposed to break Phocion. This was really a form of beating to death, accomplished by the natives of South Africa in a more primitive way, with clubs. By the law of the Twelve Tables laesa majestas was punished by flogging to death. As to crucifixion, Darius is said to have crucified, on one occasion, two thousand Assyrians, and, upon another, three thousand Babylonians at once. Regulus was crucified, but not until he had been rolled down hill in a barrel driven through from the outside with iron spikes. On the cross his eyelids were removed, that his eyes might be exposed continuously to the sun. There are two modes of empaling, one by forcing a stake or spear through the prisoner's body and pinning him to the ground, the other by forcing his body upon a sharpened point. The latter is closely allied to cruci- fixion. In Siam a stake is driven longitudinally through the criminal's body, and the body is. then ele- vated upon this stake, which is firmly driven into the ground. Suspension on hooks has been practised in 64 PUNISHMENT AND REFORMATION the West Indies ; also, for abjuring the Mohammedan religion, in Algeria and in India. Strangulation, as described in Homer's "Odyssey," appears to have been by hanging. In Sparta it was effected by two executioners, who pulled at the oppo- ^ site ends of a rope which encircled the victim's neck. Different modes of execution are looked upon as more, or less infamous in different countries ; in Turkey the bow-string is reserved for the nobility. In China, too, strangulation is regarded as more honorable than de- capitation. The Spanish garrote is a mode of strangu- lation, no longer accomplished, as formerly, by ropes and cords, but by enclosing the neck in an iron ring, which can be tightened from behind by a screw, which is turned until the point of it pierces the spinal column. Strangulation before burning was an act of mercy. Death by suffocation is mentioned in the Old Testa- ment ; Hazael the Syrian murdered Benhadad by dip- ping a thick cloth in water and spreading it over the king's face. Also in the Apocrypha, where it is said that Antiochus Eupator put Menelaus to death, at Berea, " as the manner is in that place." The Bereans had built a tower fifty cubits high, full of ashes, which could be stirred by some round instrument, possibly a wheel, "hanging down on every side into the ashes." Into this ash-heap Menelaus was thrown, as a punish- ment for sacrilege. Prisoners have also been suffocated by smoke, especially that given off by burning sulphur. Marshal Pelissier destroyed a force of Algerians who had taken refuge in a cave by smoking them to death. Drowning is, of course, a mode of suffocation. Jesus Christ possibly alludes to the legal punishment of INTIMIDATION AND TORTURE 65 drowning in Matthew 18:6. The story of the drown- ing of the Duke of Clarence is thus quaintly told by Sir Thomas More in "The Pitiful Life of King Edward the Fifth." "George, Duke of Clarence, was a goodly and well-featured prince, in all things fortunate, if either his own ambition had not set him against his brother, or the envy of his enemies had not set his brother against him ; for were it by the Queen or the nobles of her blood, which highly maligned the King's kindred (as women commonly, not of malice, but of nature, hate such as their husbands love), or were it a proud appetite of the Duke himself intending to be King, at the leastwise, heinous treason was laid to his charge, and finally, were he in fault, or were he faultless, attainted was he by Parliament, and judged to death; and thereupon hastily drowned in a butt of Malmsey within the Tower of London. Whose death King Edward (although he commanded it), when he wist it was done, piteously he bewailed and sorrowfully repented it." The manorial pits for drowning or half drowning women, like the manorial gibbets for hanging men, were highly prized prerogatives of the early English nobility. Burying is the terrene equivalent of drowning. When the Third Crusade started from Europe for the Holy Land, certain rules for the government of its members were adopted, and it was announced that their violation would be punished, if at sea, by throw- ing the offender into the water, but if on land, by in- terring him alive. In Rome vestal virgins guilty of a breach of the vow of chastity were thus buried. Sefi, the eighth Shah of Persia, whose name is a synonym for cruelty, believing that an unsuccessful at- tempt had been made to poison him, buried forty of the women of his seraglio, including his mother. Tacitus 66 PUNISHMENT AND REFORMATION records the fact that lewd women were buried alive, by the Gauls, in swamps. Jews were buried by Pepin of France. In some parts of Germany, even since the beginning of the last century, this was the penalty for infanticide. In 1347, two counterfeiters were boiled alive at Paris. This penalty for counterfeiting was in force in the sixteenth century. The boiling was sometimes done in oil. French law tolerated it until 1791, though it had long fallen into practical disuse. Under Henry VIII., of England, poisoning was for ten years re- garded by law as treason, and it was punishable in this manner. The Bishop of Rochester's cook, a man named Rose, was publicly boiled at Smithfield, in 1630, for throwing poison into the yeast-tub in the kitchen of the episcopal palace. His occupation may have suggested the mode of his death. Stoning, common among the ancient Hebrews, was regarded by them as the most infamous of punish- ments. The execution took place outside of the camp or city, and the witnesses were required to throw the first stone, but all the people took part in the cere- mony, ^schylus was condemned to suffer death by stoning for having written a tragedy which was thought to be irreverent, but the sentence was not executed. Among the Romans this was a military punishment. Stoning was forbidden by Constantine. A law of ^thelstan, in the tenth century, prescribed ' it as the punishment of male slaves for theft; the thief was stoned by eighty fellow-slaves, and if any of them missed the mark three times he was thrice whipped. INTIMIDATION AND TORTURE 67 Pressing to death was a mode of execution known to the Carthaginians. The instrument of torture known as the scavenger's daughter, in use in the Tower of London, will be described below, under "Torture." The judgment of penance, referred to at the close of the last chapter, was in these words: "That you be taken back to the prison whence you came, to a low dungeon into which no light can enter; that you be laid on your back on the bare floor, with a cloth around your loins, but elsewhere naked ; that there be set upon your body a weight of iron as great as you can bear — and greater ; that you have no sustenance, save, on the first day three morsels of the coarsest bread, on the second day three draughts of stagnant water from the pool nearest to the prison door, on the third day again three morsels of bread as before, and such bread and such water alternately from day to day until you die." Among the punishments mentioned in the Epistle to the Hebrews is sawing asunder, or "dichotomy," which is the penalty for horse-stealing in Tartary, for poison- ing in Persia, and was formerly, with obvious fitness, inflicted for bigamy in Switzerland. The hodoveresta, prescribed by Zoroaster, the Persian lawgiver, against incompetent physicians and mothers who killed their offspring, was very similar to the Chinese penalty en- titled ling-chee or "cutting into a thousand pieces," while still alive. Compare with the horrible torture just mentioned the sentence pronounced, in the reign of Edward the Second, against the Earl of Carlisle, for high treason: "The award of the court is that you be drawn, and 68 PUNISHMENT AND REFORMATION hanged, and beheaded; that your heart, and bowels, and entrails, whence came your traitorous thoughts, be torn out, and burnt to ashes, and that the ashes be scattered to the winds ; that your body be cut into four quarters, arid that one of them be hanged upon the Tower of Carlisle, another upon the Tower of New- castle, a third upon the Bridge of York, and the fourth at Shrewsbury; and that your head be set upon Lon- don Bridge,, for an example to others that they may never presume to be guilty of such treason as yours against their liege lord." Precipitation from a height, another of the punish- ments forbidden by Constantine, was the form of death inflicted upon ^sop, the writer of fables. Pygmalion, King of Tyre, visited it upon two priests guilty of hav- ing eaten the flesh of human sacrifices. In the history of the Maccabees it is written that Jewish mothers, with their infants in their arms, were thrown from the walls of Jerusalem. The Tarpeian rock at Rome was a place set apart for this mode of execution, chiefly practised upon slaves guilty of theft. The Carthaginian general, Hasdrubal, before throw- ing his Roman prisoners from a rock, flayed them alive. Excoriation is named as a penalty in the laws of Henry the First of England. The general reader will observe occasional references in historical and other works to the ancient practice of nailing up human skins where they could be seen by the public, and the minds of those predisposed to crime be stricken with terror at the hideous spectacle. Deserters from the army are, since the invention of fire-arms, usually shot to death. The fact is perhaps INTIMIDATION AND TORTURE 69 not generally known that, in some at least of the Western territories, convicts sentenced to endure capi- tal punishment are given their choice whether , they will be hung or shot. The author was shown, in a territorial prison, the location of the convict against the wall, and the spot where the tent is pitched in which the armed guards are concealed ; to one or more of them are given guns loaded with blank cartridges. The spot where the Paris communists shot Arch- bishop Darboy, within prison walls, is shown to visi- tors, and excites much interest; the marks made by the bullets are still visible. The ancient equivalent form of death was by piercing the victims with jave- lins, which was also a military punishment. Prisoners have sometimes been starved to death, either by withholding from them all food, or by feed- ing them on bread and water, or other provisions known to be inadequate to sustain life. The Athenians forced Socrates, Phocion, and many others, to drink a poisonous decoction, and so to end their own lives. Years afterward, statues were erected to both these heroes; and the remains of Phocion were brought back from Megara and interred in Athens, at the expense of the public treasury. Somewhat similar was the ancient Moslem punish- ment for wine-drinking, namely, pouring melted lead down the offender's throat. Daniel was thrown, by Darius the Mede, into a den of lions. In Siam prisoners are sometimes thrown to crocodiles. The Roman arena was the place of mar- tyrdom of thousands of the early Christians; the re- mains of Roman amphitheatres may still be traced in 70 PUNISHMENT AND REFORMATION Great Britain. In China faithless wives are given to elephants to be by them trampled under foot. This was the mode of punishment of deserters adopted by Hamilcar, the Carthaginian general. Criminals have also been thrown into dens of ser- pents, or tied down in forests where it was certain that they would be bitten by serpents. The Roman penalty for parricide at one time consisted in sewing up the rebellious child in a leather sack, together with a live serpent, a cock, and a goat, and throwing the sack and its contents into the sea. Plutarch, in his memoir of Artaxerxes, describes one of the most terrible of all recorded punishments, which was inflicted upon Mithridates, by order of the Persian monarch, for boasting, when overcome with wine, that he, and not Artaxerxes, had in truth slain the mighty Cyrus. He was encased in a coffin- like box, from which his head, hands, and feet pro- truded, through holes made for that purpose; he was fed with milk and honey, which he was forced to take, and his face was smeared with the same mix- ture; he was exposed to the sun, and in this state he remained for seventeen days, until he had been de- voured alive by insects and vermin, which swarmed about him and bred within him. Barbarous as are these tales of cruelty and hatred, was the blowing of the sepoys from the mouths of British cannon in India any less shocking? Many travellers have seen, in the torture chamber at Nuremberg, the figure of a Woman constructed in such a manner as to embrace a victim thrust into her arms, and pierce him to death with knives, A similar INTIMIDATION AND TORTURE 71 instrument was invented by Nabis, a Spartan tyrant, who named it the Apega, after his wife. SECONDARY PUNISHMENTS Mutilation of the body is an ancient penalty known to the Egyptians, who cut out the tongues of those who betrayed the secrets of the state, and cut off the hands of forgers and counterfeiters, with an apparent purpose in both cases to make the punishment fit the crime, and, at the same time, effectually to prevent its repetition; the Egyptian penalty for rape was of a similar nature. When Judah and Simeon cut off the thumbs and great toes of Adoni-bezek, he said, "Threescore and ten kings, having their thumbs and their great toes cut off, gathered their meat under my table: as I have done, so God hath requited me." The Philistines, before setting Samson to grind in the prison, put out his eyes. Mutilation was com- mon among the Persians. Eight hundred Greek cap- tives presented themselves before the victorious Alex- ander, with a petition that he would avenge their wrongs: some of them had lost their hands, others their feet, others their noses and their ears; their faces had then been marked with hot irons, and in that pitiful condition they had been delivered to the scorn of the Persian people. The Emperor Constan- tine forbade this practice, characterizing it as one of "the cruelties of the ruthless barbarians." A law of Canute, the Danish king of England, evidently de- signed to provide a humane substitute for capital punishment, ordained: "Let his [the offender's] hands be cut off, or his feet, or both, according as 72 PUNISHMENT AND REFORMATION the deed may be. And if he have wrought yet greater wrong, then let his eyes be put out and his nose and his ears and his upper lip be cut off, or let him be scalped, whichever of these shall counsel those whose duty it is to counsel thereupon, so that punishment be inflicted, and also the soul preserved." Mr. Pike says that William the Conqueror or his council "enunciated the principle that malefactors so debased as those of England should not suffer death, because it was better that they should, as cripples, serve for a warning to the ill-disposed," but that the Synod of London, in 1075, under Lanfranc, the wise and gentle Italian archbishop of Canterbury, expressed disapproval of this maxim. Under Henry I., "the chief moneyers throughout the whole of England were convicted of making pence in which there was base metal illegally alloyed with the silver. By the king's command they were all brought to Winchester, and there suffered in one day the loss of their right hands and of their manhood." The spectacle of maimed offenders at large did not have the deterrent effect expected of it; on the contrary, it provoked imitation. "The brutal- izing effect which it had upon the whole population can hardly be conceived, in this modern age of refine- ment. In the midst of the general lawlessness every man was, when he had the power, a law unto himself, and inflicted upon his enemy the punishment which the law of the land destined for the evil-doer. Maim- ing, that is to say, depriving a human being of a member, was consequently one of the commonest of offences — for which the law provided a wholly in- adequate remedy in the appeal of mayhem." Mayhem INTIMIDATION AND TORTURE 73 was a simple trespass until the reign of Henry IV., who "assented to a statute which, for the first time, declared that it was a felony to cut out the tongue or put out the eyes of the king's subjects, of malice aforethought. It was not, for many a generation afterward, a felony to slit the nose, to cut off the nose or lip, or to cut off or disable any of the limbs." Not until the passage of the "Coventry Act" in the reign of Charles II., was all mayhem rnade felonious. Mr. Pike, from whom the foregoing quotations are taken, gives the following highly pictorial description of the ceremonial attending the loss of the right hand, under Henry VIII.:— "For merely striking, so as to shed blooVl, the loss of the right hand was the penalty, as it had been for many crimes before the Conquest. The offender, as in cases of murder in the court, was tried before the Lord Great Master, or the Lord Steward of the Household, and when found guilty, suffered according to a most remarkable and carefully devised ceremony. He was brought in by the Marshal, and every stage of the proceedings was under the direction of some member of the royal household. The first whose services were required was the Serjeant of the Woodyard, whw brought in a block and cord, and bound the condemned hand in a convenient position. The Master Cook was there with a dressing knife, which he handed to the Serjeant of the Larder, who adjusted it and held it ,^ill execution was done.' The Serjeant of the Poultry was close by with a cock, which was to have its head cut off on the block by the knife used for the am- putation of the hand, and the body of which was afterward to be used to 'wrap about the stump.' The Yeoman of the Scul- lery stood near, watching a fire of coals, and the Serjeant Farrier at his elbow to deliver the searing-irons to the surgeon. The Chief Surgeon seared the stump, and the Groom of the Salcery held vinegar and cold water, to be used, perhaps, if the patient should faint. The Serjeant of the Ewry and the Yeoman of the Chandry attended with basin, cloths, and towels for the surgeon's use. After the hand had been struck off and the stump seared, 74 PUNISHMENT AND REFORMATION the Serjeant of the Pantry offered bread, and the Serjeant of the Cellar offered a pot of red wine, of which the sufferer was to partake with what appetite he might." The following account of the case of William Prynne, a barrister of Lincoln's Inn, in the time of Charles I., is borrowed from Hallam: — "Prynne, a lawyer of uncommon erudition, and a zealous puri- tan, had printed a bulky volume, called 'Histriomastix,' full of invectives against the theatre, which he sustained by a profusion of learning. In the course of this he adverted to the appearance of courtesans on the Roman stage, and by a satirical reference in his index (women actors notorious whores), seemed to range all female actors in this class. The Queen, unfortunately, six weeks after the publication of Prynne's book, had performed a part in a mask at Court. Prynne was already obnoxious, and the Star Chamber adjudged him to stand twice in the pillory, to be branded in the forehead, to lose both his ears, to pay a fine of £5,000, and to suffer perpetual imprisonment." Timothy Penredd, who was in 1570 convicted of counterfeiting the seal of the court of Queen's Bench, and forging writs of arrest, was sentenced to be placed in the pillory in Cheapside, on two successive market-days, with one ear nailed each day to the post, in such a manner that he would have to tear it off to get away.^ 1 James Howell, in his "Familiar Letters," written in the first half of the seventeenth century, relates an anecdote which well illustrates the general fear of this form of mutilation. He says : "As I remember, some years since there was a very abusive satire in verse brought to our King; and, as the passages were a read- ing before him, he often said, 'That if there were no more men in England, the rogue should hang for it.' At last, being come to the conclusion, which was (after all his railing), — ' Now God preserve the King, the Queen, the peers, And grant the Author long may wear his ears;' this pleased his' Majesty so well, that he broke into a laughter, and said, 'By my soul, so thou shalt, for me. Thou art a bitter, but thou art a witty knave !' " INTIMIDATION AND TORTURE 75 Louis XV. of France placarded the camp at Com- piegne ii;i 1765 with the announcement, that any sol- dier who should blaspheme the name of God, the Virgin, or any of the saints, should have his tongue pierced with a hot iron. Another form of disgraceful marking was by branding. In Athens, slaves were branded with the names of their masters; soldiers, with those of their generals. The Athenians branded their prisoners of war. In the war with Samos, the Samians, having gained a victory, retaliated by branding their captive adversaries with an owl, the bird sacred to Minerva, with the effigy of which the coins of Athens were stamped. Under Roman law the brand was placed upon the forehead; but Constantine, who was a humane ruler, and introduced many reforms in crimi- nal jurisprudence, ordained that it should be upon the hand or leg, in order that it might be less con- spicuous. In France, the shoulder was the spot se- lected. The ancient brand was the fleur-de-lis, the royal emblem; but afterward it was the initial of the crime committed, as "V" for voleur (thief). That the mark made by the branding-iron might be plainer and more permanent, the skin was first scraped, so as to insure the burning of the blood which collected on the surface of the wound. The English brutality in this, as in many other forms of punishment, is shown in the treatment of the Patarines, a heretical sect of the twelfth century, whose foreheads were seared with a hot iron. They were publicly whipped, and every Eng- lishman was forbidden to give them food or shelter, so that they perished of cold and hunger. Under 76 PUNISHMENT AND REFORMATION Edward VI. it was ordered that vagabonds should be branded "V." A vagabond thus marked was to be ad- judged the slave, for two years, of any one who would take him. If he ran away, he was to be branded "S," and adjudged a slave for life ; if he ran away again, he was to be hanged. If no one would take him, he was to be branded "V" upon the breast, and sent to his native place, there to be compelled to labor upon the highways, or at other public work, or as a common slave from man to man. If he misrepresented the place of his birth, he was to be branded in the face. Brawlers in churchyards were branded "F" on the cheek. During several generations, persons who had taken benefit of clergy were burned on the brawn of the thumb with the initial of the offence with which they were charged, in order that they might not plead clergy a second time; but in 1698 such persons were, by a new statute (which was repealed eight years later) directed to be burned in the left cheek. Persons hav- ing in possession filings or clippings of current coin were branded "R" on the right cheek. Branding was abolished in England under George III. Flogging was authorized by the Mosaic code. "The judge shall cause him to lie down, and to be beaten be- fore his face, according to his fault, by a certain num- ber. Forty stripes he may give him, and not exceed; lest if he should exceed, and beat him above these with many stripes, then thy brother should seem vile unto thee." Under Roman law, a freeman could not be beaten with stripes; yet flogging was authorized as a punishment for aggravated theft; but the thief had first to be declared servus poena — the slave of the INTIMIDATION AND TORTURE 71 penalty. Paul's indignant protest, "They have beaten us openly, uncondemned, being Romans," will here re- cur to many readers. This was also a punishment under Anglo-Saxon law. Petty thieves were flogged in the reign of George III. ; men in public, women in private. Whipping for common law misdemeanors has never been formally abolished, though it is not administered where it is not authorized by statute. The lash is now regarded less as a retributive penalty than as a means of enforcing discipline. Some persons have confidence in its deterrent influence, approve of the retention of the whipping-post in Delaware, and advocate the enactment of laws reviving it elsewhere for certain offences, especially for wife-beating. As to this point, the following observations of Mr. Pike are well worthy of consideration: — "There is, no doubt, a dramatic fitness in punishing the de- liberate infliction of bodily pain by the deliberate infliction of bodily pain in return. And if the maxim 'An eye for an eye and a tooth for a tooth' is a proper guide for lawgivers in a Christian country in the nineteenth century, there remains nothing more (to be said, except that the 'cat' is, in many cases, too merciful an instrument. If, however, the object of punishment is not vengeance, but the prevention of breaches of the law, it seems useless, so far as example is concerned, to flog a prisoner within the prison walls. The whole power of such a deterrent as flog- ging (if it is to be regarded as a general deterrent) must be .in the vividness with which it can be presented to the imagination of persons who have a tendency to commit, but who have not yet committed, the offences for which flogging may be legally in- flicted. But the most ready manner of bringing it home to the mind of the populace is by exhibiting it in public, which, as has already been shown, has the very opposite effect from that which is desired. The fact that the lash has "been administered to a convict is now and again brought to the knowledge of the pubHc by the press, and sometimes with the aid of illustrations. But the 78 PUNISHMENT AND REFORMATION impressions made, so to speak, by such exhibition at second-hand, cannot be so forcible as that made by the old form of exhibition at first-hand; and in proportion as it becomes effectual at all, it must be attended by the effects which are produced by all brutal punishments inflicted caram populo. It is far from an agreeable task to watch the face and figure of the flogger as he executes the sentence ; and few would deny that the moral effect upon him must be as great as upon the criminal, whom it is his duty to whip. The state, when it sanctions the use of the lash, causes a human being to do just such an act of violence as it desires to check; it must either recognize the use of the 'cat' as an art of which it is prepared to employ the professors, or it must, on each particular occasion, offer a reward to some one to come into prison and commit a violent assault. It follows, therefore, that even if every criminal who is flogged is deterred from repeating his offence, the gain, small as it is, has been purchased at a very high price — indeed, at the expense of consistency." The knut and the bastinado are savage forms of flog- ging. The knut in Russia has been abolished, but its place has been taken by the plet, a sort of heavy cat. The status of a prisoner is in many respects analo- gous to that of a slave. War may be carried on in the open field, vi et armis, or it may be reduced to a purely legal contest in the courts. In either case the van- quished party has to bear the costs and the conse- quences. From the condition of a prisoner of war to that of a slave is but a step ; why should the condition of a convict be exempt from the liabilities incident to a captive in battle ? The conqueror can dispose of the conquered at his pleasure. Compulsory labor is there- fore a natural sequel of the condition of servitude, whether military or penal. The Israelites in Egypt were neither convicts nor captives, yet Pharaoh set them to making brick under cruel taskmasters. To be sent to the mines was the severest of Egyptian INTIMIDATION AND TORTURE 79 penalties, except that of death. Mines and quarries were worked by convicts in Greece and in Rome. The conquered Lesbians were compelled to dig deep ditches around the walls of Samos. Sabacos substituted for the penalty of death, compulsory labor for life. Sesostris made prisoners of war dig canals and haul stones for the construction of the temples. Prisoners of war were by the Athenians compelled to serve as rowers in vessels of war. This is perhaps the first indication in history of the use of the galleys for punishment, which in the Middle Ages was so com- mon, that countries' without seacoast of their own sold prisoners to countries which had. Venice was natu- rally a principal buyer in this unique slave-market. Maria Theresa, that noble woman who put an end to so many of the barbarities prevalent before her day, has the honor of having, in 1762, forbidden this practice also. A modified form of slavery survives wherever prison labor is sold to private persons for their pecu- niary profit. Interdiction and civic degradation are other incidents of the loss of personal liberty. In modern times and in civilized nations they go no farther than the tem- porary or permanent denial to a convict of his proper rank, or of the right to vote, to hold office, to serve on a jury, to carry arms, and (in France) to wear a decoration or be employed as a teacher. But, as in the case of the Patarines cited above, the denial might extend to rights essential to the preservation of life. In the early history of Rome, a citizen might be inter- dicted the use of fire and water. The purpose of this was to compel him to exile himself, since he could 80 PUNISHMENT AND REFORMATION not legally be banished. Draco, the Athenian law- giver, excluded murderers from the temples, the games, from public banquets and assemblies. The bills of attainder for treason with which the records of the English Parliament are stained (of which there was probably not one which was not the offspring of parti- san hatred) worked corruption of blood, the effect of which was that descent could not be traced through the person whose blood was corrupted; and thus the innocent offspring of men guilty of none but political crimes were deprived of the hereditary right to their ancestral estates. Attainder and corruption of blood followed sentence of death in all cases of treason or felony. But Parliament could try alleged offenders in their absence, and condemn them upon any evidence which they chose to accept as sufficient. The great Act of Attainder passed by the Irish Commons, to which James II. attached his signature, contained between two and three thousand names, at the top of which was half the peerage of Ireland. Macaulay says of it, that "Any member who wished to rid himself ojE a creditor, a rival, a private enemy, gave in the name to the clerk at the table, and it was generally inserted without discussion." Even dead men were attainted ; Oliver Cromwell, for instance. Parliament resolved, under Charles II., in 1660, that "the carcasses of Oliver Cromwell, Ireton, Bradshaw, and Pride should be taken up, drawn on a hurdle to Tyburn, and there hanged up in their coffins for some time, and after that buried under the gallows." The confiscation of estates was not merely an act of manifest injustice to heirs, living and yet unborn, but INTIMIDATION AND TORTURE 81 an obvious inducement to judicial murder. Men ac- cused and convicted of treason, by their rivals for royal favor, were robbed of their property for the enrich- ment of their political enemies. The same result was reached by the heavy fines imposed by the Star Cham- ber, where, as Hallam says, "Those who inflicted the punishment reaped the gain, and sat, like famished birds of prey, with keen eyes and bended talons, eager to supply for a moment, by some wretch's ruin, the craving emptiness of the exchequer." He further ob- serves that "The strong interest of the court in these fines must not only have had a tendency to aggravate the punishment, but to induce sentences of condemna- tion on inadequate proof." Under the feudal system, escheats to the crown constituted a large portion of the revenues of the Norman kings of England. Whatever else may be said of feudalism, it was a gigantic scheme of extortion in return for very imperfect protection, by which the powerful and the rapacious built up their fortunes at the expense of their dependants; and the king was the chief extortioner, against whose demands not even the grand seigneurs could protect themselves. Thus the system contained within itself the providen- tial seed of its own destruction. The rapacious of our time rob their victims by other methods, but their ultimate overthrow is probably involved in the very audacity of the means by which their temporary power to despoil their fellowmen has been attained. Closely connected with civic degradation were the insults heaped upon offenders, in their public exposure both before and after death. The pillory and the stocks are the forms of exposure best known to us. 82 PUNISHMENT AND REFORMATION and need no description. The continental equivalent for them was the car can, a ring closed by a lock, by means of which a criminal was attached by the neck to a chain, and so fastened to a post. This is the Latin echo of an ancient Persian device; namely, an acute triangle, in the narrow angle of which the pris- oner's neck was confined, while his hands were ex- tended and attached to the opposite side ; in this posi- tion he could walk about. The special objection to the pillory and the carcan was that the populace had the "right to pelt victims thus exposed with decayed eggs and fruit, which was unpleasant, and with stones, which was dangerous. The carcan was abolished in France in 1832, and the pillory in England in 1837. The Spanish mantle (of which there is an engraving in John Howard's book) was a cask, with holes cut through the sides for the prisoner's arms, and through the top for his head ; he wore it like a coat, and in this ridiculous costume was marched around the town at a cart's tail. Scolds were formerly ducked in a pond by means of a ducking-stool, of which there were various patterns, the essential thing being a seat, to which the woman was strapped, at the end' of a long lever oper- ated from the bank, to the rude delight of the spectators.^ They were also forced to wear the brank, 1 In "The Little Manx Nation," by Hall Caine, a tale is told of Bishop Thomas Wilson, "half angel, only half man, the se- renest of saints and yet almost the bitterest of tyrants." Kath- erine Kinrade was a poor ruin of a woman, who, being mentally defective, gave birth in succession to three illegitimate children. For the first, the Bishop made her do penance in a white sheet at the church doors. For the second, he committed her for twen- ty-one days to his prison at the Peel. "It is a crypt of the cathe- dral church. You enter it by a little door in the choir, leading to a tortuous flight of steep steps going down. It is a chamber cut INTIMIDATION AND TORTURE 83 which was a cage-like helmet or mask of iron, with a triangular piece entering the mouth and pressing upon the tongue, as a delicate reminder of the proper use of that unruly member. In the Middle Ages a favor- ite punishment for adulteresses was to scourge them naked through the streets. There were many ways of exposing the dead to derision. Sometimes their bodies were thrown into the streets to be devoured by dogs. Oftener their heads were elevated upon poles. The head of the unfortunate Princess of Lamballe, the out of the rock of the little island, dark, damp, and noisome. A small aperture lets in the Hghd, as well as the sound of the sea beating on the rocks below. The roof, if you could see it in the gloom, is groined and ribbed, and above it is the mould of many graves, for in the old days bodies were buried in the choir." The third time, he ordered her to be dragged through the sea by a rope tied to the stern of a boat. "After undergoing the punish- ment the miserable soul was apparently penitent, 'according to her capacity,' took the communion, and was 'received into the peace of the church.' Poor human ruin, defaced image of a woman, begrimed and buried soul, unchaste, misshapen, incor- rigible, no 'juice of God's distilling^ ever 'dropped into the core of her life;' to such punishment was she doomed by the tribunal of that saintly man, Bishop Thomas Wilson! She has met him at another tribunal since then ; not where she has crouched before him, but where she has stood by his side. She has carried her account against him to Him before whom the proudest are as chaff. "None spake, when Wilson stood before The Throne; And He that sat thereon Spake not; and all the presence-floor Burnt deep with blushes, and the angels cast Their faces downward. — Then, at last. Awe-stricken, he was ware How on the emerald stair A woman sat divinely clothed in white. And at her knees four cherubs bright That laid Their heads within her lap. Then, trembling, he essayed To speak — 'Christ's mother, pity me!' Then answered she, 'Sir, 1 am Katherine Kinrade.' " 84 PUNISHMENT AND REFORMATION favorite of Marie Antoinette, was carried by a mob about the streets of Paris, placed on the counter of a cabaret, where wine was poured down the throat, and the Queen was loudly called to the window of her cell in the Temple to gaze with horror upon the bloody spectacle, but was humanely prevented from respond- ing to the call. Exposure in chains after death was once common. Bunyan saw, in his dream. Simple, Sloth, and Presumption "hanged up in irons a little way off on the other side." These irons were frames rudely corresponding to the shape of the body, so contrived as to hold it until decomposition was com- plete, and only the skeleton remained bleaching in the sun.^ The last man to hang in England was a book- binder named Cook, in 1834, at Leicester. That year, by William TV., hanging in chains was forbidden. A singular tale is related by Plutarch of the beneficial 1 The following description of chains still preserved at Rye, England, is borrowed from Notes and Queries '{siKih series, v. 8, p. 183). "To_ begin at the top, we have a swivel loop. This is obviously for giving a rotatory as well as a swinging motion to the carcass. This swivel is fixed into a frame formed of two pieces of hoop iron bent over, like the wooden frame of a funeral garland, and of sufficient depth to reach from the top of a man's head to his shoulders ; the four ends are then riveted into a band encircling his neck. At opposite sides coarse chains are riveted on to the neck band and descend on either side, with four links, to about the middle of the chest. A second and much larger band is then passed through the fifth link and riveted in front. Then come three more links in the same continuous chains, and a third band, which, passing through a fourth link, is similarly riveted in front. The chains continue with three more links, a band is passed through a fourth and final link, and, being riveted m front like the others, nearly completes the framework for the body. At the back a strip of iron starts from the neck band and, bifurcating above the shoulders, descends in parallel lines; it is successively riveted to the three body bands, and being again united into a single strip, ends in a loop immediately below the bottom hoop. Thus the body framing is rendered rigid and com- plete. Suspended by a chain from the loop behind, and from the INTIMIDATION AND TORTURE 85 effect of exposure in Ionia, where an epidemic of sui- cide on the part of young girls was stopped by the passage of a law, directing the dead bodies of those who perished by their own hand to be hung naked on the public gallows ; the fear of infamy proved stronger than the fear of death. It remains only to mention exile, which is essentially an alternative for the death sentence, and has the same effect, so far as the community which desires to rid itself of a culprit is in question. Banishment may, however, be temporary or for life. It may also be compulsory, or, by a legal fiction, it may be voluntary, the criminal being liable to execution if he remains at home. It was by this subterfuge that transportation was instituted, as we shall see in a subsequent chapter. Transportation always involves the dilemma that the persons exiled are either good or bad citizens ; if good, lowest band in front, are separate frames for the legs, consisting of circular bands of different sizes for the knees and ankles, connected by vertical side strips riveted to them. These leg frames are so arranged, with extra length in the side pieces, that they can be taken up or let down, according to the length of the legs of a body within the chains. It should also be noted that the body bands are punched with holes, like a leather strap, so that they can be tightened or let out, according to the size re- quired. This seems to indicate that the same chains were used over and over again, but that it was necessary, for other reasons, that the chains should fit." Another correspondent of the same periodical thinks that the first instance of an executed person hanging in chains must have been in 1381, and he quotes Sir H. Chauncey's "Hist. Antiq. of Hertfordshire" : "Soon after the King came to Easthamsted, to recreate himself with hunting, where he heard that the Bodies which were hanged here were taken down from the Gallowes and removed a great way from the same; this so incensed the King, that he sent a writ, tested the 3d of August, Anno 1381, to the Bailiffs of this Borrough, commanding them upon sight thereof to cause chains to be made, and to hang the Bodies in them upon the same Gallowes, there to remain so long as one Piece might stick to another, according to the Judgment." 86 PUNISHMENT AND REFORMATION they are a loss to their native country ; but if bad, that country has no right to impose the burden of their presence upon an unwilHng community. Every com- munity is unwilling which has reached a stage of de- velopment at which it is self-sustaining without convict labor. The Romans divided banishment into deporta- tion and relegation; deportation was exile to a place specified, from which the banished were not allowed to depart ; but relegation was simple exile, and did not in- volve loss of citizenship. A form of banishment called ostracism (from the Greek word for a shell, because shells were used for balloting) existed at Athens, to which Aristides, Alcibiades, Themistocles, Xenophon, Thucydides, and Demosthenes were subjected. It was inflicted by popular suffrage at a special election, at which not less than six thousand votes must be cast, of which a majority must be in favor of the exile of the candidate from Athens for a period of ten years. Ostracism did not involve the confiscation of the exile's estate, as the ordinary form of banishment did. Outlawry may also be regarded as a sub-variety of exile. The mind dislikes to dwell upon acts of violence, such as have been described in this dark chapter of human nature at its worst. It is necessary, however, to know from what we have been delivered, in order to appreciate what we enjoy; and what has been tried and failed, in order to realize the folly of repeating useless experiments. It may seem to the young and inexperi- enced reader that human nature has changed and is no longer what it was, when these outrages were perpe- trated in the name of law and of religion. It is, alas. INTIMIDATION AND TORTURE 87 not true, as the veterans of our own Civil War could testify, or the residents upon or near the theatre of the conflict, if they chose to do so. And yet the self- restraint of both the great armies therein engaged is the pride of every American, one of the wonders of his- tory, and a tribute to the ethical influence of democratic institutions. Our social and political relations have changed, and therein is the secret of the growth of a humane and brotherly feeling among men, which is reflected in our laws and in their administration. The great lesson to be derived from the contemplation of the past is the obligation to vigilance and exertion, in order that what has been won at such fearful cost may not, at the dictation of civil or ecclesiastical tyrants, be wrested from our grasp. Among the victories to which allusion is here made must be accounted the inclusion in the French Declara- tion of Rights (1789), of the statement that "the right to punish is limited by the law of necessity" ; also the declaration by the Revolutionary Assembly in 1791, that "penalties should be proportioned to the crimes for which they are inflicted, and that they are intended, not merely to punish, but to reform the culprit." That Assembly relegated to oblivion the antiquated notion that imprisonment was merely a preventive measure, by which the prisoner was to be securely held until he could be suitably punished ; and it substituted for it the principle that imprisonment, in varying forms and de- grees, is itself a penalty of crime.^ It therefore dis- i"The Ordinance of Louis XIV., August, 1670, is the latest criminal code prior to the Revolution of 1789. The only penal- ties then permitted (and which are mentioned in the Ordinance) were: (1) Death; (2) torture; (3) the galleys for hfe, or for a 88 PUNISHMENT AND REFORMATION pensed with all the corporal punishments which the Monarchy had cherished and so fearfully abused. Credit must also be given it for having been the first governmental body to recognize police surveillance without imprisonment, as an adequate remedy, in many cases, for social disorder. TORTURE The real use of torture was not to piinish a criminal, though it was sometimes employed for that purpose. (The Julian law, for instance, prescribed it for lese- majesty). It was intended, first, to extort from a per- son accused a confession of guilt, and second, to force him to disclose the names of his accomplices. It was an incident in judicial procedure. The theory of its term of years ; (4) banishment for life, or for a specified term ; (S) flogging; (6) the amende, honorable; (7) reprimand. Be- sides these principal penalties there were others which were accessory, such as branding, the carcan, the pillory, dragging in the mud, and confiscation; also lighter punishments, like fines, etc. But nowhere is imprisonment mentioned in the light of a punishment; never was it so inflicted. The prison was simply a place where the accused was held for trial, and convicts were held until the execution of sentence. The Constituent Assembly adopted imprisonment as the principal, though not the sole, basis of the criminal code. It made of this form of punishment, which was never to be for life, a new feature in criminal jurisprudence. It created the penitentiary system in France; that is, a system' founded upon the amendment and rehabilitation of the prisoner. In the penalty of la gene (absolute solitude), authorized by the 14th section of the Code, may be seen the germ of "solitary confinement" practised, later, at Philadelphia. The National Convention made but slight changes in the Code. The Empire, however, overthrew it bodily, by reestablishing imprisonment for life, confiscation, and branding, and by replacing la gene by rele- gation or exile. The Code of 1810, nevertheless, contains a more advanced provision than does the Code of 1791, in giving to judges discretionary power to determine the duration of sentence within minimum and maximum limits. It also contains a pro- vision for the surveillance of discharged convicts, which did not occur to the Assembly or the Convention." — M oreau-Christophe. INTIMIDATION AND TORTURE 89 advocates was that the knowledge of one's own guilt is guilty knowledge, and to compel him to give it up was only an act of justice; while any evidence which he might have in his possession touching the misdeeds of others was the property of the state, which it had the right to recover by any and all means at its command. This is indicated by the Latin word for torture, qucestio; and even the English word in its etymological derivation suggests the same thought — torture is the twisting (torsion) from its subject of his guilty secrets. Traces of this theory survive in the French practice of interrogation of the accused by the judge. English law is more humane, since it admits the right of the accused to refuse to answer questions which tend to his incrimination; but there is reason to believe that what the courts are forbidden to do, the police, espe- cially the detective branch of it, does not scruple to attempt, in the United States, without warrant of law. Like flogging and other corporal chastisements, tor- ture was originally applicable exclusively to slaves. A slave had no rights superior to those of a military cap- tive. Parrhasius, when about to paint his picture of "Prometheus Bound," purchased a captive, whom he subjected to torture, in order that he might the better serve as a model, by his contortions and facial expres- sion. A story is told of a Roman noble, whose lam- preys were greatly praised at a dinner given by him; he explained that they have been fed on the flesh of slaves, killed and thrown into the water for that pur- pose. The testimony of a slave was valueless in Rome and in Athens, unless extracted from' him by torture. Paul escaped scourging, to make him confess his 90 PUNISHMENT AND REFORMATION crimes, at the hands of the chief captain in Jerusalem, only because he could substantiate his claim to be a freeborn Roman citizen. Torture is an institution at least as old as Egypt. A passage in the book of Esther makes it probable that it was in use in ancient Persia. Moses forbade it, in the injunction that no proof of guilt should be accepted by the Hebrew courts, except the concurrent testimony of two witnesses. But it was practised in Greece. A re- script of the Emperor Augustus authorized it in Rome, on the express ground that it was useful as an agency for the discovery of truth, ad veritatem requirendam. Tacitus relates an anecdote of Tiberius worth repro- duction here. A nephew of Pompey was accused of magic, but protested his innocence. With a view to ascertaining the fact, his accusers demanded that his slaves, who were familiar with his habits, should be put to the question, in order to induce them to tell what they knew. A Roman law, however, forbade the testifying of slaves against their master. Thereupon the Emperor freed these slaves, at the cost of the public treasury, in order to enable them to appear as witnesses in the case. The only criticism which it occurs to Taci- tus to make upon this transaction is that the Emperor was not justifiable in thus circumventing the law. Since torture cannot well be practised in public, it was not suited to the Teutonic nations, whose tribunals were popular assemblies. It did not find its way, therefore, into Northern Europe, or at least was not expressly recognized as legal, before the reign of Charles V., who, with his successor, Francis I., is credited with the revival of the old Roman jurisprudence. These INTIMIDATION AND TORTURE 91 monarchs established by law, in the sixteenth century, all that is included under the general title of torture. They recognized and adopted the Roman distinction between ordinary and extraordinary penalties; the former were named in the code, and could be ordered by judges upon the testimony of witnesses or upon the plea of guilt by the accused; but, if these were wanting, they could proceed to the question, and, if the sufferer confessed under duress, a larger discretion as to the punishment to be adjudged against him was vested in them. The right to put accused persons to the question was a prerogative of the grand seigneurs; like other name- less privileges which they enjoyed, it was for them an appanage of rank, a means of vengeance, and an agency for extorting tribute. There is much evidence that the resort to this more than questionable method of proof was never in Eng- land common as it was upon the continent. Hallam, the constitutional historian of England, says that "the common law neither admits of torture to extort con- fession, nor of any penal infliction not warranted by a judicial sentence ;" but adds, "This law, though still sacred in the courts of justice, was set aside by the Privy Council under the Tudor line. The rack seldom stood idle in the Tower, for all the latter part of Eliza- beth's reign." As some of the investigations made into prison management prove, jailers sometimes made un- lawful use of torture to extract information from prisoners. There were in the Tower two chambers, both of which were regarded as excellent places in which to 92 PUNISHMENT AND REFORMATION seclude a man, in order to stimulate him to serious reflection. One of them was called "Little Ease," because it was too small to admit of his standing, sit- ting, or lying in it with any comfort to himself; the other was the "Dungeon of Rats." The principal forms of torture were as follows: First, the cord, which was sometimes applied simply by tying the thumbs together as tightly as possible with whipcord. Generally, however, by the cord is meant the violent jerking of which there is an illustra- tive engraving in John Howard's book on the "State of Prisons." It is sometimes called the strappado (French estrapade).^ The victim, having submitted to have his hands firmly tied behind his back, was raised by a rope and pulley to a height, then suddenly dropped and caught, so that his joints snapped like a whip. To render it more excruciating, weights were sometimes attached to his feet ; Howard saw five differ- ent weights in the prison at Zurich, the heaviest of which was one hundred and twenty pounds. Savana- rola and Machiavelli were both subjected to this test. The common time for continuing it was an hour, and very few who -endured it that long ever regained the use of their limbs. The thumbscrew I need not describe. A model of it may be seen in the Tower. It was occasionally used, as we use handcuffs, for securely holding prisoners. In the boot and wedge, the legs were tied and wedges driven between them. The boot was sometimes made 1 Francis the First, that bloody tyrant, with diabolical ingenu- ity, combined the strappado with burning alive, in the execution of Protestants, at a place in Paris formerly known as the Estrapade. INTIMIDATION AND TORTURE 93 of parchment, put on the feet wet, and then dried before a fire. The rack was introduced into England by the Duke of Exeter, and for that reason was popularly known as "Exeter's Daughter." It was a machine for stretching all the limbs at once, until there was danger of their giving way at the weakest joint, whatever that might be. The "Scavenger's Daughter" was named after the Lieutenant of the Tower, its inventor, whose name was Skevington. By its use the knees were drawn up to the breast and the feet to the thighs, where they were held by iron bars ; the sufferer was practically rolled up like a ball ; the blood was forced from his nose and mouth, and not infrequently the ribs and breastbone were broken. Burning with heated pincers was called the hooks. A form of torture peculiar to Italy was the veglia, by which the point of a diamond was made to press against the end of the spinal cord of a prisoner seated upon a plank in which the diamond was securely im- bedded ; the result was convulsions. All the various pains which have been described under this head were borne, it must be remembered, not necessarily by the guilty, but by the innocent. The question preparatory was designed to make its subject commit himself ; the question preliminary to make him commit some one else. The former was applied before, and the latter after, judgment. Attempts were made to guard so powerful an engine of oppression against abuse, by restricting the number of persons who could put it in operation, the conditions of its application, the 94 PUNISHMENT AND REFORMATION extent to which it could be used in individual cases, and the crimes for whose discovery, proof, or punish- ment it was lawful to make use of it. But it was placed in the hands of both the civil and the ecclesias- tical courts, in an age of ignorance, superstition, and tyrannical abuse of class privilege. That -torture is contrary to humanity and religion, as well as to sound principles of law, is now apparent enough. But the controversy over it lasted for centu- ries, and at times raged with fury. The great Roman lawyer, Ulpian, opposed it as unsatisfactory and dangerous. The Christian Fathers, TertuUian and Augustine, denounced it. The early Christians per- suaded the Emperors not to inflict it during Lent. Many of the Popes condemned it; so did the Protes- tant sect of the Waldenses ; so did the Encyclopaedists. Clement V. said that the withholding the sacraments from persons under torture was a damnable outrage. Montaigne said that torture was both cruel and useless. Nevertheless, so deeply engrained in the thought of men were the conceptions which underlay it and gave it vitality, that no writer could give it a death-blow, until Beccaria published his little tractate on "Crimes and Punishments," at Milan, in 1764. His book was the sensation of the day. It was trans- lated into all the modern languages ; he was invited to Paris; but the best of all was that his views were adopted by governments, and that he lived to see tor- ture abolished in France, in Austria, in Russia, and to a large degree in Italy. It lingered in some of the petty Italian states until 1831. We are apt to accord the palm to Howard of England as the greatest of INTIMIDATION AND TORTURE 95 prison reformers. Beccaria did not, like Howard, spend his life and his fortune for the amelioration of the unhappy state of those in bonds. But he perhaps did even more for the world, in winning its ear and altering the whole current of its criminal juris- prudence. THE INQUISITION Torture was so preeminently an ecclesiastical weapon with which to combat heresy, for the glory of God and the eternal welfare of human souls, that it would be to give but an imperfect idea of the change which has come over the spirit of the race, if no mention were made of the Inquisition. There were two very distinct periods in the history of the Inquisi- tion, one of which covered two hundred years, from the close of the twelfth to the close of the fourteenth century, and the other began with the creation of the Spanish Inquisition, ten or a dozen years before the discovery of America by Columbus. The first of these periods need not detain us long. The Council of Verona in 1184 condemned the tenets of the heretical sects called the Albigenses and Waldenses, found in the south of France. Peter of Castelnauand Raoul, two Cistercian monks, were sent thither to com- pel them to abjure their errors. They associated with themselves the great Saint Dominic, founder, in 1215, of the Dominican order. Innocent III. was his friend and patron. They invaded France on their sacred mission in 1204. At the memorable siege of Alby, July 22, 1209 (which made forever infamous the name of. Simon de Montfort, the general who con- 96 PUNISHMENT AND REFORMATION ducted the siege and permitted the massacre which followed), the soldiers asked Dominic by what sign they could distinguish the heretics from the faithful; he replied, "Spare none ! the Lord will know his own." The church could not itself put its enemies to death, without despite to the spirit of forgiveness by which it was supposed to be animated; but the Emperor Frederic II., under the menace of excommunication by Pope Honorius III, assumed the protectorate of the Inquisition, and ordained that heretics condemned by it should be put to death or otherwise punished, according to their crimes, by the secular power. The Emperor, when it was too late, repented of his weak- ness, but Innocent IV. had by that time given it per- manent life and united it to the Holy See. It was during this period of our story, that the Templars were suppressed, and De Molay, the grand master, burned alive, near the spot where now stands the statue of Henry IV., in Paris. The old Inquisition, however, ex- isted largely in name; its pretensions were resisted; and, although it obtained a foothold in Italy, Spain, France, and Germany, it had, when Ferdinand and Isabella were married, become dormant everywhere except in the Papal States. About the middle of the fifteenth century, a young man, a student in the University of Salamanca, had the misfortune to fall violently in love with a beautiful Spanish girl named Cazilda, who had engaged herself to a Moor. In a street brawl which ensued, the Moor disarmed the Spaniard, who took a solemn vow to be revenged, not only upon the Moor and his lady-love, but upon the accursed race to which his successful INTIMIDATION AND TORTURE 97 rival belonged. They fled to Granada, where for a time they were safe. This passionate student subse- quently made the acquaintance of Father Lopez, the Superior of the Dominican order in Spain, who per- ceived the brilliancy of his talents, his inordinate am- bition, the ardor of his spirit, the intensity and tenacity of his will, and determined if possible to secure him for the church. Becoming intimate, the secret of his undying hostility to the Moor was revealed to his new friend. Lopez, failing in the effort to cure him of a hopeless attachment and to seek peace of mind in a monastic career, suggested to him that possibly, -not being of noble blood, he might gratify his longing for vengeance even more effectually in the priesthood than as a simple layman. The young man became a Domin- ican friar. In the convent library he discovered the ancient records of the former Inquisition. At the risk of his health and his life, he devoted his days and nights to poring over them. They excited his admira- tion, aroused his ambition, fed the spirit of persecution by which he was consumed, and decided him to become an inquisitor. But how to arrive at his end ? He went to Toledo, where he distinguished himself as a pulpit orator, at- tracted the attention of the Court, and finally became the tutor and confessor of the young Isabella, the future Queen of Spain. He instilled into her infant mind his own fanatical intolerance. On the day of her first communion, he extorted from her an oath upon the crucifix, that she would, on coming to the throne, either convert the heretics within her kingdom or ex- terminate them. 98 PUNISHMENT AND REFORMATION In 1481 Isabella, whose marriage with Ferdinand had tinited the crowns of Aragon and Castile, received a visit, after her coronation, from Lopez, the confessor of Ferdinand, in company with her own confessor, the celebrated Torquemada, • the student of whom I have spoken. The war with the Moors had just terminated with the conquest of Granada. The conspirators per- suaded the youthful royal pair to make formal applica- tion to Sixtus IV., then Pope, for the reestablishment of the Inquisition in Spain, and for the appointment of Torquemada as grand inquisitor. A bull to that effect was granted, and the principal seat of the tribunal was fixed at Seville, in the chateau of Triana. Torquemada aspired to be a Cardinal. Ferdinand desired to enrich the crown by the confiscation of the immense wealth of the Moors and the Jews. Thus avarice and the love of power, those fatal human passions, , were the founda- tion of the modern Inquisition. Torquemada lost no time in beginning his bloody work. During his first year, he burned nearly three hundred heretics in Seville alone, and two thousand more in the other cities and provinces of the kingdom. Outside of the walls of Seville he caused to be erected a stone scaffold called the Quamadero ; at the four cor- ners of the base were four hollow statues, representing the four great Hebrew prophets, into which the con- demned were forced, when fires were kindled around them, which were kept up until their bones were re- duced to ashes. It is not very many years ago that the remains of this scaffold were still visible. The work of Torquemada was effectively seconded by Ximenes, the Prime Minister of Ferdinand and con- INTIMIDATION AND TORTURE 99 fessor of the Queen, who saw in the Holy Office the means of creating, through intimidation, a party which would, in case of conflict, support the Minister against the throne. Purely personal and political motives were enough to make him the protector of the Inquisition. The Jews, the Moors, and even many Christians be- gan to fly in terror from Spain. Thereupon, emigra- tion was declared to be a crime, and the emigrants were burned in effigy. In 1492, however, the King issued a decree banishing the Jews. In 1483 the Inquisition was made a permanent insti- tution. The sole power over it reserved to the Pope was that of confirming or rejecting the nominations of the grand inquisitor. The grand inquisitor presided over the supreme council, composed of five members, one of whom must be a Dominican. The fiscal procurer formulated the charges for trial; the qualificator passed theological judgment upon them ; the sergeant-major or marshal of the court was called the alguazil; and there were secretaries, a receiver, and two relators. The familiars of the Inquisition were spies. Their number was be- yond computation, their names were unknown; they were called familiars, because they were looked upon as members of one great family. The Inquisition was supported from the outside by two lay societies, one of which, the Brotherhood of the Cross, was composed of nobles; the other, the Holy Hermandad, of the commonalty. They constituted a sort of authorized ecclesiastical police or militia. The jurisdiction of the Inquisition over ecclesiastical offences was unlimited ; it could try some civil offences; 100 PUNISHMENT AND REFORMATION no religious faith was a bar to its jurisdiction. It took jurisdiction of individuals in four ways; by common fame, the reports of spies, secret delation, and open accusation. The tribunal had the right to make arrests everywhere, even in churches. Its prisoners were in- stantly lost to the world ; their friends were forbidden to utter an inquiry as to their fate. Immured in cells till summoned to . appear, when they asked of what they were accused, the cold and formal reply was, "You ought to know." Before being put to the question, they were granted three "audiences of monition," in which the arts of finesse and cajolery were exhausted, to entrap them into some admission which might be used against them or against others, At the first audi- ence, they were threatened; at the second, seduced by promises; at the third, interrogated as to their gene- alogy, family history, and knowledge of theology. The pretended counsel assigned them rarely brought to the attention of the court any evidence in their fa- vor, but did his best to coax them to make confession. There were three grades of prisons of the Inquisi- tion, all under one roof. The public prisons were for those not charged with any crime against the faith; the intermediate for the discipline of employees of the holy office not charged with heresy. Both of these were open to visitors. The secret dungeons were sub- terranean; they lay beneath the marble floor of the palace, were both dark and damp, and not a word was permitted to be spoken in them, either by the prisoners or by their jailers. In the torture chamber, the three principal forms of coercion were by' the cord, by water, and by fire. In INTIMIDATION AND TORTURE 101 the second of these, which has not been described, the body was extended at full length upon a frame so con- structed as to bend it slightly backward and to elevate the feet above the head ; the face was covered with a wet cloth, kept wet by constantly falling drops of water which had to be swallowed, in order to prevent suffoca- tion. At the same time, the cords by which they were bound were continually drawn tighter by a tourniquet, so as to cut into the flesh until it bled. Torture by fire was both w'ith. hot irons and by slow roasting in front of flames. If a prisoner confessed, he was burned alive and his property confiscated. This torture chamber was removed from sight and hearing, and hung with black or with crimson. On the wall of the one at Nuremberg, when Howard visited it, was inscribed what he justly calls the "jingling verse:" — "Ad mala patrata hac sunt atra theatra pamta." A crucifix hung behind the inquisitor's seat. The exe- cutioners were masked. All the proceedings were sur- rounded with mystery, more deeply to impress the imagination of the ignorant. Llorente, the historian of the Inquisition, who was its chief secretary, records that the number of its victims amounted, in the two centuries during which it lasted to 341,021, of whom 31,912 were burned alive, and 17,659 were burned in efifigy, or their dead bodies exhumed and committed to the flames ; for the Inquisition claimed jurisdiction beyond the tomb. In a history of the Inquisition published at Madrid in 1598, its author, Louis de Perama, an inquisitor, traces its origin to the creation. He claimed that Adam and 102 PUNISHMENT AND REFORMATION Eve were the first heretics and God the first inquisitor. God was alone in the garden with Adam, when he asked him what he had done; this is the warrant for secret interrogation. Adam's punishment was threefold : exile from Eden, deprivation of his former right of property in Paradise, and loss of dominion over the brute crea- tion; thus he justified the claim of the Inquisition to pronounce judgment of banishment, confiscation of goods, and loss of rank. That the auto-da-fe is a divine institution, is proved by the flood and by the rain of fire which destroyed Sodom. Inquisitors have existed in all ages ; Sarah banished Hagar and Ishmael, Isaac deprived Esau of his inheritance, the Levites were the first inquisitorial council, and Jesus Christ himself caused the death of Herod. The Emperor Napoleon abolished the Inquisition in 1808, as an infringement upon his own imperial pre- rogative arid upon the authority of the secular courts. A graphic account of the destruction of the Inquisition at Madrid in 1809 was published in an obscure Chicago newspaper, the Western Citizen, by Colonel Lema- nouski, a Polish officer in the Imperial Army, who was an eye-witness of the scene which he describes. The soldiers of the Inquisition made a desperate re- sistance, and the walls had to be battered down with the trunks of trees. An entrance having been effected, the inquisitors denied the existence of the secret tor- ture chambers ; but, on flooding the marble floor with water, a crack was discovered, through which the water ran in a stream. Repeated thrusts with bayonets in the neighborhood of this crack resulted at last in touching a concealed spring, the flying open of a INTIMIDATION AND TORTURE 103 marble slab, and the revelation of a stairway. In the dungeons reserved for prisoners for life many pris- oners were found, of both sexes, all in a complete state of nudity, some of them reduced to a state of imbecility, and in various stages of starvation. Powder was placed under the palace, the walls and towers were thrown down, and the Inquisition of Madrid came to a perpetual end. The Congregation of the Holy Office still exists in Rome, but, although the canon law asserts the power of inquisitors to constrain even civil magistrates to cause the statutes against heretics to be observed, and to com- per the execution of sentence, the Catholic Dictionary states that "nowhere does the State assist the Church in putting down heresy; it is therefore superfluous to describe regulations controlling a jurisdiction which has lost the medium in which it could work and live." CHAPTER VI DAWN OF THE REACTION The view given, in the last chapter, of the forms of cruelty practised by mankind in dealing with military captives, slaves, and criminal offenders (between all of whom there was a great resemblance in legal status), would be incomplete without some figures tending to show also the extent of the evil. In the nature of the case, no complete or exact statement is possible. A few figures culled almost at random from various sources may be submitted, without expressing any opinion as to their trustworthiness, further than that they presuma- bly give a truthful but inadequate idea of the reckless- ness of human rights displayed in past ages.- Llorente's statement as to the Inquisition has been already quoted. The ancient laws of France authorized the infliction of the death penalty for more than one hundred distinct offences. A French judge, named Remy, at Nancy, boasted that he had burned eight hundred in sixteen years, and that sixteen committed suicide in one year rather than run the risk of falling into his hands. In the first quarter of the sixteenth century, the public executioner of Nuremberg put to death eleven hundred and fifty-nine persons. In the seventeenth century, it is said, the Parliament of Bordeaux burned more than six hundred sorcerers in a single year. Seventy thousand executions took place in England during the reign of Henry VIII. These are merely sample instances. 104 DAWN OF THE REACTION 105 At last the world became weary of shedding blood. It was not possible, in view of the growth of human knowledge, the progress of invention, and increased facilities for travel, to say nothing of the multiplication of books and newspapers, that the atrocities of former generations should longer be regarded with popular in- difference. The old legislation pushed its blind fury to the point of confounding the innocent with the guilty. Wives and children perished with their husbands and fathers; posterity was robbed for the enrichment of titled and clerical oppressors; if a slave was guilty of theft or murder, hundreds were sometimes slain for the offence of one. Revenge stopped not with the human species ; animals, and even inanimate objects, were for- mally accused, tried, convicted, and sentenced. Punish- ment assumed post mortem and hereditary forms. Men were executed in effigy. In its administration the grossest inequality was sanctioned by law. There was one penalty for the rich, another for the poor; one for the slave, another for the freeman ; one for the noble, another for the commoner. Crimes which were known to the law were said to be ordinary; but judges could add to the list others which were extraordinary and unprovided for, in the punishment of which they had large discretionary powers. The truth of the adage that "crime thrives upon severe penalties" is demonstrated by the experience of mankind, before the genius of Christianty and of mod- ern science taught the lesson of greater tolerance, so imperfectly learned, that even now rash and ill-in- formed men often express the opinion that what is needed for the repression of crime is severer penalties ; 106 PUNISHMENT AND REFORMATION as if we could hope ever to rival what has already been tried in this direction. Among the distinctions recognized by European criminal law in the Middle Ages was that between the clergy and laity. By benefit of clergy is meant the ex- emption of priests from trial by the civil courts. The right of appeal to the ecclesiastical courts, however, existed only in case of a capital charge; but so many offences were capital, that this was equivalent to ex- emption from civil jurisdiction in a large majority of instances. The ordinary demanded the delivery of the clerk by the civil authorities, who at first surrendered him before trial; but later, the ordinary could take him even after trial, and he had the right to clear himself by compurgation. A jury of twelve, all of them priests, was impanelled; he took a solemn oath in their presence that he was innocent; and they solemnly swore that they believed him. This was the easy process by which he escaped punishment for his crimes, if it was not for the interest of the church that he should suffer. Originally, the evidence that he was a clergyman consisted in his tonsure and his habit ; but, in an age when the only persons who knew how to read were those in holy orders, or studying for the same, the practice gradually grew up of allowing anyone who could read to plead benefit of clergy. Thus an institution than which nothing can be ima- gined more unfair, came, in the providence of God, or in the order of nature, to be the occasion of the overthrow of the very injustice of which it was a manifestation. Teaching letters to a prisoner by his jailer, in order to qualify him to claim benefit of DAWN OF THE REACTION 107 clergy, was a punishable act. A man who had once been released upon this plea was not entitled to offer it a second time; and, as has been stated in order to ' make sure that he should not do so without being recognized, it was the custom to brand him on the fleshy part of his thumb. But an act approved in 1706 admitted all persons to benefit of clergy, upon their own application, which was the virtual repeal of this distinction. The abolition of branding was one of the first indica- tions of the dawn of a more humane spirit in society. It was due to the recognition of the fact that a thief branded with the letter "T" was thereby wholly de- barred from all subsequent opportunity to make an honest living. Attention has been called to the distinction between felonies and misdemeanors, the former including all capital offences. At the common law, felonies were few in number : the entire list included, probably, no more than homicide, rape, burglary, arson, larceny, robbery, and mayhem. But others were made capital, from time to time, by statute; and those thus added were made felonies "without benefit of clergy." By that was meant that persons convicted of them could not appeal to an ecclesiastical court and so escape death. The result was a great increase in the number of executions. The human mind finally revolted against such indiscriminate and useless slaughter. Magna Charta forbade the compulsory exile of any Englishman. But multitudes of prisoners under sen- tence of death were given the alternative, of which they hastened to take advantage, of voluntarily leaving 108 PUNISHMENT AND REFORMATION the realm, if pardoned. Herein was the germ of Eng- lish transportation. On the other hand, the increase in the number of capital crimes rendered it certain that the severity of punishment of misdemeanors would be gradually re- laxed. Little thought had yet been given to the possibility of making simple incarceration, without torture or any form of physical suffering, serve as a penalty of crime. Prisons existed from time immemorial. They are mentioned in the Old Testament. Joseph was thrust into Potiphar's prison, Samson into that of the Philis- tines, and Jeremiah's dungeon into which he was let down by ropes is never to be forgotten. But the ancient prison was only a place of confinement in which men were kept waiting the final disposition to be made of them. Samson, for instance, had been blinded before his imprisonment, or in the prison, and there he was punished by making him grind corn. Ulpian, the Roman lawyer, expresses this principle in saying, "Career enim ad continendos homines, non ad puniendos haberi debet."^ The famous Cretan labyrinth was a prison. It was said to have but one inconvenience and but one merit — no one could ever, unassisted, find his way out of it. The Mamertine prison was for many years the only prison in ancient Rome.^ Afterward, a deep, dark 1 Career is by some etymologists supposed to be a derivative of eoercere. Others connect it with the Hebrew carcar, to bury. 2 "Felices proavorum atavos, felicia dicas Saecula, quae quondam sub regibus atque tribunis Viderunt uno contentam carcere Romam." Juvenal, Sat. iii. DAWN OF THE REACTION 109 dungeon was constructed beneath it, called the Tulli- ana, because it was built by TuUius.^ Sir James Stephen is unable to find any mention of imprisonment as a penalty in Anglo-Saxon law, though a friendless man or a stranger who could give no surety, at his first accusation, was required to go to prison "and there abide till he goes to God's ordeal." The first English prisons were merely wooden cages commonly constructed in the king's castles. The barons, however, had private prisons for offenders sentenced in the manorial courts, and the bishops had ecclesiastical prisons. The dungeons of the Middle Ages were situated either at the top of a tower or in a cellar or subcellar. They were not separate structures, but were apart- ments in a castle, fortress, palace, hospital, or convent. The habit of despots is to cover up tyranny by the use of euphemisms, which is illustrated by the fact that the ancient prisons were rarely given that name, but were called by some other. The history of famous prisons and the lives of fa- mous prisoners fill many books. It is not possible to go very deeply into that. The Tower of London was originally a fortified palace, erected by William I. and used as an arsenal. Except the historical reminiscences which it suggests, the most interesting thing about it to-day is the won- 1 "Est in carcere locus quod Tullianum appellatur, ubi pauUu- lum ascenderis ad laevam circiter duodecim pedes hutni depressus. Eum rauniunt undique parietes atque insuper camera lapideis fornicibus juncta sed inculta tenebris, odore foeda atque ternbilis ejus facies est In eum locum postquam demissus est Lentulus vindices rerum capitalium quibus praeceptum erat laqueo gulam fregere."— Sallust, Catil, cap. 55. no PUNISHMENT AND REFORMATION derful collection of old arms and armor which it con- tains. It really consists of several separate structures, the White Tower, the Bloody Tower, and the like. The Bastille was originally one of the city gates of Paris — a fortified gate, flanked by two towers. It was known as the Porte Saint Antoine. The fortress which replaced it was erected in the fourteenth century, al- though the last two towers of the eight of which it was composed were not completed until the middle of the sixteenth century. Hugo Aubriau was the first superin- tendent of construction, and he was also its first pris- oner. It was made a prison of state in 1417. When the boundaries of Paris were enlarged, to include the Faubourg Saint Antoine, the Bastille ceased to be of further value as a fortress and became purely a prison. It was here that the Man with the Iron Mask was confined. The French kings in the seventeenth and eighteenth centuries were in the habit of signing letters of cachet, by which men and women could be sent to prison without trial and there held during the royal pleasure. Many of these letters were signed in blank and distributed to the nobles at their request — a very handy thing to have, if one wished to dispose of a troublesome friend or enemy. This prison witnessed the death of many such, forgotten by all but their nearest friends. It was captured by the mob and de- stroyed, July 14, 1789. The commander in charge defended it with great bravery, and wished to blow it up rather than surrender, but the Swiss guards would not let him do so. It was taken only after eight cannon had been brought to bear upon it. This was the beginning of the French Revolution. Most of the DAWN OF THE REACTION 111 apartments were octagonal in form: there were five grades of them, the worst being underground and the next worst at the top. Some of the dungeons con- tained iron cages, which were looked upon then with greater horror than now. They were invented by the Bishop of Verdun, who subsequently, by an act of poetic justice, occupied one of them. The oubliettes (so called from the verb ouhlier, to forget, because the prisoners consigned to them were meant to be forever forgotten) 'had deep pits in them concealed by a trap- door, through which a prisoner fell into mud and starved, or into water and drowned, or upon a wheel set with knives which cut him to pieces. Louis XL is said to have killed not less than four thousand victims in these oubliettes. Another famous French prison was the Conciergerie, which is still used as a prison. It was an appendage of the Palace of Paris, and its name denotes that it was the abode of the concierge or royal porter and doorkeeper, whose office was to keep people in as well as to keep them out. Its origin is lost in antiquity. From one of its towers was given the signal for the Massacre of Saint Bartholomew. It has twice been burned, the last time in 1776. The cell from which the ill-fated Marie Antoinette went to execution is here shown to visitors. From this prison went also the man who was the soul of the Reign of Terror, with whose own death it came to an end: Robespierre, who, strange to say, in the Convention had proposed the abolition of capital punishment, and thus allied himself to Marat, who had written a book against it. Before being transferred to the Conciergerie, Marie 112 PUNISHMENT AND REFORMATION Antoinette, with Louis XVI. and their two children and the children's saintly aunt, had occupied a tower of the Temple, during their long martyrdom. This was the strongest of all the Parisian prisons. It was once the palace and treasure-house of the Templars. After their dissolution in 1312 by order of Pope Clement V., it had been turned over to the Knights of Malta, whose priory it became, on* condition that the towers should be used as a prison of state, which was the case until the founding of the Bastille in 1370. It was a prison under the Directory, and under Na- poleon till June, 1808; it was torn down by order of the Emperor in 1811. For-l'Eveque (forum episcopi) was, as its name sug- gests, an episcopal or ecclesiastical prison. It was built about the year 1161, with dungeons and oubliettes under the towers. There was in it also a torture chamber. It was several times rebuilt, during the six or seven centuries that it was used. In 1674, after a long struggle between the Bishop and Louis XIV. over the question of secular or ecclesiastical jurisdiction, Louis seized it and converted it into a secular prison, specially devoted to the retention of prisoners de cachet, It ceased to be employed as a prison in 1780, and has since been destroyed. Bicetre, now a lunatic asylum, once the residence of a bishop, with a lon^ and curious history of changes of owners and of functions, was, at the date of the Revo- lution, a mixed establishment, partly a prison, partly a hospital, partly an almshouse. From here it was that convicts were sent to the galleys. Their departure was a sight much frequented by the great, who enjoyed DAWN OF THE REACTION 113 the spectacle. About noon, they were brought from their cells to be chained, an operation which occupied the blacksmiths until dark. Twenty-six men were at- tached to each chain by triangular collars riveted around their necks. The spectators, moved by com- passion, made tkem presents of money. They lay all night upon the straw in the court of the prison, be- cause, being chained, they could not be taken back to their cells; and in the morning they started for the coast in great wagons which held the whole twenty- six, placed in two rows of thirteen each (unlucky num- ber!) back to back. The last convoy of this character left Bicetre in 1835. The word Salpetriere, the name of another French prison, suggests saltpetre, and in truth it was so named because Louis XIII. built it for the manufacture of gunpowder, though he called it the Little Arsenal. After it had ceased to be used as an arsenal, it became for a time a hospital for beggars — a sort of mediaeval wayfarers' lodge without the labor test. Louis XIV. converted it into a prison for women. On the 4th of September, 1789, a committee of the Assembly ap- pointed to empty the prison of its inmates entered it for that purpose. The poor creatures there confined were rejoicing at the prospect of liberty, and all the more since a few were in fact set free. But presently a woman was brought before the committee, sitting as an irregular court of justice, who was branded on the shoulder with the letter "V" for voleur or thief. She was at once taken into the yard, where a company de- tailed for that purpose fell upon her and massacred her. Thirty-three women were thus murdered that day 114 PUNISHMENT AND REFORMATION in cold blood. The last of them, who had no suspicion (as none of them had) of the fate of those who had preceded her, had dressed herself with care in the clothes she wore when she was committed — a red gown, silver buckles in her shoes, gold earrings — and, when they undertook to carry her down the stairs, she made such a desperate resistance, that she was killed on the staircase. The massacre of the inmates of the prisons of Paris by the revolutionists is one of the bloodiest pages in history. What happened here occurred at many other prisons, with added circum- stances of horror. These were a few of the famous prisons of Europe in former centuries. Others were the Castle of Spiel- berg, in Austria, where Frederick the Great made such fearful efforts to crush the indomitable Baron Trenck, whose escapes and varying fortunes constitute one of the most exciting romances in the annals of tyranny; the Leads of Venice; and the Seven Towers of Con- stantinople. In the latter there was a cell called the bloody cell, with a pit under it called the well of blood. English literature has familiarized us with English prisons of the olden times, especially with the Mar- shalsea, the Fleet, and the Newgate. It was the cus- tom of those days for every court to have a prison of its own: thus the Fleet pertained to the jurisdiction of the Star Chamber, and the Marshalsea to the King's Bench. In the sixteenth century there began to be erected here and there houses of correction or workhouses, not punitive nor reformatory, but rather repressive in their character and purpose, designed for the detention not DAWN OF THE REACTION 115 of criminals so much as vagabonds. They were more common on the Continent than in England. There was in England a palace near Blackfriars called St. Bridget's Well, which was given to the city of London by Edward VI., as a lodging-house for tramps and was converted into a house of correction. It is from the corruption of this title in the mouths of the common people, that the word Bridewell now applied to a city workhouse has been evolved. Parliament, in the reign of Elizabeth, ordained that there should be a house of correction in every county for persons described by Mr. Pike in the following words : — "There were the practisers of unlawful games — the forerun- ners of our modern skittle-sharpers, welshers, and gaming-house keepers. There were persons who 'used physiognomy, palmis- try, or other abused sciences, tellers of destinies, deaths or for- tunes. There were 'minstrels not belonging to any honorable person of great degree,' unlicensed buyers of rabbit-skins, sellers of aqua vitse, petty chapmen, tinkers, pedlers, jugglers, bear wards, fencers, unlicensed players in interludes. There were begging sailors pretending losses at sea, and unable to show a license from two justices living near the place where they landed. There were Irish men and Irish women 'of the sorts aforesaid,' who lived by begging. There were hedge-breakers and petty pilferers of wood. There, too, were scholars of Oxford or Cam- bridge that went about begging, 'not being licensed by the chan- cellor or commissary.' " Begging in old times was a licensed avocation. The example was set by the begging friars ; but the privilege allowed them was gradually extended to persons not in religious orders. I quote again from Mr. Pike: — "Before the Norman Conquest a man who had no lord was to be accounted a thief: in the reign of Elizabeth a man who had no lord and no master was to be accounted a vagabond. In 116 PUNISHMENT AND REFORMATION addition to the classes already mentioned, the houses of correc- tion were filled with 'idle laborers that would not work for the wages taxed, rated and assessed by the justices of the peace,' and 'strong, idle persons having no land, money, or lawful occupation.' " The gypsies, or Egyptians, as they were formerly entitled, were treated as felons ; and so were all persons seen in their company. Still more mixed was the collection of criminals, vagabonds, and unfortunates in the workhouses of the Continent. At Bruchsal, as late as the year 1750, there were gathered under one roof not only felons and misdemeanants, but lepers, lunatics, orphans and even unemployed handicraftsmen. The workhouse system, which was the middle term between the ancient and modern prison, required for its full development about a century and a half — say from 1550 to 1700. This period was marked by the creation of workhouses or houses of correction (the terms are interchangeable) in London in 1550; in Amsterdam in 1588, and in the same year a hospital in Nuremberg was changed into a spin-house; in Liibeck and Bremen in 1613; in Berne in 1615; in Hamburg about 1620; in Basle in 1667; in Vienna and Breslau in 1670; in Liineburg in 1676; in Florence in 1677, and in Munich in 1687. Nearly all of them were in Northern Europe, and in the Germanic states. That in Munich was intended for disobedient children, frivolous and insolent men, lazy boys and girls, stupid and refractory apprentices, day laborers who shirked their work — in a word, for such as would otherwise loaf and beg, or at least do nothing useful — in order that they might be brought DAWN OF THE REACTION 117 to a better life, or, if that was beyond hope, placed where they could not mislead and injure others. The spin-house founded by Peter Rentzel in Hamburg in 1669 deserves special mention, because, "having ob- served that the exposure of petty thieves and prosti- tutes in the pillory tended to make them worse instead of better," he built this establishment "at his own cost, to the glory of God and for the salvation of souls, where they might by labor and religious instruction be reclaimed both for time and for eternity." He thus anticipated the benevolent intentions of Pope Clement XI. in founding the hospital of St. Michael at Rome. John Howard, in his record of his travels, has much to say of this new system. Among other things he mentions many of the occupations in which prisoners were engaged. In Holland the men were rasping log- wood in the rasp-houses ; the women in the spin-houses he found carding, spinning, knitting, and weaving; all of them being set to work, as he says, upon the princi- ple, "Make men diligent, and you will make them honest." When the invention of mills for grinding log- wood rendered this form of handwork no longer profitable, the manufacture of woollen cloth was sub- stituted for it. Other Dutch prisoners were seen by him making fishing-nets, or sorting coffee-berries, or weaving coarse carpets, or sacks for the East India trade. In Germany the felons, called galley-slaves (though without water there could be in fact no galleys) were at work upon the streets or the fortifica- tions, or in the chalk quarries. At Nuremberg, they polished lenses for spectacles; at Bayreuth, they, polished marble. In Belgium he observed the manu- 118 PUNISHMENT AND REFORMATION facture, in the prison at Brussels, of wall-paper; in Portugal, of rope and of lace; in Spain he saw con- victs burning lime. At Naples, they were making shoes. At Milan, the prison was noteworthy for the variety of trades taught: shoemaking, tailoring, black- smithing, cabinet-work, wagon-making, wood-turning, leather-dressing, rope-spinning, ' nail-making, hand- painting on gauze, and many others. At Ziirich, some prisoners, of the trusty sort, were hired put to private citizens by the day. A not uncommon bas-relief placed over the entrance to a workhouse in Germany he describes, which can only be taken as an indication of the rise of the concep- tion of a new and better use of prisons in the centuries to come. At Mayence, there was such a design, which represented a wagon drawn by two stags, two lions, and two wild boars, with an inscription to the effect that, if wild beasts can be tamed and induced to submit to the yoke, we must not despair of reclaiming the vicious and teaching them habits of industry. In a similar bas-relief at Amsterdam, tigers were substi- tuted for stags, and the wagon was loaded with log- wood. With the creation and multiplication of workhouses, the foundation of the modern prison system was firmly laid. The motive that gave birth to them was humane ; they were really a more or less unconscious protest against the undue severity with which minor offences had been pursued. It was but a step to the belief that the punishment of felonies was also excessive. It was not possible to employ prisoners in profitable labor without regular hours and a code of rules; thus was DAWN OF THE REACTION 119 laid the basis of prison discipline. The classification of prisoners was a necessity, at their work and at other times, because of the admixture of classes, of ages and of sexes. Separate quarters had to be provided for women, for debtors, and for the sick. This led to the adoption by degrees of better structural arrangements, and prison architecture began to assume a distinct form. Imprisonment, which the writers of the first half of the seventeenth century characterized as of all known punishments the most wretched and the most injurious, a form of slavery and a living sepulchre, changed its aspect, wherever the new ideas found a congenial soil in which to take root and germinate. It would be an injustice to human nature, however, not to recognize the fact that in all ages, even the dark- est, there were voices raised in angry protest against cruelty even to the guilty, and hearts and hands which were at the service of the unfortunate, even where their misfortunes were the direct result of their own miscon- duct. It is a duty and a pleasure to emphasize this thought. The Ghurch has always insisted upon the obligation to visit those in prison and to remember those in bonds as if bound with them. The Council of Orleans, in 549, declared it to be the duty of all archdeacons to visit prisoners every Sunday, regard- less of their crimes. The Confraternity of Saint John the Beheaded, better known as the Misericordia, the origin of which is shrouded in the Impenetrable mist of antiquity, the Confraternity of Saint Mary at the Cross, which was founded at the time of the plague in Italy, in 1348, and the Confraternity of Death, created at Modena, in 1372, were religious brotherhoods or- 120 PUNISHMENT AND REFORMATION ganized for the amelioration of the sad fate of the imprisoned and the tortured, by a variety of charitable ministrations, but chiefly by attending them on the scaffold, seeing that their dead bodies were given Christian burial, and offering masses for the repose of their souls. At first, the visitation of prisoners was almost exclusively an act of mercy to those under sen- tence of death, possibly because the greater part of those under arrest were in truth sent to the stake or the gallows. But when the new day dawned, of hope for the hopeless and help for the helpless, prison catechumens and chaplains were appointed, who minis- tered to all prisoners ; they were provided with neces- sary medical attendance; and Skilled artisans were employed to teach them the trades at which they were required to work. With the classification of prisoners in prison came also, without much delay, the classification of prisons. Thus the first workhouses, rude and imperfect as they were, miserable as was their construction and govern- ment, yet marked the point of transition from that now obsolete system of criminal jurisprudence to one which, imperfect as it is, and much as it retains of indefensible theories, at least gives promise of some- thing vastly better in the near future. May Heaven speed the day! CHAPTER VII THE REFORMATION OF THE CRIMINAL When the reaction took place against retribution and repression, it was inevitable that the thoughts of men should turn to the reformation of the offender. There has never been a time when this duty has not been insisted upon by sages and moralists. The Hebrew prophet ascribed to the Almighty the question: "Have I any pleasure at all that the wicked should die?" Seneca said that punishment is designed to pro- tect society by removing the offender, to reform its subjects, and to render others more obedient. Plato held that the proper end of punishment is not merely to render to the guilty their due, but at the same time to make them better. He so far anticipated the course of modern reform in his dream of an ideal as to pro- pose the construction of three grades of prisons — one for persons under arrest, one for minor offenders, and one for great criminals. The intermediate prison he would have named Sophronisterion, because it was to be a place for teaching wisdom and continence. Aristotle defined punishment to be "the specific of the soul," and said that law should be "wisdom without passion." Saint Augustine, the venerable bishop of Hippo, in pleading for mercy to certain heretics, who had murdered two priests, declared that, however atro- cious crime may be, it should not awaken anger and 121 122 PUNISHMENT AND REFORMATION the desire for revenge, but should rather be looked upon as an inward malady which it is our duty to heal. Pope Boniface VIII. anticipated the famous dilemma of Mr. Frederick Hill, "reformation or in- capacitation," in one of his edicts, in which he said that, while the prison is to be regarded as a place of detention rather than of retribution, yet the Church would not disapprove the incarceration of confessed or convicted clerical offenders for life or until they should give evidence of repentance. But these were the utterances of individuals. They were in direct opposition to the heathen spirit ; and the Christian spirit has never made more than a partial impress upon social and legislative institutions, even in so-called Christian lands. Yet it is the reformatory idea which distinguishes the penitentiary era of crimi- nal jurisprudence. The honor of having inaugurated that era is gen- erally accorded to Pope Clement XI., who, when he founded the Hospital of Saint Michael, at Rome, in 1704, inscribed over the door: "For the correction and iristruction of profligate youth, that they who when idle were injurious, may when taught become useful, to the '' State." And in the hall where the boys were at work he placed the inscription, "Parum est coercere improbos pcena nisi probos efficias disciplind," which Howard • thus renders: "It is of little advantage to restrain the bad by punishment unless you render them good by discipline." This was a formal and official admission, by the highest authority, that the entire system of retribution and repression had proved a practical fail- ure. The erection of this juvenile reformatory institu- REFORMATION OF THE CRIMINAL 123 tion, therefore, is the landmark which divides two civilizations or two historical epochs. But Saint Michael's was not a prison pure and simple. It con- tained a department for two hundred orphan boys, and other departments for aged and infirm men and women, of whom there were over five hundred, while the number of criminal boys was only fifty. Fpr the latter the plan of the institution provided sixty single cells, in three tiers, one above the other, ten cells in each row, on the two sides of a spacious hall lighted by three large windows, one at the end and one at each side. This corridor was used as a common work- room by day; in the centre hung a placard with one word, "Silence!" These were the essential features of what, a century later, was called the Auburn system. The reformatory idea made but slight progress until the day of John Howard, whose name shines illustri- ous in the annals of humanity and blazes like a star upon the roll of the saints in heaven. The best biogra- phy of him is by Hepworth Dixon. He was born at Hackney, now a suburb of London, Sept. 2, 1726. The humbleness of his origin should be an encourage- ment to every young man possessed of the apostolic spirit, that enthusiasm for humanity which supplies the place of noble birth and even of distinguished talents, if joined to the capacity for persistent and thankless toil. Howard's father was in trade, a dis- senter, and, though he retired from business on a competency, he was not what would even then be re- garded as a man of large wealth. The great prison reformer was but a dull scholar: he never succeeded in acquiring much education, and to the day of his 124 PUNISHMENT AND REFORMATION death he was unable to spell the English language correctly. Two friends assisted him in the prepara- tion of his book on the "State of Prison." One of them reduced his mass of memoranda to order, and the other gave them the requisite literary form. While still a boy he was for a time apprenticed to a grocer. His mind was narrow, his health infirm, but he was intense, religious, firm but kind, somewhat eccentric, and, above all, single-minded and devoted. His first visit to the Continent was as a valetudinarian, seeking for health, before his first marriage. He was twice married and twice a widower. In 1755, after the death of his first wife, he sailed for Lisbon in a vessel named the Hanover, having conceived in his mind a project for the relief of the sufferers- by the great earthquake in Portugal that year. The Hanover was captured by a privateer, and he was for a week a prisoner in a horrible dungeon at Brest. This was no doubt the place where the seed of interest in prisons and prisoners was sown in his philanthropic soul. For fifteen years it lay dormant. During that period he married again, built model cottages for the tenants upon his estate at Cardington, near Bedford ; his only son was born (who afterward died a lunatic) ; he buried his second wife, with whom he had lived seven years, and made another journey for his health. Soon after his return, he was made Sheriff of Bedford and placed in charge of the jail in which a hundred years before John Bunyan had written the "Pilgrim's Progress." This was in 1773. While we were fight- ing for national independence, he carried on, single- handed, a war against the oppression of the guilty and REFORMATION OF THE CRIMINAL 125 the innocent, against precedent, prejudice and self- interest, in which he laid down his life. As Sheriff of Bedford, his attention was soon drawn to the fact that prisoners who had not been indicted, whose accusers had failed to appear against them, and also some who had been acquitted, were detained for want of money to pay the fees allowed by law to the jailer and other officials. He asked the county justices of the peace to make an allowance to the jailer in lieu of fees. They demanded a precedent for charging the county with this expense. Thereupon he rode into several of the adjoining counties in search of one, but learned that the same injustice was practised there as at home; and, looking into the prisons, he witnessed scenes of sorrow which daily he burned with intenser zeal to alleviate. In order to become more thoroughly informed as to its nature and extent, he visited most of the county jails in England. Seeing in two or three of them some forlorn creatures whose aspect was more than ordinarily deplorable, he inquired why this was so, and was informed that they had recently come from the Bridewells. This furnished him a new subject for in- vestigation, and he made a second tour of England. The worst evil he encountered was jail fever, concern- ing the prevalence of which he was examined at the bar of the House of Commons in March, 1774, and the speaker publicly thanked him for his evidence. From this time forward his journeys in the interest of prison reform lasted almost without intermission until his death, of the plague, Jan. 12, 1790, at Cher son, in Russia, where he is buried. During these sixteen years of public service at his 126 PUNISHMENT AND REFORMATION private expense, he visited almost every known country then accessible to European travellers. The first foreign prison that he sought to inspect was the Bas- tille, to which he could not gain admission. He passed through an attack of jail fever in France. In Spain, he requested to be confined for a month in the prison of the Inquisition at Madrid, but was told by one of the secretaries that "None come out under three years, and not then without taking the oath of secrecy." He sailed from Smyrna to Venice in a plague-infected ship, that he might learn by personal experience all about the lazarettos, in which he felt as deep an interest as in the prisons. The vessel was attacked by Mediter- ranean pirates, and with his own hand Howard fired the gun which put them to flight. His death occurred on his sixth tour of the Continental prisons and hospi- tals, when he was on his way for the first time to Turkey and the Orient. His statue was the first that was erected, in the Cathedral of Saint Paul in London. In the history of prison reform, the two greatest names are those of Howard and Beccaria ; one an Eng- lishman, one an Italian ; one a Protestant, the other a Catholic ; one a commoner, the other a nobleman. Bec- caria was younger than Howard by about ten years, but he launched his book against torture ten years before Howard's first publication. Beccaria was a thinker, a student, who worked among his books ; and, though not a lawyer, his attack was directed against criminal law. Howard left his home and his native land, to pursue his studies in the field ; his knowledge of the subject was gained by original observation, and his attack was aimed at the practical abuses in the administration of REFORMATION OF THE CRIMINAL 127 the law. Howard's personal vanity led him to suppose himself much more of a physician than he really was ; but the vanity of Beccaria lay in the direction of politi- cal economy. Beccaria was seduced from the strict orthodoxy of a devout Catholic by the brilliant specu- lation of the Encyclopaedists, and he accepted the illu- sive and fallacious doctrine of the social contract. Howard never swerved from the simple faith of an evangelical Christian ; religious speculation had no at- traction for him ; and his unconscious philosophy was that of Bacon, for he followed, without knowing it, the inductive method. His spirit was less philosophic but more scientific than that of Beccaria, more patient, more laborious, more indefatigable. Beccaria had the languid, indolent temperament of a Southerner; he lacked the lifelong consecration to a single purpose which distinguished his Anglo-Saxon contemporary; he was animated more by ambition and less by a sense of duty. Both were sincere, courageous, and un- daunted by danger or opposition. They had many views and sentiments in comrnon. Both condemned the needless infliction of pain, and disapproved of the death penalty, of life imprisonment, of imprisonment for debt, and of long imprisonment awaiting trial. Both saw the utility and necessity for labor and of education for convicts. But the genius of one was destructive, his eyes were turned toward the historic past, and he dealt to a dying outrage the finishing stroke of the gladiator. The eyes of the other were prophetically directed to the future, his genius was constructive, and he laid with skill the enduring foundations upon which the modern world has erected 128 PUNISHMENT AND REFORMATION the prison system of the nineteenth century. They never met. Howard knew of Beccaria's book, for he quotes it; whether Beccaria was aware of Howard's existence I do not know. But both were the product of the revolutionary age in which they lived, when thrones were tottering and despotism was giving way to political freedom and equality; and both were chosen instruments in the hand of God for the eleva- tion of the race by the better recognition of universal human rights.^ A fitting close to this chapter will be a brief account of the evils in prison construction and management, in England, at the end of the eighteenth century. Howard complained of the private ownership of prisons by the Lords of Manors and by the Bishops. Private pecuniary interest has always been a fruitful source of oppression, whether this interest has taken the form of blackmail or of profits upon convict labor. 1 Beccaria was a thinker, Howard an actor ; hence Howard more impressed the popular imagination, and has been more fre- quently idealized in a literary way, as in the following poetical panegyric : " From realm to realm, with cross or crescent crowned, Where'er mankind in misery are found. O'er burning sands, deep waves, or wilds of snow, Mild Howard journeying seeks the house of woe. Down many a winding step to dungeons dank. Where anguish wails aloud, and fetters clank. To caves bestrewed with many a mould'ring bone, And cells whose echoes only learn to groan. Where no kind bars a whispering friend disclose, No sunbeam enters, and no zephyr blows. He treads, inemulous of fame or wealth. Profuse of toil, and prodigal of health ; Leads stern-eyed Justice to the dark domains, If not to sever, to relax their chains ; Gives to the babes the self-devoted wife, To her fond husband liberty and life. Onward he moves; disease and death retire; While murmuring demons hate, they still admire." REFORMATION OF THE CRIMINAL 129 In the Bishop of Ely's prison, the luckless captives lay upon their backs, upon the floor, with spiked iron collars around their necks, and heavy iron bars across their legs. (A similar account is given of an ancient castle in Transylvania, where, as late as 1840, prison- ers were laid upon their backs every night, with their feet fast in stocks, so that they could not move. ) He reprobated the toleration of the practice of garnish, footing, or chummage, as it was variously called, the nature of which can be inferred from the command given by the jailer to each new arrival, "Pay or strip." He saw, in the rules which authorized the collection of fees from prisoners, on sundry pretexts, a fruitful occasion of wrong; and he desired the abolition of the fee system and the payment of fixed salaries instead. He found men and women not only ragged but actu- ally dying of starvation. In some Bridewells no food was furnished. The keepers, on applying to the magis- trates for an order to supply it, had been silenced by the brutal answer, "Let them work or starve." In many jails food was not given to debtors, who were dependent on charity for the continuation of their existence. Prisoners who had money were required to buy supplies from the jailer, who kept a tap, where not only food but drink was sold, at an exorbitant price. The sale of beer by jailers was prohibited, under George III., but the statute was evaded by giv- ing permission to debtors to sell. The profits of the tap, together with the fees and garnish money, enabled the jailer to pay rent to the owner of the prison, if it was a private prison. The Duke of Portland charged eighteen guineas a year for a prison of one room. 130 PUNISHMENT AND REFORMATION with a cellar under it. The office of Warden of the Fleet was granted by Elizabeth to Sir Jeremy Which- cot and his heirs forever. Later, the patent was set aside, on the ground of its descent to persons not qualified to execute the duties of the position, and a grant of life was made of it to Baldwin Leighton. After his death, it was given to one Huggins and his son, for the term of their lives, in consideration of £5000 paid to Clarendon, the Lord Chancellor. Hug- gins & Son sold out to Bambridge & Corbett, whose cruelty to prisoners for the sake of extorting money from them resulted in a Parliamentary inquiry and their having to stand seven trials for murder and an- other for theft. The Warden of the Marshalsea re- joiced in an income of £3000 or £4000 a year. One method of extortion was to iron prisoners heavily and make them pay to have their fetters removed or light- ened. The bedding furnished without charge was as scanty as the food ; prisoners often lay upon the straw, which was not changed and finally wore into fine dust. Outsiders were freely admitted, even loose women to spend the night, if money could be thus made by the jailer. There was no privacy which was not bought. All mingled freely, of both sexes; and poor debtors, like the Vicar of Wakefield, had their families with them as permanent residents of an abode the atmos- phere of which was as foul and obscene as any iupon earth. Even in the Bridewells, the object of whose establishment seems in many instances to have been forgotten, it often happened that no occupation was provided. The time was spent in gaming, fighting, dawdling, recounting real or fancied criminal exploits, REFORMATION OF THE CRIMINAL 131 planning fresh depredations, and horse-play. A favor- ite amusement was the holding of a mock court. ^ The sanitary condition of the prisons was worse, if possible, than their moral state. They lacked ventilation and drainage, there was usually no water supply, they were poorly lighted, and they were abominably filthy. Some of them were badly overcrowded. In the majority, there was no medical attendance; in some there was medical care of felons, but not of debtors. Malignant typhus fever, called jail fever or ship fever, since those were the places in which it was most likely to originate, was generally prevalent. Howard affirmed that more prisoners were destroyed by this fever than were put to death by all the public executioners in the kingdom. The disease was not confined to prisons, but was propa- gated by contagion in the courts. The "Bloody As- size" was held in Oxford Castle in 1577. All who were present, including the Lord Chief Baron, the 1 Mr. Buxton, in his "Inquiry" (1818) describes the trials in Newgate, as follows : "Their code is a subject of some curiosity. When any prisoner commits an offence against the community, or against an individual, he is tried. Some one, generally the oldest and most dexterous thief, is appointed judge; a towel tied in knots is hung on each side of his head, in imitation of a wig. He takes his seat, if he can find one, with all form and decorum; and to call him anything but 'my lord' is a high mis- demeanor. A jury is then appointed, and regularly sworn, and the culprit is brought up. Unhappily, justice is not administered with quite the same integrity within the prison as without it. The most trifling bribe to the judge will secure an acquittal, but the neglect of this formality is a sure prelude to condemnation. The punishments are various; standing in the pillory is the heaviest. The criminal's head is placed between the legs of a chair, and his arms stretched out are attached to it; he then carries about this machine ; but any punishment, however heinous the offence, may be commuted into a fine, to be spent in gin, for the use of the judge and jury." A somewhat similar moot court was tolerated by the local authorities in the county jail at Denver, Colorado, some years ago, and the United States court was obliged to put an end to it. 132 PUNISHMENT AND REF9RMATION Sheriff, and about three hundred more, died within forty hours. In 1730, at Taunton, several hundred, among whom were the Chief Baron and the Sheriff, died from jail fever contracted at the Lent Assize there held. The odor in some of the prisons that he visited was so fetid and so clinging, that he had to travel on horseback on account of it, not being able to endure the scent of his clothing in the confined atmosphere of a coach. It is greatly to his credit, that, with no medical education, he should have divined the cause of this fever and the remedy for it, and that his representations with reference to it resulted in its entire suppression in England within seven or eight years from the time that he entered upon his labors. His strictures upon the non-residence of jailers and the infrequency of jail deliveries were also well-de- served ; and he fearlessly held up to the English people the superiority in so many particulars of the Conti- nental prisons, especially in those of cleanliness and of industrial employment of prisoners. The prisons of Holland, he said, were so clean that one would scarcely believe them to be prisons. But one advantage the English prisons could congratulate themselves upon; there was no chamber of torture in any of them. It is evident that the reformation of prisons had to precede, in the logical and historical order, the re- formation of prisoners. Probably the same is true, at the present time, of the slums in our great cities; their physical must precede their spiritual transforma- tion. CHAPTER VIII THE PENNSYLVANIA AND AUBURN SYSTEMS A PRELIMINARY hint as to prison architecture had been afforded in the cellular construction of the Hospi- tal of Saint Michael at Rome. But the real beginning of that art, in its influence upon prison construction in our time, was the building, by Vilain XIIIL, of the prison of Ghent. Vilain was a man of extraordinary capacity and character: a gentleman by birth, who was Burgomaster first of the town of Alost and afterward of the town of Ghent. A Deputy of Flanders, the Em- press Maria Theresa made him a Viscount, in recogni- tion of the great work he had done in the reform of the Flemish fiscal system. There is a natural connection between mendicity and crime. Habitual hunger develops and fixes the crimi- nal character. All men must recognize the similarity between the characteristics of a petty criminal and those of a vagrant. There are men who beg when they cannot steal, and who steal when they cannot beg. The beggar and the thief are alike lacking in fore- sight, in the power of application, in continuity of thought, in personal, moral responsibility. Both are constitutional liars. Both feel that the world owes them a living. Neither sustains any permanent rela- tion to society at large, except one of antagonism to 133 134 PUNISHMENT AND REFORMATION social order; and often, in the case of both, there is wanting any attachment to the soil. After the breaking-up of the feudal system, mendi- city was very prevalent in Europe. The Crusades THE PRISON OF GHENT General Perspective View (from a Model by Braemt). helped materially to develop it. It received a fresh and mighty impulse, on the return of the Crusaders. The Church did not frown upon it; the mendicant friars were a familiar mediaeval sight, and they set a bad example for imitation by men who needed not to PENNSYLVANIA AND AUBURN SYSTEMS 135 take any vow of poverty and who would not take the vow of chastity or of obedience. At the close of the eighteenth century, Flanders was overrun by an idle and vicious horde of supposed paupers, more than half o^ whom were impostors, who devastated the country, cutting and burning timber, robbing the peasants, and committing depredations which called for severe chas- tisement. But severe measures are rarely adopted any- where for dealing with tramps; and still more rarely are they enforced. In 1771 the Deputies of the Estates of Flanders prayed Vilain to formulate and submit for their adoption a plan of relief. In April he re- sponded to this appeal in a memoir which bore as its motto two familiar scriptural quotations: "If any man will not work, neither let him eat," and "In the sweat of thy brow shalt thou eat bread." He suggested the erection of a maison de force or workhouse, the cost of which he estimated at six hundred thousand florins. This proposition was discussed by the Provincial As- sembly, adopted in July, approved by the Empress of Austria in January, the necessary tax was levied, and in 1773 the prison was partially finished and occupied. The dates are important, for the period of the Amer- ican Revolution was that of so many of the movements which, in their entirety, formed the beginning of prison reform. Before submitting a drawing of the outline of this famous structure, the remark is in place at this point, that the elements of prison architecture are very simple. The first prison was a single cell, usually at the top or bottom of a tower, lighted by a narrow window if at 136 PUNISHMENT AND REFORMATION all. It may have been square, circular or octagonal, but is fairly represented by a square, as follows: — Two cells would look thus: — Suppose a corridor added, on one side: — Or placed in the centre: — These are the elementary principles of cellular con- struction. There will be a corridor or there will be none ; if there is a corridor, it will be in the centre or on one side. If on one side, it may be on two or three or four — ^the principle is the same. If the corridor is in the centre, the cells will have outside windows, and the corridor will be lighted from the roof or by one or two end windows. If the cells are in the centre, PENNSYLVANIA AND AUBURN SYSTEMS 137 the corridors will be lighted, and the cells will not. The arrangement of cells in long rows, or in tiers THE PRISON OF GHENT Ground Plan (from the Memoir by Vilain xiiii). one above the other, does not change the principle; neither does the size of the cells, nor the manner in which they are furnished. 138 PUNISHMENT AND REFORMATION In the Hospital of Saint Michael, at Rome, the corri- dor was in the centre, as at Philadelphia; but in the prison of Ghent, the cells were in the centre, and the corridors next the outer walls, as at Auburn. This is, I think, the oldest historical example of that mode of construction. Another novelty in its plan was the ar- rangement of the departments or wings. The outline of the building was octagonal, with eight trapezoidal courts between eight wings radiating from an octago- nal centre, enclosing an octagonal central court, mak- ing nine courts in all ; the wings were connected at the extremities. The stellar form given to this prison may have influenced the architecture of the penitentiary at Philadelphia,^ and the placing of the cells that of the prison at Auburil, so affecting the direction of the movement for prison reform in two ways at once, as we shall see. From the book in which Vilain gives an elaborate account of the prison at Ghent, its aim and spirit, its organization and rules, and the organization of labor in it (with many interesting observations on the nascent 1 Sir Edmund F. DuCane, in "The Punishment and Preven- tion of Crime," following no doubt other writers in whose accu- racy he supposed that he could have confidence, asserts that the radiating plan of prison construction was first adopted at Rome, in the erection of San Michele. That the distinguished head of the English prison System has not himself carefully studied the subject at first-hand is evident, because he expresses a doubt whether John Howard had seen San Michele, though the great prison reformer gives a description and partial drawings of it in his work "On the State of Prisons." Howard does not intimate that it was built on the radiating plan. Nor does Signor M. Beltrani Scalia, in his book "Sul Governo e suUa Riforma delle Carceri in Italia"; the latter, on the contrary, says that San Michele was "all under a single roof." What evidence is there that the plan of the Prison of Ghent was borrowed from Rome? None, so far as the author knows. If there is any, he would be glad to have his attention drawn to it. PENNSYLVANIA AND AUBURN SYSTEMS 139 manufactures of his day, in a state which has ever occupied an honorable preeminence as an industrial THE PRISON OF GHENT First and Second Story Plan (from tbe Memoir by Vilain xiiii). centre, which throw more or less light upon the origin of the factory system), it is clear that the architectural merits of the prison constitute its smallest claim upon 140 PUNISHMENT AND REFORMATION our attention. It was remarkable, however, for the in- telligent appreciation which it exhibited of the essential correspondence between structure and function, and for the skill with which the mutual adaptations of the two were experimentally wrought out. The design seems not to have been fully executed; one-half of it was never built. Vilain has been justly entitled "the father of modern penitentiary science." In the first place, his prison had for its avowed aim the reformation of those committed to it. Then he believed in industry as the primary agency for reformation of the crimi- nal character. The labor which he regarded as re- formatory was not, like the English crank and tread- mill and shotdrill, perfunctory physical exercise of a semi-punitive, semi-sanitary sort; nor was it, like picking oakum, as nearly unproductive as can well be imagined. Furthermore, he recognized and insisted upon the importance of trade instruction, with a view to putting the prisoner in condition to earn an honest living, when discharged. Finally, he appreciated the importance, in the selection of prison industries, of choosing, as far as practicable, such as would come least into competition with free labor on the outside. For this reason he rejected several excellent business offers to introduce certain lines of manufacture into the prison, one of which was the manufacture of tobacco, which, besides, he regarded as demoralizing to the inmates. He sought to find trades not followed in Flanders, but which, if adopted, might prove prof- itable to the Flemish people. In fact, there was a great diversity of avocations followed in the prison, PENNSYLVANIA AND AUBURN SYSTEMS 141 among which may be mentioned: carding, spinning, weaving, shoemaking, tailoring, carpenter-work, and the manufacture of wool and cotton cards. To en- courage prisoners to work, he allowed them a per-^ centage of their earnings, and the opportunity to do overwork. Part of their earnings was their own, to expend in the prison; part was retained, to be given to them at their discharge, so that they might not be penniless and on that account relapse into crime. The rasping of logwood was reserved as a penal pursuit. Few men have ever better expressed the nature and end of discipline than he, in the first of sixty-three police regulations framed for the government of pris- oners: "Discipline consists in the exact execution of every order given by a superior officer, without ques- tion or remark; and in the punishment of every act of disobedience, in order to achieve what the senti- ments of honor and probity are insufficient to accom- plish." This he expected to secure by constant vigil- ance on the part of guards, and by the gradation of disciplinary punishments, according to the degree of offences and the amenability of the thoughtless or unruly to admonitions and warnings, culminating in the lash, solitary imprisonment, and the prolongation- of the term of incarceration, at the rate of a week of,' added detention for each day in the dungeon. Every prisoner had a cell to himself at night, the work-shops were in common, and meals were served at a common table. He provided a resident physician and a resident chaplain. Proper attention was paid to the classification of 142 PUNISHMENT AND REFORMATION prisoners. Felons were separated from misdemeanants and vagabonds, there was a distinct quarter for women, and he designed to make special provision for children also. His purpose being to combat mendicity, he al- lowed the commitment of children of the very poor by their parents, at a moderate charge ; the directors sub- scribed a fund at their own expense, the interest of which was to be applied to the payment of a school- master. Commitments for grave offences were by commuta- tion of sentence from corporal or capital punishment to simple imprisonment. Vilain objected to life sen- tences, as tending to produce despair and therefore in- submission; and to short sentences, as not sufficient to teach the prisoner a trade, and therefore not re- formatory. He wanted a minimum sentence of at least a year. He thought it unfair to authorize by law the detention of a convict after the expiration of his term of sentence, by way of penalty for miscon- duct in prison, and not to admit of a reduction of , sentence as a reward for good conduct ; but remarked that, since the right of pardon and commutation of sentence is a royal prerogative, the prison authorities ought to be empowered and required to recommend convicts for pardon from time to time, at their discre- tion. This was a sort of prophetic approval of what is now known as the iiideterminate seatence, or at least of our "good time" laws. Such enlightenment in advance of his age is truly wonderful. It is not surprising that the prison at Ghent excited Howard's warm admiration. On the oc- casion of his third visit, in 1783, he observes: — PENNSYLVANIA AND AUBURN SYSTEMS 143 "I found a great alteration for the worse ; the flourishing and useful manufactory destroyed; and the looms and utensils all sold, in consequence of the Emperor's too hasty attention to a petition from a few interested persons. That which ought to be the leading view in all such houses is now lost in this house." Maria Theresa of Austria, whose noble ambition was to reform every part of the imperial administration, had been succeeded by her son, Joseph the Second, who was also a reformer, but in whose mind the pe- cuniary interest of court favorites or the friends of such favorites outweighed all considerations of the wel- fare of prisoners and of the advantage to society to be expected from their reformation. A few years later, Flanders was occupied by the French, who in- augurated the system of contract labor in this prison, so that it never fully recovered its former prestige as a reformatory institution. Nevertheless, it was the birthplace of the new peni- tentiary dispensation. The first signal instance of its influence upon human thought was the publication, in 1787, of a series of letters by Jeremy Bentham, then in Russia, to a friend in England, entitled "Panopti- con, or the Inspection House." The Panopticon seems to have been- the joint invention of himself and his brother, who was an architect, employed to build a Russian prison (which was not erected, because of the war which just then broke out between Russia and Turkey) ; and the distinguished English publicists, see- ing an advertisement that a house of correction was about to be erected somewhere in England, thought that a modification of the Russian plan would answer for that. A comparison of the drawings for the 144 PUNISHMENT AND REFORMATION PENNSYLVANIA AND AUBURN SYSTEMS 145 a o in a a o o u t— ( H Ph O w HI •a a 3 o O u c a m a 146 PUNISHMENT AND REFORMATION Panopticon with those for the prison of Ghent will show that they have little in common, except the general form of a circular structure. The Panopticon was to be in effect a gigantic lantern, lighted by a glass roof, with cells next the outer wall, facing- the centre, and an apartment for the Inspector in the middle, so that the interior of each cell would be at all times visible from a single point. The scheme had little merit, in comparison with its defects; and, al- though efforts were successively made to have it adopted in Ireland,- England, France, and the United States, it was everywhere rejected. A committee re- ported adversely upon it in New York, in 181 1. It can be regarded in no other light than as one of the curi- osities of prison history. There is, however, little doubt that the design of the Eastern Penitentiary of Pennsylvania was suggested by that of the prison of Ghent.^ Both are radiating prisons, with wings extending in various directions from a common centre, like the spokes of a wheel or the arm of a windmill. In the Philadelphia prison, the cells are next the outer walls, instead of in the centre, as at Ghent; and the connecting structures at ^ When the idea of the penitentiary system dawned upon the world, there were no precedents by which to be directed in its development. In the matter of architectural construction, the friends of an improved prison discipline were divided between the "radiating" and the "circular" plans. The Panopticon was strictly circular; the Eastern Penitentiary at Philadelphia was strictly stellar. Between the two were the Prison of Ghent, built before either of them, and the Millbank Penitentiary, in London, built after them both. Ghent was an octagon, with eight surrounding triangles; Millbank was a hexagon, with six sur- rounding pentagons. The arrangement of cells, however, at Ghent, was predominantly radiating; at Millbank it was pre- dominantly circular in principle, though not really circular in PENNSYLVANIA AND AUBURN SYSTEMS 147 the extremities are lacking, as if the felloes of a wheel had not yet been -fitted to the spokes. The resemblance in other respects is quite striking. William Penn, the founder of the colony which bears his name, had been a prisoner in England, because of his religious belief; he had, as a Quaker preacher, visited Holland, and had been greatly impressed by the Dutch workhouses. The denomination to which he belonged has always been noted for its benevolent spirit ; the Friends condemn war and slavery and capi- tal punishment. When Penn framed a criminal code, he reduced the number of capital crimes (which in his native country aggregated between one and two hun- dred) to one, namely, wilful murder. The Quakers took up the cause of prison, reform, and made a re- ligion of it. The Philadelphia Society for Relieving Distressed Prisoners was the parent of all modern prison associations. It was organized in 1776, sus- pended operations during the War of Independence, and was reorganized in 1787, when the war had ended, under the new title of "The Philadelphia Society for Alleviating the Miseries of Public Prisons." There was at that time a jail in Philadelphia, called form — each of the pentagons was, so to speak, a modified circle, that is, in the words of Mr. Holford, the prison was "so buih as to enclose its courtyards within its perimeter." Archbishop Whately said, as Jate as 1832, "I do not think there is any one system which, in the present state of our knowledge, we are authorized to fix on as decidedly preferable to all others; it would certainly be the most modest, and I think it would also be the wisest, procedure, to give a fair trial to each of several dif- ferent ones, which have been well recommended." He was not speaking of architecture, but the remark illustrates the uncertainty which prevailed as to the best course to pursue. In fact, the radiating system of construction is still highly esteemed, after trial; the circular plan has been abandoned. 148 PUNISHMENT AND REFORMATION the Walnut Street Jail/ the condition of which was wellnigh intolerable. It was a congregate prison, with- out discipline. T^ie first time that any clergyman at- tempted to conduct religious services in the yard, the jailer, as a precaution against riot and to insure the preacher's personal safety, had a cannon brought into the yard, and placed beside it a man with a lighted match. It is possible that the evils of promiscuous association as here seen were one of the inciting causes of the advocacy by the Quakers of separate imprison- ment. The idea of strictly cellular isolation by day as well as by night was not original with them ; at least it was not new in the world. The oubliettes and the dungeons of the Inquisition were made for solitary confinement of prisoners — ^but with a view to hastening their death. The Church had a motto, Ecdesia abhorrent a san- guine, which it construed literally, but had ways of putting its victims to death, in some instances, without the shedding of blood; for example, in the horrible dungeons, named Fade in pace, which means "Depart in peace." They are said to have been invented by a Prior of Saint Martin-in-the-Fields, named Matthew, and were places where men were allowed to starve to death. But the first mention of solitary incarceration as a means of bringing an offender to repentance 1 The old jail at the corner of Third and Market Streets having become insufficient, the Legislature, in 1773, authorized the county commissioners to build a new prison at the southeast corner of Sixth and Walnut Streets, a description of which may be consulted in the United States Gazette for October, 1835. A new prison in Arch Street was provided for in 1803. In 1831 both the Walnut and Arch Street prisons were sold, and the Moyamensing County Prison erected instead. PENNSYLVANIA AND AUBURN SYSTEMS 149 (which was the Quaker idea) that I have been able to discover, is in the following extract from the posthu- mous works of Mabillon, a Benedictine of the Abbey of Saint Germain, in Paris, one of the most learned me*i of the age of Louis XIV. : — "Penitents might be secluded in cells like those of the Car- thusian monks, and there employed in various sorts of labor. To each cell might be joined a little garden, where, at appointed hours, they might take an airing and cultivate the ground. They might, when assisting in public worship, be placed in separate stalls. Their food should be coarse, and their fasts frequent. No visitors from the outside should be admitted ; but the solitude of prisoners' lives should be unbroken, except by the visits of the Superior or some person deputed by him to exhort and console them." Other references to the separate system as an ideal are scattered along the byways of literature. The Christian Knowledge Society of London, organized in 1699, appointed a committee on prisons, of which Dr. Thomas Bray was the chairman. He made a report in 1700, followed, in 1710, by an "Essay toward the Reformation of Newgate and the Other Prisons in and about London," which is reprinted in Dixon's life of Howard. In these publications he proposed separate confinement for prisoners under sentence of death, but limited it to them. In 1740 or 1750 (different authori- ties give dififerent dates) Bishop Butler preached a sermon before the Lord Mayor, in which he advocated separate cells for all prisoners; he said that he con- sidered preparation for life even more important than preparation for death. A clergyman named Denne took the same position, in 1772, in a letter to Sir Howard Ladbrooke. Howard himself favored it, but 150 PUNISHMENT AND REFORMATION not without reservation. He had seen separation prac- tised in Europe. Of Holland he reports that "in most of the prisons, there are so many rooms, that each prisoner is kept separate; they never go out." In Switzerland, in every canton visited by him, felons each had a room to themselves, "that they might not tutor one another." In his chapter on permanent im- provements, he expresses his own opinion: — "I wish to have so many small rooms or cabins, that each criminal may sleep alone. If it be difficult to prevent their being together in the daytime, they should by all means be separated at night. Solitude and silence are favorable to reflection, and may possibly lead them to repentance." Elsewhere he has said that he wished "all prisoners to have separate rooms, for hours of thoughtfulness and reflection are necessary" ; and added that he meant by day as well as by night, but yet "not absolute soli- tude." That he dreaded the effect of too protracted isolation is apparent from the following quotation: — ■ "It should be considered by those who are ready to commit for a long term petty offenders to absolute solitude, that such a state is more than human nature can bear without the hazard of distraction or despair." The earliest prisons built upon the separate system in England were built, one of them at least, under Howard's eye, or after consultation with him, the jail at Gloucester, built by Sir G. O. Paul, an eminent magistrate, about 1785, and opened in 1791, under a special Act of Parliament for the regulation of the Gloucestershire prisons. A separate cell for each pris- oner was also provided in the jail at Horsham, built in 1779, six years before that of Gloucester, but there PENNSYLVANIA AND AUBURN SYSTEMS 151 is no evidence that the separation of prisoners by night and by day was there enforced. Solitary imprisonment was prescribed by the revolu- tionary penal code of France, adopted in 1791, in the following words: — "Every convict sentenced to la gene shall be incarcerated alone in a light cell, and shall not be put in irons nor be branded ; but he shall be interdicted from all communication, during the term of his sentence, with other convicts or with persons from the outside." 1 This was almost a literal transcript from the Aus- trian code published by Joseph II. in 1785; but the Austrian original contained a clause forbidding the giving to any prisoner, at public expense, of any food other than bread and water, which was substantially equivalent to slow starvation. The purpose of the Austrian code was the immemorial wish to suppress crime by severity; but the French modification of it was animated by a half formed thought of the possi- bility that the prisoner might be benefited by seclusion. Notwithstanding these various premonitions of the ^ This reminds one of the dreadful inscription which the great and humane Edward Livingston proposed, in his "System of Penal Law for the State of Louisiana," to have inscribed on every murderer's cell : "In this cell is confined, to pass his life in solitude and sorrow, A. B., convicted of the murder of C. D. ; his food is bread of the coarsest kind, his drink is water, mingled with his tears ; he is dead to the world ; this cell is his grave ; his existence is prolonged, that he may remember his crime and repent it, and that the continuance* of his punishment may deter others from the indulgence of hatred, avarice, sensuality, and the passions which led to the crime he has committed. When the Almighty, in his due time, shall exercise toward him that dis- pensation which he himself arrogantly and wickedly usurped toward another, his body is to be dissected, and his soul will abide that judgment which Divine Justice shall decree." There is no doubt that this was meant as an inducement to the Legis- lature to be content with the abolition of the death penalty, for which it was designed to be a substitute. 152 PUNISHMENT AND REFORMATION coming revolution in prison construction and manage- ment, the real foundation of the separate system can hardly be said to have been laid until, in April, 1790, the Legislature of Pennsylvania directed the County ' Commissioners of the county of Philadelphia to erect, in the yard of the Walnut Street Jail, "a suitable num- ber of cells six feet in width, eight feet in length, and nine feet in height," which, "without unnecessary ex- clusion of air and light, will prevent all external com- munication, for the purpose of confining there the more hardened and atrocious offenders, who have been sentenced to hard labor for a term of -years, or who shall be sentenced thereto by virtue of this act." Unfortunately, no labor was provided for convicts thus separately confined. The old Quakers, sensitive as they were to the infliction of bodily pain, seem to have been unable to form in their minds an image of the fearful mental torture of solitude in idleness, as they did not foresee the inevitable affect upon the prisoner's physical and mental health. The condition of prisons in America, previous to this beginning of prison reform, and in many places for years afterward, was about as bad as in England and elsewhere in Europe. In the State of Connecticut, there was at Simsbury,^ for fifty years or more (1773 1 The Simsbury copper mines were worked at intervals for about seventy years prior to the American Revolution, then aban- doned and used by the Colony of Connecticut in 1773 as a per- manent prison. The first prisoner was committed Dec. 2, 1773. Congress applied in 1781 for the use of these mines as a military prison, but, before the completion of the negotiation, the war closed. For a time mining was followed, but given up on account of the use made of the mining tools by the prisoners in digging out. Afterward they were employed in making wrought nails. This was the Connecticut State Prison from 1774 to 1827. PENNSYLVANIA AND AUBURN SYSTEMS 153 to 1827) an underground prison which was merely an abandoned mine,. into which prisoners were thrust at night with their feet fast to iron bars and their bodies attached by chains around, the neck to a great beam above. It was, notwithstanding this severity, a place where revelry ran riot, and at times pandemonium reigned. The' cells in the Maine State Prison cer- tainly as late as 1828 were in the form of pits, entered by a small ladder, through a grated iron door, from the top ; for at that time the intention of the authorities was to make enough more cells just like them to admit of the solitary confinement of every inmate. In 1817, the Pennsylvania Legislature authorized the construction of two penitentiaries, one in Phila- . delphia and the other at Pittsburgh. Both were planned by an architect to whom the world is under a perma- nent obligation — Edward Haviland. That at Pitts- burgh was first built and occupied ; the arrangement of the cells in a circle was bad, and has not been imitated. That in Philadelphia has served as a model which has been copied in all parts of the world, with variations, but preserving its main characteristics, the radiating wings, with cells next the outer walls and a corridor in the centre. The drawing shows the original design, which has been departed from and greatly injured by the construction of additional wings, for which there was really no available space ; but the more recent cells are an improvement upon those first built. The construction of individual cells was a natural and very praiseworthy reaction against the recognized evils of confinement in association, especially in idle- ness and without much attempt at discipline. The 154 PUNISHMENT AND REFORMATION preamble to the Act of Parliament adopted in 1779, at the persistent instance of Blackstone, Howard and Eden (afterward Lord Auckland), defined the object of the penitentiary system to be: "to seclude the crimi- nals from their former associates, to separate those for whom hopes might be entertained from those who were desperate, to teach them useful trades, to give them religious instruction, and to provide them with recommendation to the world and the means of obtain- ing an honest livelihood after the expiration of the terms of their punishment." The questions to be de- cided were, first, how far the classification of prisoners required to be carried, whether they should be grouped or isolated; and second, whether, if isolation were to •be the rule, it should be by night only or both by day and night. At the same time that the people of Pennsylvania were grappling with these problems, the people of New York were doing the same, but finding a different solu- tion. There new laws and a new system had been ap- proved in 1797, but the Auburn State Prison was not created until 1816. It was designed for separation by night only ; the convicts were employed during the day in large workshops, in which, under the superinten- dency of Elam Lynds, formerly a captain in the army, the rule of absolute silence was enforced with un- flinching sternness. Captain Lynds said that he re- garded flogging as the most effective, and at the same time the most humane, of all punishments, since it did no injury to the prisoner's health and in no wise im- paired his physical strength ; he did not believe that a large prison could be governed without it. This be- 156 PUNISHMENT AND REFORMATION lief actuated his conduct. He had little or no faith in the possibility of reformation of convicts; he be- lieved them all to be arrant cowards, and encouraged in the sub-officers the disposition to treat them with contempt. A tale is related of him, that, having heard that the prison barber had threatened to cut his throat, he seated himself in the chair, demanded to be shaved by him, and, at the conclusion of the ceremony, re- marked to the abashed and intimidated man, "I am stronger without a weapon than you are when armed." Accordingly, corporal punishment was frequent at Au- burn; it was inflicted upon the spot, the moment that a -man was detected in communication with a fellow- prisoner. Captain L)Tids proved to be such a success- ful disciplinarian, that he was selected to build the new State Prison at Sing Sing, created by act of 1825, which he did with convict labor, to the astonishment of mankind, who did not suppose such an achievement within the bounds of possibility. Now that the nature of prisoners is better understood, it is so common as to excite no remark. Silence was, of course, so far as it could be enforced, in itself a form of separation of prisoners. In 1819, the New York Legislature authorized and directed the building of a wing at Auburn with cells like those in the Walnut Street Jail at Philadelphia, for trying the effect of cellular isolation upon prisoners. The block, which contained eighty cells, was occupied in 1821 ; but the results, in the direction of insanity and impaired health, were reported to be such, that the ex- periment was abandoned in 1823. The men confined to PENNSYLVANIA AND AUBURN SYSTEMS 157 it were given no work ; five of them died within a year, and one of them went furiously mad. In 1827, the Pittsburgh prison was ready for the reception of convicts. There was no provision for the employment of convicts committed to it. A commit- tee of the Legislature of Pennsylvania, appointed in December of that year, to report whether solitary con- finement should be the rule in the Eastern Penitentiary, advised the introduction into it of the Auburn system ; but, under the influence of Roberts Vaux and others, the recommendation of the committee was rejected. It was determined, however, no longer to confine pris- oners in solitary cells in complete idleness; and, in 1829, the legislature prescribed employment for all prisoners. Between the Pennsylvania and Auburn systems, so- called, a fierce rivalry sprang up. On the one hand, it was insisted that the remedy for the mutual corrup- tion engendered by contact of convicts in association can only be prevented by putting an end to all com- munication between them. To this it was replied that there can be no such contamination under the rule of silence. The solitary or separate system was admitted to be the more costly. Its opponents declared that it was cruel and dangerous ; its friends denied the charge. Lafayette was not favorable to it, because, he said, he remembered that when he was incarcerated in the for- tress of Olmutz, he was forever planning new revolu- tions, from which he inferred that an ordinary criminal would in like manner plan, in the solitude of his cell, fresh depredations upon society; and also because he had seen the wretched inmates of the Bastille released 158 PUNISHMENT AND REFORMATION from their dungeons, and he knew that many of them had been reduced to a condition of complete imbecility. Edward Livingston, on the other hand, was its admirer and advocate. The Boston Prison Society, founded in 1826, and the New York Prison Association, organized in 1845, waged a long and bitter controversy over the question at issue, with the Pennsylvania Society. The neces- sity for prison reform societies was, in the formative state of the penitentiary system, very great. Our fore- fathers, who had emigrated to secure for themselves the blessings of civil and religious freedom (to say nothing of making their fortunes in the New World) were capable of as arbitrary arid cruel acts as any of. their Old World oppressors, as is witnessed not only by the insane persecution in New England of old women and young girls as witches, but by various other facts less familiar. In New York, for example, negro slaves were sometimes burned alive, and, in order that they might be the longer in burning, green wood was used in making the fire. Worse even than that, they were sometimes hung up in a sort of frame and left to starve to death and their bodies to be eaten by the birds. The state of sentiment in Massachusetts may be in- ferred from a declaration adopted by the directors of the Massachusetts State Prison in 1815, in which the doctrine was laid down that the discipline should be as severe as the law of humanity will by any means tolerate ; that a prisoner's mind requires to be reduced to a state of humiliation; that all intercourse of pris- oners with each other, and still more with the outer world, ought to be suppressed; that no newspaper PENNSYLVANIA AND AUBURN SYSTEMS 159 should be allowed inside the walls; that a prison is a world by itself, whose inhabitants are not supposed to know anything of what is passing without its orbit; that the rules should be rigidly enforced, and the smallest deviation from duty severely punished; that the punishment of a convict is incomplete, so long as his mind is not conquered — convicts should be brought to the condition of clay in the hands of the potter, sub- ject to be moulded into any form which the govern- ment of the prison might regard as necessary. The guards were exhorted to think of the prison as a vol- cano filled with burning lava, which, if not restrained, would destroy both friends and foes; therefore they were always to be on their watch against a possible eruption. I dare say that the fact is almost wholly forgotten that the ancient practice of tattooing Massa- chusetts prisoners on the arm with the words "Massa- chusetts State Prison" was not abolished by law until June 12, 1829. The example set in the Walnut Street Jail was fol- lowed here and there, in the United States, for a longer or shorter period, and with some limitations and reser- vations ; but it failed to produce a permanent impres- sion upon the American prison system. Solitary confinement for some proportional part of the term of sentence was authorized in Maryland in 1809, and in New Jersey in 1820. Solitary confinement as a dis- ciplinary punishment in a State prison or penitentiary, with or without prescribed limits, is not uncommon; and the general, opinion of American experts in penol- ogy is favorable, to the complete isolation of prisoners under arrest and awaiting trial. But the only States, 160 PUNISHMENT AND REFORMATION I think, which have experimented with it, except Penn- sylvania, as the principle of a prison system, are Vir- ginia, where it can hardly be said to have had a fair trial — it was in 1822 — ^the cells were in a basement, never warmed, where the water stood in drops upon the wall; New Jersey, which adopted it in 1833 and abandoned it in 1838, and Rhode Island, which adopted it in 1838 and abandoned it in 1842 or 1843. It was given up in the Western Penitentiary of Pennsylvania in 1869 ; and the model prison erected on the bank of the Ohio River, at Allegheny, is on the congregate plan. Even at Philadelphia, the modifications introduced into the system have been great : ' its harsher features have been gradually eliminated, and the failure of the legislature to provide funds for the proper enlargement of the establishment has compelled a partial abandon- ment of the attempt to carry it out in full, according to its original intention. The number of cells is so much less than that of the convicts who occupy them, that "doubling up" was inevitable. In some instances, how- ever, particularly in the female wing, the association of prisoners is allowed, in the cells or at work, from mo- tives of humanity, and it is admitted to be needless and unprofitable to insist upon the absolute isolation of all convicts, of every class. The conflict between the Pennsylvania and Auburn systems attracted the notice of the civilized world, and various European commissions crossed the Atlantic, to examine and report upon them; of these reports four are conspicuous by their thoroughness. Messrs. Beau- mont and De Tocqueville came first, in 1831, at their PENNSYLVANIA AND AUBURN SYSTEMS 161 own expense, but accredited as the representatives of the French Government. Sir William Crawford was sent here, the same year, by the English Government, which made the liberal allowance of £5,000 for his expenses, which enabled him to provide himself with many illustrative drawings and other valuable material for an elaborate report, which was the basis of the Eng- lish Act of 1835. He said of the Eastern Penitentiary at Philadelphia, that it was "in fact, with some trifling difference in the arrangements, but a counterpart of the Bridewell at Glasgow,^ which was in operation five years before the erection of this prison." In 1835, Dr. Julius was commissioned by the King of Prussia to make a similar investigation and report. At a later date, we were favored with a visit from Messrs. De- metz and Blouet, two other Frenchmen. From America the controversy passed over into Europe, where it has not yet ceased. The two rival systems are known all over the world as the Pennsyl- 1 Mr. J. J. Gurney, who visited the Glasgow Bridewell, Sept. 10, 1818, says of it in his "Notes" that its principle was solitary confinement — one cell for every prisoner, but that Mrs. Fry and he found two persons in every cell. "The prisoners are able to communicate with' one another out of their respective cells by day and by night. As their windows look over a small plain on the public road or street, every little noise and every fresh object on the outside divert their attention 'from their regular duties. As we approached the prison, we observed a great majority of these windows crowded with spectators." At Aberdeen, where there was also a Bridewell, which was inspected by them, August 29, 1818, the separate system appears to have been better en- forced, for Mr. Gurney says : "The several stories of this build- ing consist respectively of a long gallery, with small but com- modious and airy cells on each side. Every gallery is divided in the middle by the central stone staircase, the men prisoners being confined on one side [at one end?] of the house, the women on the other. The cells on one side of the galleries are for sleeping, those on the other for working. Every prisoner occu- pies a sleeping and a working cell, the Bridewell being intended only for solitary confinement." 162 PUNISHMENT AND REFORMATION vania and Auburn systems, though the first did not originate in Pennsylvania, nor the second in Auburn, and though neither is now followed, at least in its en- tirety, as conceived by its originators, either there or here. The general adoption of these distinctive names is nevertheless an admission, honorable to the American nation, that it was on the free soil of the United States, under the influence of democratic ideas, that the peni- tentiary system received its earliest and best expression, as a humane reaction against former tyranny and op- pression in the name of criminal justice. The Pennsyl- vania system was better thought of abroad than at home. It was adopted in Belgium in 1838 ; Oscar, of Sweden, authorized its introduction into Sweden in 1840; it found its way into Denmark in 1846, and into Norway and Holland in 1851 ; the French Republic, in 1875, approved it for the Departmental Prisons, but the cost of the change has prevented it being fully effected. Many of the very best prisons of Europe, in these and other countries, are constructed, organized and managed on the separate system. That it has great merits is indisputable. One of them is the ease with which a prison can be governed, when the whole force of the administration, augmented by the architectural resources of the prison, can be opposed to the will of each individual undergoing sen- tence. Another is the opportunity which it offers for individual discrimination between prisoners in their treatment, according to their personal needs. The ab- sence of almost all occasion for disciplinary punish- ments is another; the prisoner is certain to demand work, and there is little in the way of disorder or PENNSYLVANIA AND AUBURN SYSTEMS 163 insubordination which he can do by himself. Then, such reformatory influence as may be brought to bear upon him by the prison officers or by the authorized prison visitors is not liable to be counteracted by the public sentiment of evil associates operating in the direction of combined resistance to admonition and counsel. On his discharge, moreover, he is free from the peril of being recognized by some companion in punishment and seduced or blackmailed by him. The motive which prompted it and which sustains it is the belief that solitary reflection has a tendency to bring evil-doers to repentance for their misdeeds ; that seclu- sion protects them from the deterioration of character resulting from evil communications in prison ; and that the reformatory agencies employed for their amend- ment will have freer scope and a more certainly favor- able issue, if resistance to such agencies is not counte- nanced by the precept and example of the incorrigible. These principles seem, to the advocates of the system, so self-evident, that they are dogmatically sure that nothing half so pertinent and weighty can be said on the other side. There is, however, the objection that the prisoner, though relieved from the presence of evil companions, is not and cannot be delivered from the company of his own thoughts; that he is still free to indulge in solitary vice; that the natural effect of solitude is to enfeeble both body and mind; and that habits con- tracted during a long term of confinement unfit their subject for the return to the temptations of ordinary life. It is said that the solitude is not complete ; that the prisoner is visited by officials of various grades. 164 PUNISHMENT AND REFORMATION True, but if any one will take the trouble to divide the number of prisoners by the number of officers and employees who do in fact visit convicts in their cells, he will easily satisfy himself that the number of minutes, on the average, during which the prisoner is not alone can be but small. ^ Of course, his education in the elements of knowledge is hindered by the want of class instruction. The difficulty of imparting relig- ious instruction, and of overseeing the work of pris- oners, and of 'giving them needed physical exercise, is enhanced. Finally, the claim that communication be- tween prisoners is suppressed cannot be conceded. Vibrations in a solid wall separating adjoining cells are easily produced by tapping, and the signals so con- veyed are readily understood and answered. It is a proverb that sound will travel wherever air can go: the pipes in every prison upon the separate plan serve, if the prisoner knows how to make use of them, as speaking tubes. All devices invented to prevent com- munication in one or the other of these two ways are ineffectual or too costly for adoption.^ Prisoners seem 1 The physician of the Eastern Penitentiary of Pennsylvania, in his report for 1850, observed : "I have heard various estimates of the amount of intercourse afforded to our prisoners, but they were all very much exaggerated. My own observation and the opinion of our most intelligent officers satisfy me that the average daily conversation of each prisoner does not exceed, if indeed it equals, ten minutes." If this was the average, how much inter- course with their fellow-men did those have who enjoyed less than the average? They probably constituted* the majority. Re- member, too, that this average was administered not all at one time, but in broken doses. 2 In the solitary cells of the Russian fortress of Saint Peter and Saint Paul, the floors are covered with painted felt. The walls are also covered with felt, and at a distance of five inches from the wall is a wire netting covered with linen and with yellow paper. The object of this contrivance is to prevent com- munication between prisoners by knocking on the wall. PENNSYLVANIA AND AUBURN SYSTEMS 165 to have ways of passing word from one to another which are too subtle for detection: they know as if by instinct what the authorities in charge fancied to be an impenetrable secret. Mr. George Kennan has given an interesting account of the manner in which the Russian prisoners have developed out of the "knock" alphabet a highly ingenious cipher, the use of which even in communicating by taps upon the wall dimin- ishes the number of taps which are necessary.^ ^This is accomplished by a highly ingenious arrangement of the alphabet in five vertical columns, as shown on the following page. Instead of counting the number of each letter from the be- ginning of the alphabet (which would require, for the letter T, twenty knocks), 12 3 4 5 1 A B CD E 2 F G H I J 3 K L M N O 4 P Q R S T 5 U V W X Y 6 Z the number of the line is to be given in which the letter is found, followed by that of the column, so that, for T, four raps are followed almost immediately by five more, making nine in all — a saving of eleven, or more than half. The saving on each letter in the second line is three raps, seven for each letter in the fifth line, eleven in the fourth, fifteen in the fifth, and in the last nineteen; against which there is a loss, on each letter in the first line, of one. The total saving, therefore, is 194 out of 351 raps, which would otherwise be required in repeating the whole alphabet, or an average of SS per cent. If the square had no other value, this would be enough to recommend it. But Mr. Kennan shows how it can be converted into a cipher almost or quite inscrutable, by using a key word, and adding its value to that of the other words in a' sentence. The example which he gives is as follows, in which the keyword is "prison" : Nicholas arrested Prisonp'r isonpris 34 24 13 23 35 32 11 44 11 43 43 15 44 45 15 14 41 43 24 44 35 34 41 43 24 44 35 34 41 43 24 44 75 67 37 67 70 66 52 87 35 87 78 49 85 88 39 58 The peculiar merit which he sees in this cipher is that the 166 PUNISHMENT AND REFORMATION If the separate system has not proved as successful as was hoped, the same may be said of the Auburn sys- tem also. In most American prisons the rule of strict silence is not only not enforced, but no attempt is made to enforce it. Congregate prisons are, nevertheless, popular, largely because the employment of prisoners in shops, in connection virith machinery operated by steam, renders their labor more profitable, whether they are at work upon contract or on public account. The reformatory influence of labor is perhaps less, where its primary purpose is the profit to be derived from it ; and the presence of a prison contractor, while it relieves the warden of a responsibility always burden- some, to which he may, moreover, be unequal, and while it is recommended by its greater certainty to save to the State a part, if not the whole, of the cost of maintenance of the prison, is yet an obstacle in many ways to the establishment of a reformatory discipline. The reformatory end in view in the creation of the penitentiary system, has through the growth of a dis- position to connect our prisons with the political machinery of elections, been measurably lost sight of ; same letter may at one time be represented by one number and at another by another, while the same number may at different times represent different letters. A cryptograph of this kind cannot be deciphered by any of the ordinary methods. In de- ciphering a communication thus disguised, the numerical equiva- lents of the key word are, of course, to be subtracted from the cipher numbers, and then the letters which correspond with the figures in the remainder, are to be sought in the alphabetical square. The cipher numbers are sometimes written, sometimes called aloud, sometimes communicated by waving the hand, or alter- nately showing and concealing a light. If a prisoner has access to a window, communications can thus be carried on with per- sons at a distance — with friends outside, or with other prisoners. All of which suggests the question, does isolation isolate? PENNSYLVANIA AND AUBURN SYSTEMS 167 though it has been made more prominent, since the organization of the National Prison Association and the holding of annual Prison Congresses. The real test of the excellence of a prison system is its adaptation to develop in its subjects the power of self-control. Like the lunatic and the idiot, the crimi- nal, if he ever had normal power of self-control, has lost it by disease or disuse. It is therefore not only necessary to restore or to create it, but to demonstrate the precise degree to which it has been developed. This the Pennsylvania system does not do, since it sedu- lously guards its subject from external temptation. Neither does the Auburn system accomplish this end ; for it is not enough to know by observation how a man will act in prison under guidance and restraint, but we need also, before releasing the grasp of the law upon him, to know how he will act when the restraints of prison life are removed. A new system has there- fore been evolved out of the failure of these two, as they were evolved out of the failures which preceded them. The general influence which gave rise to the new or graded system may be traced to Australia, as will be shown in the next chapter. CHAPTER IX TRANSPORTATION AND THE PENITENTIARY SYSTEM The provision of Magna Charta which protects Eng- lishmen from compulsory exile was evaded, before the abolition of the right of sanctuary, by the offer, in certain cases, of a free pardon to criminals, on condi- tion of their abjuring the realm, and by threatening them with hanging, should they ever return. A statute passed in the thirty-fifth year of Elizabeth authorized the administration of the oath of abjuration to Roman Catholics and to Protestant dissenters; in 1596, by a similar act, rogues and vagabonds were given the same privilege of voluntarily leaving the country for their country's good. Abjuration and the right of sanctuary were abolished under James I. The Ac,t 18, Charles II., c. 3, authorized the transportation "to any of his Majesty's dominions in North America" of felons under sentence of death: they were given their choice between hanging and transportation, so that the latter was in effect a conditional pardon. In 1718, by Act 4, George I., c. 2, the penalty (or privilege) of transpor- tation was extended to all felons sentenced to a term of imprisonment not less than three years ; to return prior to the expiration of sentence was an offence punishable by death. Contracts were made with private persons to convey the transported across the sea; the contractors and their assigns were given the right to their labor 168 THE PENITENTIARY SYSTEM 169 during the term of sentence, which they sold to the criminal himself or to his colonial purchaser. Some- times he was released before he passed the mouth of the river Thames; oftener, on his arrival in Jamaica, Barbadoes, Maryland, or elsewhere on the American coast. For a time, four or five hundred were shipped to Maryland annually; others were sent to Virginia. The planters bought them. In effect, they were slaves, for a term of years; and the traffic in convicts was a form of competition with the African slave-trade. Reputable American colonists freely expressed their disgust with the system, but it suited the Mother Country, and the practice only ceased with the War of the American Revolution. When this outlet for English rogues was forcibly stopped, the number of convicts in England increased so rapidly as to con- stitute for twelve years a serious embarrassment to the Government, which had not prisons enough to hold them. The surplus convict population was therefore confined in hulks, of which more will be said by and by. Not knowing what to do, the Government made an effort to establish a penal colony at Sierra Leone. In consequence of the mortality resulting from the in- tense heat ; this experiment proved a failure and had to be abandoned. Thus the American War was the unex- pected occasion of the birth of the penitentiary system, and of modern prison reform, as the sequence of the discussion in England to which the embarrassments growing out of that war gave rise. The voyages of Captain Cook, in 1770, 1773 and 1777 (in all of which he visited Australia, formerly called New Holland), attracted the attention of the 170 PUNISHMENT AND REFORMATION English Government to that quarter of the globe. Europe was distracted by the events which preceded the French Revolution, and had its eyes turned else- where. England profited by this circumstance, and took possession of a new world. By an order in council, dated Dec. 6, 1786, Commo- dore Alfred Phillip was appointed Governor of New South Wales. Eleven vessels, two of them ships of war, were loaded with seven hundred and fifty-seven convicts (part of whom were women), a limited num- ber of troops, provisions and other necessaries, and finally set sail from Spithead for Australia, May 13, 1787. The voyage lasted eight long months ; the emigrants disembarked January 18, 1788, at Botany Bay — a ridi- culous misnomer, since the place proved to be a desert. Leaving there a ffew of the sick. Commodore Phillip pushed toward the north and landed, a week later, at Port Jackson, where the foundations were laid of the now flourishing city of Sydney. Eleven of the colon- ists, with their wives, under the guard of two soldiers, settled on Norfolk Island, a veritable Eden, afterward famous as a hell on earth. By the close of the year, the provisions on hand began to fail ; no fresh supplies were received from the Mother Country; scurvy broke out; and the settlers suffered both from famine and pestilence. Even the natives were afflicted with small-pox, a disease of which they had previously no knowledge, but which the Eng- lish attributed to contagion from a French sailor. To the other troubles of the colonists were added hostili- ties on the part of the aborigines. Within twenty THE PENITENTIARY SYSTEM 171 months of the first landing, out of eight or nine hun- dred souls, one hundred and fifteen were already dead. No relief came until the third of June, 1790, when a vessel arrived, with some provisions and a cargo of women, which was soon followed by two more; but several vessels with supplies were lost at sea. The task assigned to Commodore Phillip was no easy one. He set himself with all his might to organ- ize an element of honesty in the midst of abounding rascality and profligacy, and to teach his men to be- come self-supporting, as well as in a degree self- governing. His authority was greatly augmented by the bestowal upon him by the Crown of the right of conditional pardon. But the moment arrived, when the terms of sentence of the transported convicts began to expire; a terrible moment for him and for the colony. There was nothing for them to do, and no place to which they could go. He offered them con- cessions of land, employment, government aid, and warned them that the alternative would be a return to England at their own cost. The majority spurned his offers. He could neither imprison them, nor attach them to the soil as free men. They returned home as best they could, as seamen before the mast or as stow- aways; any way to get back to their former haunts, and there resume a life of crime. To add to his per- plexities, many unconvicted emigrants (chiefly Irish) arrived in search of an easy fortune in the new Eldo- rado, as they supposed it to be, most of whom landed in a state of destitution. A glamour of romance sur- rounded new countries, a century ago, which was enhanced by such books as Paul and Virginia, that 172 PUNISHMENT AND REFORMATION idyl of love and innocence in the tropics. Then he had tremendous difficulties to encounter, in conse- quence of the overwhelming preponderance of the male sex. With the dawn of commerce, ardent spirits were smuggled into the settlement ; enforced abstinence had aggravated the appetite for drink ; what could one ex- pect ? In short, by the end of 1792, Commodore Phillip was exhausted, and he applied to be relieved of a re- sponsibility which was beyond the powers of any living man. He was succeeded, provisionally, for a year and a half, by Major Grose, the Lieutenant Governor, under whom originated the system of hiring convicts to free colonists, also the breeding of live stock; the latter was largely due to the exertions of an officer named McArthur. The Government then sent out Captain Hunter. When he arrived, the most flourishing business in the colony was the distillation and sale of liquor, which could not be suppressed; it was therefore authorized and the privilege conferred upon favored individuals. The convicts had, too, in some unknown way, managed to arm themselves, but were held in check by an armed police composed of convicts who were well disposed. A census, taken Sept. 1, 1796, showed that there were then 361 self-supporting convicts, 3,638 who were not self-sustaining, and that nearly a thousand of the more turbulent and dangerous were on Norfolk Island. The fact that convicts will not become colonists, until all hope of a return to the land from which they came is extinguished within them, became more and more evi- dent ; and the presence of those whose terms of sentence THE PENITENTIARY SYSTEM 173 had expired, besides being a pecuniary burden, was a constant menace to social order and security. By the year 1800, the necessity for a prison was so urgent, that private and voluntary subscriptions of money were freely made, to defray the cost of its construction. Captain King, the Commandant of Norfolk Island, followed Captain Hunter. One of his first acts was to found an orphan asylum for girls, eighteen miles from Sydney, who were there to be trained for wives, married off, and provided with homesteads at the public expense. In 1804, he started a settlement, under Colonel Collins (in Van Diemen's Land, now Tas- mania, then recently discovered), and founded Hobart Town. Norfolk Island had become such a nest of brigands, that an attempt was made to break it up, by the offer of free transportation to the new penal colony, and a double concession of land ; but the majority pre- ferred to remain where they were. Captain Bligh, who succeeded King in 1806, was a tyrant; the colony rose against him and held him a prisoner in his own house, until he could be sent to England. Colonel Macquarie, the next Governor, was an able and popular ruler, who began his administration by appointing an ex-convict to a seat upon the bench. The number of convicts who had then been transported to Australia, during the twenty years which had elapsed since the landing of Commodore Phillip, was 13,000 men and 3,265 women, of whom about 5,500 had died, leaving a population of 10,000 or more. The number of children born to them was about 9,000. Macquarie founded a bank. He secured gratuitous passage from 174 PUNISHMENT AND REFORMATION England of the families of convicts, and the sending of young girls who professed penitence from female reformatories at home to be married in Australia. His reign lasted for twelve years, but it was embittered by attacks made upon him in Parliament, which led to an investigation, resulting in nothing except the division of Australian society into two hostile factions, the "emancipists" and the "exclusionists" ; the former wished to give the convicts a voice in the Government, but the latter were radically opposed to convict colo- nies. This division of feeling, which was very marked under General Brisbane, was the first symptom of the ultimate failure of the entire system. The adaptation of Australia to sheep husbandry and the growing of wool attracted English free settlers. Brisbane, by con- cessions in land, induced them to assume the charge and maintenance of convicts, and this gave rise to the troublesome and dangerous system of assignments, which closely resembled the lessee system now in vogue in some of the Southern States of the American Union. It was the cause of immense irritation in the colonies. The parties assigned to a planter were known as a "clearing gang." The money paid for their labor was paid to the Government. Since a higher price could be obtained for the better class of convicts as mechanics, only the worst of them went to the clearings and the sheep farms. Without following the history of the suc- cessive colonial administrations in detail, it is enough to say that in 1837, at a time when the English Govern- ment was in love with a novelty recently imported from America — the cellular or separate system of imprison- THE PENITENTIARY SYSTEM 175 ment, a select Parliamentary Committee, which in- cluded Lord John Russell and Sir Robert Peel, was appointed to inquire into the justice of the complaints made by the colonists. The upshot of this investigation was the adoption of a new system, that of probation. At first, the period of probation was served in Aus- tralia. The convict, on his arrival, was placed in a probation gang, and employed in felling timber or in other public work. These gangs worked in chains, lived in barracks, and moved about from place to place. From the probation gang the prisoner rose by good conduct to a state of comparative freedom, in which he worked for private individuals, but the Government appropriated the money paid for his services. In Van Diemen's Land, there were three grades or classes of convicts, between the probation gang and conditional liberation on ticket-of-leave ; and each prisoner passed through all of them in succession. The ticket-of-leave was followed by a complete pardon, but, by the Act of 1847, the term of probation was ordered to be served in England ; at its expiration, the criminal was trans- ported; on his arrival in Australia, he was given a ticket-of-leave and was at liberty to hire himself to a free settler. Thus for assignment was substituted free- dom of contract. It would be foreign to our immediate purpose, to trace the history of Australian transportation farther than is necessary to show its connection with the devel- opment of the prison system, first in England, then in Ireland, and at last in the United States. The experi- ment finally broke down, as it was inevitable from the beginning that it would. The difficulties in the way of 176 PUNISHMENT AND REFORMATION success were chiefly three: (1) the inequality of the sexes; (2) the want of work for discharged prisoners in an unsettled country, where there are no employers ; and (3) the dissensions which arose, after the advent of innocent settlers in numbers sufficient to enable them to demand that no more convicts be sent into the country. Besides, the accompaniments of this form of punishment were truly horrible. On the convict ships, the discipline was much the same as upon a slaver; men and women, separately chained in pairs, were imprisoned in the hold, where blasphemy and ob- scenity reigned, with little or no effort to put a stop to them. Ship-fever was common and fatal ; in a ship which sailed in 1799, with three hundred convicts, one hundred and one died on the voyage. On land, the difficulty of enforcing discipline was the occasion of great brutality; the main reliance for order was the lash, and in 1838, with 16,000 convicts, the number of floggings administered was 160,000, or an average of ten to each man. From 1793 to 1836, the death-rate among the transported was forty per cent, but among the free colonists only five per cent.^ Transportation to New South Wales was suspended in 1840. Mr. Gladstone suspended all transportation, during 1847 and part of 1848. Just at this crisis, gold 1 "Sir William Molesworth's committee of 1837-8, after a la- borious investigation, concluded their report by condemning the punishment of transportation, as being unequal, without terror to the criminal class, corrupting to both convicts and colonists, and extravagant in point of expense. This committee recom- mended the institution of penitentiaries, at home and abroad, in place of it. These resolutions, together with the report of the Duke of Richmond's committee in the preceding year, produced a great effect upon public opinion, and the whole subject came seriously under the consideration of the Government." — Sir Joshua Jebb, at the Social Science Congress, London, 1862. THE PENITENTIARY SYSTEM 177 was discovered, in 1850, in New South Wales and Vic- toria. The Government had agreed to send out as many free colonists as convicts. Western Australia had been erected into a new penal colony ; but the free colonists were flocking to the gold fields. With the passage of the Act of 1857, the word transportation disappeared from the statutes. The thing itself lasted, under the name of probation, until 1867, when the last shipload of convicts sailed for the antipodes, thus bringing to an end an experiment which lasted for precisely eighty years, and had at last to be abandoned.^ A word in passing as to French and Russian trans- portation will divert us but a moment from the course of the argument. France made an unsuccessful attempt to establish transportation, about a hundred years ago. By a pro- vision of the penal code of 1791, criminals convicted a second time were ordered to be transported for life. By an act of the 24th Vendemiaire, in the year II., the ' Convention extended this order to include vagrants; and by the law of the 1 1th Brumaire, in the same year, the island of Madagascar was designated as the site of the proposed penal colony. The naval war between 1 The convict life of Australia and the effect of the brutalities practised by some of those to whom the administration of the transportation system was there confided are well described in a work of fiction, "For the Term of His Natural Life," by Marcus Clarke, which occupies in Australian literature a place somewhat analogous to that of "Uncle Tom's Cabin" in our own. It has been dramatized, and the play founded upon it is a stock piece, which can be put upon the boards at Sydney in any dull theatrical season. The warden of an American penitentiary, after reading this novel, purchased a number of copies for the prison library, with the double motive, as may be supposed, of contrasting his own mild but firm discipline with a harsher system, and of explaining his motive in adopting it, which was not moral weakness, but the reverse. 178 PUNISHMENT AND REFORMATION ■ France and England prevented the execution of this design. In 1810, the project having remained in abey- ance, the Code Napoleon abrogated the former code and so put an end to the project. In 1851, it was re- vived, during the reign of terror that succeeded the coup d'etat of December 2, and by an unconstitutional ministerial decree, transportation was established. The decree named Guiana and Algiers as colonies to which prisoners might be sent; but it was modified, the year following, so as to apply only to Guiana. In May, 1854, an act legalizing transportation was passed, and this penalty was substituted for hard labor in the bagnes, which were suppressed, though that at Toulon continued to exist, until nearly twenty years later, as a depot for convicts awaiting passage across the sea. New Caledonia, an island in the South Pacific Ocean, about seven hundred miles east of Australia, was made a penal colony in 1863, at first merely as an experiment. Guiana and New Caledonia are now the only French penal settlements, though some military prisoners are still sent to Algiers. The history of the attempt to colonize Guiana is in- expressibly sad. The country lies too near the equator, to be inhabited by Europeans ; the coast is marshy, the temperature always high, and rain falls one hundred and eighty days in the year. It is devastated by yellow fever (which is said, however, not to be epidemic), by marsh fevers, by dysentery, and by a fatal anaemia. In face of the depressing climate, marriages -tend to be- come sterile. Count d'Haussonville has reported that, during the first period in the history of this colony, the average mortality was twenty-five per cent., and at THE PENITENTIARY SYSTEM 179 some places it reached thirty-two per cetit. In conse- quence of the terrible mortality, the Government, in 1867, relinquished the purpose to send European con- victs thither, and Guiana is now reserved for negro convicts sentenced by the courts of Guiana, Martinique and Guadeloupe, and for Arabs shipped from Algiers. The first shipload of two hundred and fifty convicts sailed from Toulon for New Caledonia, Jan. 2, 1864, and arrived in the roadstead of Noumea on the 9th of May, after a voyage lasting a little more than three months. Noumea is the seat of government. The prisoners are divided into four grades. They disem- bark on the island of Nou, which presents from the water the appearance of a great manufacturing estab- lishment, with its workshops, its tall chimney, and its prison barracks, built of stone, in which the men sleep, in gsoups of fifty to each barrack. The most incor- rigible are here. The moral atmosphere of this island is identical with that of the old hagne at Toulon, of un- savory memory, which has in effect been removed bodily to Oceanica. From Nou they are conveyed by the "penitentiary flotilla," — a tow of barges drawn by a wheezy steam-launch, — to Noumea, which is .a beauti- ful port, but destitute of easy means of entry, without wharves or lighthouses, much less fortifications, the streets of which are said to be open ditches. From Noumea they are sent to the camp of Montravel, and given a ten days' rest from the fatigue of the voyage. Thence they are distributed to various points to work; only, as M. Denis, formerly assistant director of the colony, dryly remarks, they need not work unless they choose, for they cannot be punished for not working. 180 PUNISHMENT AND REFORMATION The lighter punishments they do not fear; and al- though the law authorizes their confinement in a dun- geon, the architect of the prison quarters on the island of Nou kindly omitted to provide any dungeon. New- Caledonia consists of a wooded mountain range, of vol- canic origin, pushing its head above the level of the sea to a height, in some places, of eight thousand feet. The greater part of the surface is rocky; here and there are plateaus of rock covered with a few inches of soil. The celebrated farm of Bourail, the pride of the colony, produced, in 1880, with three hundred farm hands and one hundred factory hands three and a half tons of sugar, while the annual product of the farm of Koe brings forty thousand dollars less than its cost. French transportation is sustained by two powerful motives, the desire to be rid of dangerous criminals, and the wish to found colonies. ' But the difficulties encountered have proved to be the same as in Australia, with some others superadded. There is the initial difficulty of determining what class of criminals shall be transported, and at what stage of their punishment and for how long a period. Then arise legal questions as to the character of this penalty. What is it? an original sentence, a supplemental sentence, or a com- mutation sentence? If transportation is to follow im- prisonment, where shall the preliminary term of incar- ceration be served? In the colony or in the Mother Country? Another vexed question. There is also the difficulty of supervision of criminals at so great a distance from the home office, to say nothing of the increased expense of maintaining and guarding them. THE PENITENTIARY SYSTEM 181 How are they to be prevented from escaping and re- turning home, or from leading the life of outlaws in the uninhabited portions of the colony? Either the convicts must be surrounded by free population made up of honest emigrants, which will in time absorb them, and these honest citizens rebel against the prac- tice of thrusting upon them convicts as associates; or, if not so surrounded, the convict population preys upon itself and becomes a moral cesspool. In the absence of free settlers, the Government is put to great expense for the repression of crime and the relief of destitution among the transports whose term of service has ex- pired. The earliest mention of transportation in the penal laws of Russia was in 1648, when it was regarded less as a punishment than as a means of getting rid of crip- pled and mutilated criminals. Mr. George Kennan says: — "The amelioration, however, of the Russian criminal code, which began in the latter part of the seventeenth century, and the progressive development of Siberia itself gradually brought about a change in the view taken of Siberian exile. Instead of regarding it, as before, as a means of getting rid of disabled criminals, the Government began to look upon it as a means of populating and developing a new and promising part of its Asiatic territory." And again: — "In the eighteenth century, the great mineral and agricultural resources of Siberia began to attract to it the serious and earnest attention of the Russian Government. The discovery of the Daurski silver mines, and the rich mines of Nertchinsk in the territory of the Trans-Baikal, created a sudden demand for labor, which led the Government to promulgate a new series of ukazes providing for the transportation thither of convicts from the Russian prisons. In 1762, permission was given to all indi- 182 PUNISHMENT AND REFORMATION viduals and corp6rations owning serfs, to hand the latter over to the local authorities for banishment to Siberia, whenever they thought they had good reason for so doing. With the abolition of capital punishment in 1753, all criminals that, under the old law, would have been- put to death, were condemned to perpetual exile in Siberia, with hard labor." The exiles may be divided into three groups: (1) those sentenced by a court, of whom nearly all are criminals, who must remain in Siberia for life; (2) those banished by administrative process, without trial ; (3) voluntary exiles, comprising members of the fami- lies of the banished. Of those banished by order of the Minister of the Interior, two-thirds are sent away at the request of the mir or village community to which they belong, and are simply vagabonds or discharged misdemeanants. The political prisoners, of whom the number exiled annually is almost insignificant, are not separated from the rest, in the above classification. Mr. De Windt says:— "There are two kinds of criminal prisoners in Siberia, namely, those who have forfeited all civil rights, and those who, though undergoing long terms of penal servitude, have retained them. An exile of the first category is, from the date of his sentence, practically dead to the world. He can never hope to return to Europe, his property goes to his heirs, he loses everything he has, even to his wife and name; for the former is at liberty to remarry, while the latter, as a legal signature, is worthless. This class is distinguished by the head being half-shaven. The second-grade convicts lose no family or property rights, but are destined, their imprisonment over, for colonization. Of this class, many find their way back to European Russia, and the majority serve but a short term of penal servitude, though their sentence be a severe one. If well conducted, they are generally permitted to live out- side the prison with their families, earning their own livelihood, but devoting a portion of their time to Government work. Many of the women become domestic servants." THE PENITENTIARY SYSTEM 1.83 The number banished each year, which used to aver- age about eighteen thousand, has declined of late, and is now less than fifteen thousand. Many ameliorations in the lot of the exiles have also been brought about. The following account of the route by which they ar- rive at their destination is taken from De Windt: — "The Great Forwarding Prison of Moscow forms the rendez- vous whence, in summer, gangs of about seven hundred exiles each are despatched two or three times a week by rail to Nijni- Novgorod. Here they are embarked upon prison barges and towed by steamer to Perm. From Perm well-appointed and specially built railway cars convey them across the Ourals (moun- tains only in name) to Tiumen, and from Tiumen a river journey of about nine days (upon- similar barges to those aforementioned) lands them at Tomsk. At Tomsk the march ( for those sentenced to remote districts) commences. Many, however, convicted of minor offences, are landed at Tobolsk, Sourgout, or other settle- ments far nearer Europe. From Tomsk the great post road (the only one) leads to Irkutsk. Two days beyond the latter city lies Lake Baikal, across which prisoners are conveyed in large wooden hulks, towed, as on the Obi, by cargo steamers. The post road is then taken once more, and three or four weeks later, according to circumstances, the mines of Siberia (Kara and Nertchinsk) are reached. The voyage from Moscow to the latter is usually made by ordinary travellers in a little under three months; but the time varies considerably with prison convoys, who may be de- tained by sickness, floods, impassable rivers, etc. No travelling is done in winter." The road is lined with stations called etapes, built of logs or of planks, for the accommodation of prisoners en route. They have large chambers with double rows of sleeping platforms through the centre of each, and closely resemble the barracks^ in which leased pris- 1 "In Mr. George Kennan's celebrated papers upon the Russian exile system, he fully describes the 'kameras' or cell-houses in use in Siberia, and his articles are accompanied by numerous illus- trations. I will venture the assertion that, if any Floridian con- 184 PUNISHMENT AND REFORMATION oners are so often housed in the Southern States of the American Union. They are not large enough to furnish proper care of so many convicts as frequently occupy them for the night, and are at times badly over- crowded. It is easy to believe that their sanitary con- dition is not always satisfactory. The evils of the exile system are well known to the Russian officials and have been freely commented upon by them. Count SoUohub declared himself "an implac- able enemy of transportation," and said that in Siberia "recidivism exists perpetually, on a colossal scale;" it was his intention to have given to the public the official information in his possession upon this subject; but the time never came when he thought it expedient to carry out this purpose. The report of Governor-Gen- eral Anuchin to the Emperor, in 1880, on the state of vict was shown these pictures without the accompanying text, he would be prepared to swear that they were ruins of the camp in this State. It is not merely a slight resemblance, nor even a marked resemblance, but the two are absolutely identical in every essential detail. The main difference is that there is no building- chain used in the Siberian cell-houses, the prisoners being given the liberty of the room, after they are locked in. The sleeping platforms, called 'nares" in Russia, and those in use here are exactly alike; such scanty arrangements as exist for personal cleanliness are similar, and the general arrangement and con- struction of the building and the stockade are the same. The lowest order of Russian prisoners are fastened with stride and waist chains exactly like those used in Florida, and there is a coincidence of little details that is perfectly amazing to one familiar with both systems. Mr. Kennan states that, when he visited one of the kameras, he was horrified to observe that the whitewashed walls were stained a dusky red for some distance above the sleeping platforms, and was told that the stain was made by the prisoners, who crushed there the innumerable ver- min that infested their beds. Mr. Kennan need not have gone so far away from home. In summer time these insect pests are al- most impossible to exterminate, and it takes only a few weeks for the convicts at the camps to paint a dado on the walls exactly similar to that which Mr. Kennan observed." — "The American Siberia," by J. C. Powell, Captain of the Florida Convict Camp. THE PENITENTIARY SYSTEM 185 affairs in Eastern Siberia, as quoted by Mr. Kennan, proves that the Australian experience has been par- tially duplicated there. Russian convicts are sentenced to imprisonment with hard labor, or to forced coloni- zation without labor. The latter are, upon their arrival at the place of their enrolment, given their entire free- dom and expected to maintain themselves. "Only the least spoiled part of them, and those accustomed to work, establish themselves in the places to which they are as- signed, or seek employment in the gold placers. The rest aban- don their places of enrolment and wander about the country, giving themselves up to laziness, and imposing themselves as a heavy burden upon the local population, at whose expense they are fed. The influence of these exiles upon the people of the country is very pernicious, since they carry into the villages and towns the seeds of depravity. As the Siberian population grows more and more prosperous, it manifestly feels more and more the heavy burden of these criminal colonists, and submits to their presence only as to an evil that is inevitable, protesting loudly, however, in the meantime, against such an order of things." Two of the greatest difficulties experienced by the Government are the impossibility of adequate super- vision, so that at Kara very nearly ten per cent, of the prisoners at work in the mines escaped in one year, and the lack of sufficient facilities for the industrial employ- ment of convicts, so that more than half of them are idle. Since 1869, the island of Saghalin, in the gulf of Tartary, has been used as a penal colony. Prince Kra- potkine describes it as a spot unsurpassed in desolation except by Nova Zembla and New Siberia. This island is something less than seven hundred miles in length, and one hundred and fifty miles in extreme width, with coal mines and some arable land of poor quality. The 186 PUNISHMENT AND REFORMATION aboriginal population, a tribe of savage hunters and fishermen, numbers five thousand. The country is "shrouded, summer and winter, by dense fogs, the sun is seldom seen, and even in the month of June snow lies upon the hills, and the ground is frozen two feet deep." To the extent that this barren region is made a seat of penal servitude, Siberia will be freed from the presence of the undesirable class of colonists, but at what a cost to the victims of the hateful system ! Alaska has sometimes been talked about as a desir- able penal colony for the United States. But, apart from the warning contained in the experience of other nations there are reasons founded in our political sys- tem why the establishment of such a colony would be impossible. In America crime is a local affair, since every State has its own code ; the only federal offences are offences against the Federal Government, or of- fences committed upon federal territory. The Federal Government would not have enough prisoners of its own to render it worth while to transport them, while the States have no jurisdiction over Alaska, and could not send their prisoners there, even if they wished. After this digression, we return to the question of the influence of Australian experience upon the course of prison evolution in England. When the American War of Independence closed the colonial outlet for felons (of whom Mr. Eden esti- mated that England sent abroad one thousand a year), Parliament, in 1779, directed that the county Bride- wells should be enlarged, which, however, the local justices neglected to do, and proposed the erection of penitentiaries on the separate system, but with labor. THE PENITENTIARY SYSTEM 187 As a measure of purely temporary relief, two old hulks at Woolwich were converted into prisons, though they were never so called, or treated as such in any statute ; other hulks were afterward provided, at other royal dockyards. These hulks were not adapted to occupation by convicts, and they became not only death-traps, by reason of their unsanitary condition and the prevalence in them of typhus fever, but cess- pools of moral contagion. They were leased out to a contractor, at a fixed price per head for prisoners com- mitted to them, and the contractor was made overseer, so that his accountability must have been very slight, and the opportunity for abuses to grow up was pro- portionally great. The hulks were in use in England until 1857, and at Gibraltar until 1875. In consequence of the inadequate accommodation which they supplied, the erection of Millbank prison, for twelve hundred prisoners, was determined upon in 1812.^ It was begun in 1813, opened in 1816, but not completed before 1821, and cost over $2,000,000. It contained provision both for separate and for asso- ciated treatment of convicts, in two stages, beginning with the solitary cell; the second stage was abolished ^An Act authorizing the construction of a Penitentiary had been agreed to in 1779 (19 George III., c. 74) ; a site was pur- chased in Sept., 1782; but the intention of the Government to found a colony at Botany Bay led to the suspension of the project, until Mr. Bentham came forward with his scheme for a Panopticon, which was informally approved and an Act passed in 1794 (34 George III., c. 84), under which fifty-three acres in Tothill Fields were conveyed in 1799 to Mr. Bentham, and a con- tract with him drafted, which was fortunately never signed. In 1810 Sir Samuel Romilly called the attention of the House to the inaction of the Government. Two more years elapsed before the enactment of 52 George III., providing for the erection of a Penitentiary for the Counties of London and Middlesex on the land reconveyed by Mr. Bentham to the Supervisors. 188 PUNISHMENT AND REFORMATION in 1832. Millbank, after the abolition of the hulks, was the depot from which convicts sentenced to trans- portation took their departure for Australia. It ceased d GROUND PLAN OF MILLBANK PENITENTIARY a Chapel. 6 Hexagon. c Pentagons. d Entrance. e Boundary Wall. to be a convict prison in 1886, and has since been destroyed. The report of Sir William Crawford on the peniten- tiaries of the United States, made in August, 1834, led to the creation of the metropolitan prison at Penton- ville, for five hundred prisoners. This was meant to be a model prison, on the separate system, with the THE PENITENTIARY SYSTEM 189 reformation of offenders as its avowed aim. It was begun April 10, 1842, and in its construction the radi- ating plan of the Eastern Penitentiary at Philadelphia was followed. The hulks and Millbank had been used as substitutes for transportation; Pentonville was meant to be a preparation for transportation. At this time, two distinct stages of punishment were recognized, namely: eighteen months of separate con- finement at Pentonville, followed by exile to Australia. Tickets-of-leave were not granted in England, but could be granted in the colony. Eighteen months was found to be too long a term of isolation, and the time was subsequently reduced to nine months; afterward, an intermediate stage of imprisonment was introduced, which was served in a different prison, organized on the principle of separation by night and associated labor by day, on the Auburn plan ; and transportation with a ticket-of-leave was made a reward for good conduct in the prison. Penal servitude, established in 1847, as a preparation for transportation, was, in 1857, when transportation was by law formally abandoned as a punishment, made a substitute for it. Then began the erection of great public works prisons. Portland was opened in 1847, Dartmoor in 1850, and to these have now been added Chatham and Portsmouth, where convicts are employed in enlarging the docks. The original theory of Eng- lish criminal law was that, of all secondary punish- ments (by which are meant punishments not capital), transportation was the most severe; but it came to be believed that servitude in a public works prison was more severe than transportation, as is proved by the 190 PUNISHMENT AND REFORMATION fact that four years in such a prison was made the equivalent of seven years' service in Australia. So much for the English prisons. The necessity for building prisons in England would have been avoided, if the people, first of the United States and then of Australia, had not absolutely refused to allow the de- portation of convicted felons to those countries. The next point to be considered is the reaction of Australian methods of dealing with convicts upon the prison system at home. Commodore Phillip, as has been shown, was given the right of conditional pardon, as Governor of the Colony. The lack of any prison structure made it necessary to work the men in gangs ; hence arose the system of progressive classification, which was developed in Australia to a high degree of perfection. The final stage of penal servitude was that of conditional liberation on a ticket-of-leave, which was an Australian invention. The effect upon English crim- inal legislation is very apparent. The Act of 1847 cre- ated four stages of imprisonment, namely: (1) cellular confinement in complete isolation, not exceeding nine months; (2) probation, in England, in a public works prison; (3) transportation to Australia, with a ticket- of-leave or the promise of one upon arrival ; (4) abso- lute liberation, at a period to be determined by the amount earned by the convict while on ticket-of-leave. Thus transportation, which had at first been considered the most dreadful of punishments except that of death, came to be regarded as a reward for good conduct while in prison. The period of probation in public works prisons was given the title of penal servitude, which is equivalent to the French travaux forces or the THE PENITENTIARY SYSTEM 191 American "imprisonment at hard labor." At Portland, prisoners were divided into several classes, distin- guished by different dress, and promotion from one to another was earned by good conduct. The labor, which was in the open air, was in common. Here we have many of the characteristic features of the graded prisons of our own day, barring that of marks, which was also an Australian invention, the history of which must now be recounted. Norfolk Island, four miles long by three miles in ■width, was the principal penal settlement, to which the worst convicts were sent. Of about fifteen hundred on the island, probably two-thirds had been "doubly con- victed," that is, convicted in Australia of some crim- inal offence there committed, while under sentence of transportation. In point of natural beauty, the island was a Paradise, but the conduct of the men banished to it was indescribably bad ; they were given up to murder and all unnatural crimes. Upon one occasion, a wit- ness in a murder trial professed to have seen so many murders on the island, that he could not remember the one in question ; he said that he had seen men "cut up like hogs by a butcher." The punishments were so severe, that men would sometimes commit murder, for the sake of being transferred to Sydney, for trial, in the hope that the chance might present itself of escape on the voyage, or that the witnesses might so escape. It was not uncommon for small parties to escape to the woods; and once a number of prisoners, who had so effectually hidden themselves as to be undiscoverable, on being reduced to starvation, ate six of their com- rades, rather than return and give themselves up. 192 PUNISHMENT AND REFORMATION Mutinies were frequent. It was testified before the Parliamentary Committee that, after one of these mutinies, seven men sentenced to death, on account of their part in it, dropped upon their knees and thanked God that they were at last to be delivered from the sufferings of life on Norfolk Island. Hither, in 1840, came, as superintendent. Captain Alexander Maconochie, of the Royal Navy. In Van Diemen's Land, according to his own sworn statement, he "had witnessed the dreadful state of depravity in which the men in the public gangs were sunk," and the idea occurred to him, that "it arose from the state of slavery to which they were reduced," which led him to "think of the expedient of marks as a form of wages, by which the state of slavery might be obviated, and still the act of punishment not lost." This plan of managing prisoners had been brought by him to the notice of the Transportation Committee of the House of Commons, in 1837. The first voice raised against time sentences was that of Archbishop Whately, of Dublin, in 1832, who sug- gested that the convict, instead of being imprisoned for a certain length of time, should be sentenced to perform a certain amount of work ; he would substitute, for time sentences, labor sentences, in the belief that the change would be an improvement.^ Whether the writings of 1 "The plan which, as far as I am competent to judge, seems to me, on the whole, to promise the most favorably, is that which is suggested in the London Review, but which has not, that I know of, been hitherto anywhere tried; viz., that of requiring, of such criminals as are sentenced to hard labor, a certain amount of work; compelling them indeed to a certain moderate quantity of daily labor, but permitting them to exceed this as much as they please; and thus to shorten the term of their imprisonment, by accomplishing the total amount of their task in a less time than THE PENITENTIARY SYSTEM 193 Whately had fallen under Maconochie's eye is not known; but his suggestion was in the same direction. Maconochie proposed to the Committee "that the du- ration of sentences be measured by labor and good con- duct, with a minimum of time but no maximum ; that the labor thus required, being represented by marks, a certain number of these, proportioned to the original offence, be required to be earned in a penal condition, before discharge ; and that, according to the amount of work rendered, a proportion of them should be credited day by day to the convict, and a moderate charge be made, enough for all provisions and other supplies issued to him ; should he misconduct himself, a moder- ate fine be then imposed on him — only the clear surplus, after all similar deductions, to count toward his liber- ation." By this means he "sought to place the pris- oner's fate in his own hands, to give him a form of wages, to impose on him a form of pecuniary fines for his prison offences, to make him feel the burden and obligation of his own maintenance, and to train him, that to which they had been sentenced. I would also allow them, for a certain portion of the work done, a payment in money; not to be expended during their continuance in prison, but to be paid over to them at their discharge; so that they should never be turned loose into the world entirely destitute. Instead of being sentenced to confinement for a fixed time, they should be sentenced to earn, at a certain specified employment, such a sum of money as may be judged sufficient to preserve them, on their release, from the pressure of immediate distress ; and orderly, decent, submissive behavior during the time of their being thus employed should be enforced, under the penalty (besides others, if found necessary) of a proportionate deduction from their wages, and consequent prolongation of their confinement." — Letter to Earl Grey, 1832. The article in the London Review, to which Archbishop Whately refers, was written by himself, and appeared in 1829. It is quoted in "Suggestions for the Repression of Crime," by Matthew Davenport Hill, p. 474. 194 PUNISHMENT AND REFORMATION while yet in bondage, to those habits of prudent accu- mulation which after discharge would best preserve him from again falling." On assuming the charge of Norfolk Island, he introduced, apparently on his own responsibility, and as an aid to good government, the mark system which he had devised, and which had re- ceived from the Parliamentary Committee a qualified approval. It was absolutely new and untried. The story of his achievement, with its aid and by his personal power and tact, in reducing a turbulent popu- lation to comparative order, in four years, is interesting and instructive, but is omitted, in order that the atten- tion of the reader may be concentrated upon the mark system and Maconochie's relation to it. Every convict was debited by him with a certain number of marks, according to' the character of his offence, which he must redeem, before being recommended for conditional lib- eration. Instead of is'suing the prescribed quantity and kind of government rations, he credited each man with a certain number of marks per day, for his subsistence, to which he assigned an arbitrary pecuniary value, and the prisoner was at liberty to exchange them at their nominal face value for food and other supplies, at the Government Depot. Marks were earned by good con- duct and by labor ; intellectual marks were also given to those engaged in the prosecution of their studies ; and the surplus above the amount charged for maintenance went toward the purchase of more speedy liberation. The effect upon discipline was so extraordinary, that Maconochie himself said, "I found Norfolk Island a hell, but left it an orderly and well-regulated com- munity." THE PENITENTIARY SYSTEM 195 He was afterward for a time Governor of the Bir- mingham Jail, in England, where he put the same sys- tem in operation; but, inasmuch as the law did not recognize task sentences, the difficulties in his way were insuperable, and he appears to have been officially looked upon as, a failure — apparently with little jus- tice. He seems to be one of England's unappreciated and partially forgotten worthies. The mark system, however, went into the English code, after Sir Walter Crofton had first experimented with it in Ireland. Crofton borrowed it from Ma- conochie. In the mark system now in use in England, the high- est number of marks that can be earned is eight per day. The first year is regarded as a period of proba- tion, and is spent in a solitary cell. The minimum num- ber of marks which will entitle the prisoner to pass into the next stage, which is called the third or lowest grade, is seven hundred and twenty. Eight marks per day, or two thousand nine hundred and twenty in the year, earned in the third grade, entitle him to promotion to the second or intermediate grade ; and the same number there earned advance him to the first grade, in which there is a higher sub-class called "special." Should he fail to earn the full tale of marks demanded for promo- tion within the year, he remains in the lower grade until they have in fact been acquired. During the year of probation, the convict earns no money ; in the lowest grade, he earns one shilling per month ; in the interme- diate grade, a shilling and sixpence; in the highest grade, half a crown. In the lowest grade, prisoners are allowed to receive visits from their friends but twice 196 PUNISHMENT AND REFORMATION during the year; other distinctions in privileges are made as to diet, exercise, and correspondence. The convicts in each grade wear a different uniform dress. There is a "star class," selected entirely from first of- fenders, in which a red star is worn on the breast. The provisions as to grades in the local jails are similar, but the number of marks required for promotion is there only two hundred and twenty-four. During the first stage, the prisoner sleeps on a plank, without a mat- tress ; in the next, he has a mattress five nights in the week ; then six ; and in the highest grade, every night. The Irish or Crofton system was somewhat different. The English graded system recognized three stages, solitary imprisonment, labor in association, and trans- portation ; when transportation was abolished, the third stage was altered to release, in England, on a ticket-of- leave. Sir Waher Crofton, the Director of Irish Con- vict Prisons, who was made a baronet for his services as such, and who certainly exhibited great talent as an organizer and governor of prisons, introduced a fourth stage. The period of cellular incarceration was served at Mountjoy, where there was a prison in two depart- ments, one for men and one for women. The second stage was that of "progressive classification," a phrase of which he was the author. His male prisoner? were transferred from Mountjoy to Spike Island, where they were divided into five classes ; the probation class, third, second, and first classes, and the advanced class. The probation class could be skipped by prisoners who had made a good record at Mountjoy. The majority of those transferred were placed in the third class, where they had to earn nine marks per month for six THE PENITENTIARY SYSTEM 197 months, or fifty-four marks in all, as the condition of promotion. The number of marks to be earned in the second class was the same ; and in the first class, twice as many, so that they could not pass from the first to the advanced class in less than one year. Under the English system, they would then have been entitled to a ticket-of-leave, but Sir Walter would not grant it until after a test had been applied, in a condition of comparative freedom, at a third prison, called an inter- mediate prison, at Lusk, where they slept in movable iron huts and were occupied almost precisely as free- men would have been, in farming and manufacturing. The prison at Lusk had neither bars, bolts, nor walls. Its aim was to make practical proof of the prisoner's reformation, his power of self-control, his ability to resist temptation, and to train him for a considerable period — never less than six months — under natural conditions, and so to prepare him for full freedom by the enjoyment of partial freedom as a preliminary step. The success of Lusk was largely due to the extraordi- nary capacity of the teacher there employed, Mr. Organ, whose name is famous in prison annals. The female prisoners served the second stage of progressive classification at Mountjoy; but were transferred, for the third or intermediate stage, to Golden Bridge, three miles from Dublin, which was a Refuge, presided over by a Sister of Charity. Since Sir Walter Crofton ceased to be the Director of Irish Convict Prisons, the English Government has abolished the intermediate stage. The only place where the Irish system can now be found in its entirety is at Lepoglava, in Hungary, 198 PUNISHMENT AND REFORMATION where it has been organized under Mr. Taufifer, who there conducts one of the great and successful prisons of the world. The convicts are divided into three grades. Those in the first grade are subjected to a strictly cellular regime. In the second grade, they work in association. On reaching the third (or intermedi- ate) grade, they occupy cottages, at a considerable distance from the main prison, resembling those in- habited by the Croatian peasants. These cottages have neither bars nor bolts, and there are no guards other than the overseers of the work of the prisoners. The fourth and final stage is one of conditional liberation. The mark system has of course been imitated in the English Colonies. It is also found in the prisons of Denmark, Hungary, and Croatia. CHAPTER X THE ELMIRA SYSTEM The state of American prisons, twenty-five years ago, was far from satisfactory. The discipline in most of them was either severe to the verge of cruelty, or lax to the point of weakness, according to the ideas and sentiments of the wardens in charge. The wardens were appointed almost wholly for political reasons, and were subject to change with every alteration in the political complexion of the State governments. Com- paratively few of them were really competent for their position, and they did not, as a rule, remain in office long enough to become thoroughly acquainted with their duties and qualified to perform them. The ma- jority of them openly professed a disbelief in the possi- bility of convict reformation. The prisons were great manufacturing establishments, operated by prison con- tractors for personal profit. The State took little inter- est in the fate of the sentenced, except to insist that they must be made to pay, as nearly as possible, for their own support by their labor. The best warden, in the popular estimation, was the man who could show the best balance-sheet at the end of the year ; and the financial test was the principal test of the excellence of prison management. The change which has taken place is largely due to the exertions and influence of the Rev. Dr. E. C. Wines, the able and devoted secretary of the New 199 200 PUNISHMENT AND REFORMATION York Prison Association, by whom the National Prison Association was organized, at a Congress held in Cin- cinnati, in 1870, from which the era of recent prison reform in America may be fairly dated. Associated with Dr. Wines was a noble group of men and women, among whom it might be regarded as invidious to name individuals, with one or two exceptions, notably Dr. Theodore Dwight of New York, Mr. F. B. Sanborn of Boston, and Mr. Z. R. Brockway, then of Detroit but later of Elmira. The gentlemen named were all partisans of the Irish system, which they wished to see transplanted, and which they believed it possible to modify so as to adapt it to our political conditions. The creation of the New York State Reformatory at Elmira, in 1869, afforded them the opportunity which they coveted, and it was there that the new prison sys- tem about to be described (apparently the coming sys- tem of modern civilization) was virtually created. Dr. Wines had been much impressed by the published accounts of the results of the reformatory experiments made by Montesinos in Spain, and Obermaier in Bavaria. Colonel Montesinos was appointed, in 1835, Gov- ernor of the prison at Valencia, which was an old Augustinian convent containing from a thousand to fifteen hundred convicts. He organized it on the mili- tary system, dividing the population into companies, and appointing prisoners to be inferior company offi- cers. He encouraged convicts to learn trades, of which he had at one time fully forty in operation at once; they did all the prison work besides. The workshops cost the government nothing, and one-half the earn- THE ELMIRA SYSTEM 201 ings were appropriated to the support of the prison. There was in this prison a school, which boys under twenty were obliged to attend for one hour daily; and any prisoner above that age, who desired to do so, might join the classes. With no guards, except a dozen old soldiers, there were nevertheless few escapes. The great hold which Montesinos had upon his men, apart from his personal character and ability, consisted in the fact that they could, by good behavior, reduce the term of their sentence by one-third. The number of recommitments, while he was Governor, fell from thirty-five per cent, to a figure which it would be im- prudent to name, lest it should not be believed. The law was subsequently changed, so as to require all pris- oners to serve their full time, and in an instant the sys- tem collapsed. Montesinos resigned; he was subse- quently made Inspector-General of all the prisons in Spain, but he was powerless to reform them. In a pamphlet which he published in 1846, he said: — "What neither severity of punishments nor constancy in in- flicting them can secure, the slightest personal interest will obtain. In different ways, therefore, during my command, I have applied this powerful stimulant; and the excellent results it has always yielded, and the powerful germs of reform which are constantly developed under its influence, have at length fully convinced me that the most inefficacious methods in the prison — ^the most per- nicious and fatal to every chance of reform — are punishments carried the length of harshness. The maxim should be constant and of universal application in such places, not to degrade further those who come to them already degraded by their crimes. Self- respect is one of the most powerful sentiments of the human mind, since it is the most personal; and he who will not conde- scend, in some degree, according to circumstances, to flattery of it, will never attain his object by any amount of chastisement; the effect of ill-treatment being to irritate rather than to correct, and thus turn from reform instead of attracting to it. The 202 PUNISHMENT AND REFORMATION moral object of penal establishments should be not so much to inflict punishment as to correct, to receive men idle and ill- intentioned and return them to society, if possible, honest and industrious citizens." Oberraaier was made Governor of the prison at Kai- serslautern, in Bavaria, in 1830 ; in 1842, he was trans- ferred to Munich, where he found between six and seven hundred prisoners chained together, dragging heavy weights, in a state of riotous insubordination, and kept in order by about one hundred soldiers, who were distributed not only on the walls, but in the pas- sages, in the shops, and in the dormitories. In a very short time this wonderful man had gained the confi- dence of his men, taken off their chains, discharged nearly all the guards, and appointed a convict superin- tendent of each of the shops. His success in reforming prisoners was so great, that only about seven per cent, of those at Kaiserslautern, and ten per cent, of those at Munich, relapsed into crime after their discharge. He was aided by two favoring circumstances, of which the first was that many of the men were sentenced, at that early date in Bavaria, to simple imprisonment for no fixed term ; and the second, that there was a thorough supervision of discharged convicts, supplemented by the labors of numerous active prisoners' aid societies. The aim of Sir Walter Crofton in creating the Irish prison system was the reformation of prisoners; he thus placed himself historically by the side of Mon- tesinos and Obermaier. England, in adopting it, laid too little stress upon its reformatory influence: the main idea of the English penal system is that of repres- sion by exemplary punishments. The Irish system was THE ELMIRA SYSTEM 203 much admired by students of penology in various parts of the world, and nowhere more than in the United States. Messrs. Wines and Dwight, in a historically important report made by them to the Legislature of New York, Jan. 8, 1867, on the Prisons and Reforma- tories of the United States and Canada, said: — • "We have no hesitation in expressing the opinion that what is known and has become famous as the Irish system of convict prisons is, upon the whole, the best model of which we have any knowledge; and it has stood the test of experience in yielding the most abundant as well as the best fruits. We believe that in its broad, general principles — not certainly in all its details — it may be applied, with entire effect, in our own country and in our own State. What, then, is the Irish system? In one word, it may be defined as an adult reformatory, where the object is to teach and train the prisoner in such a manner that, on his discharge, he may be able to resist temptation and inclined to lead an upright, worthy life. Reformation, in other words, is made the actual as well as the declared object. This is done by placing the prisoner's fate, as far as possible, in his own hands, by enabling him, through industry and good conduct, to raise himself, step by step, to a position of less restraint; while idleness and bad conduct, on the other hand, keep him in a state of coercion and restraint." It was tmder the inspiration of this thought, that the New York Prison Association urged the creation, in that State, of an intermediate prison on the reforma- tory plan. Mr. Brockway furnished a paper^ for the Twenty- 1 Mr. Brockway's utterances, in this paper, of a desire for the abolition of term sentences, it will be observed, is subsequent to the Report of Messrs. Wines and Dwight, in which they had already said: "This w^iole question of prison sentences is, in our judgment, one which requires careful revision. Not a few of the best minds in Europe and America have, by their investigations and reflections, reached the conclusion that time sentences are wrong in principle; that they should be abandoned, and that reformation sentences should be substituted in .their place." 204 PUNISHMENT AND REFORMATION fourth Annual Report of that Association (1868), in which he said: "Legislation is needed, to abolish the peremptory character of the sentences imposed upon persons committed to these establishments." And again, "Persons whose moral depravity makes them a public offence should be committed to properly organ- ized institutions until they are cured." The Legisla- ture of New York, in 1868, provided for the appoint- ment of a Commission to select a site for a new State Prison. At the suggestion of the New York Prison Association, the bill was so amended as to designate the new institution a Reformatory. The Commission reported in 1869: — "We propose to make the sentences (to the Reformatory) substantially reformation sentences. It has been a favorite theory of that distinguished criminal judge and philanthropist, Mr. Recorder Hill, that criminals should be sentenced until they are reformed, which may, of course, turn out to be for life. While we do not propose to recommend this rule in full, we think that it may be safely tried in a modified form. We propose that, when the sentence of a criminal is regularly less than five years, the sentence to the Reformatory shall be until reformation, not exceeding five years." The act establishing the Elmira Reformatory was passed in 1869, one year before the assembling of the Cincinnati Congress, at the call of Dr. Wines, where Mr. Brockway read a paper (somewhat famous in the annals of American prison history) on the proper or- ganization of a prison system for a State, in which he presented in germ nearly all the theories as to the nature and needs of the criminal, which he has since wrought into the spirit and life of that institution. In particular he planted himself upon the proposition that "sentences should not be determinate, but indetermi- THE ELMIRA SYSTEM 205 nate." Dr. Byers, of Ohio, at the same Congress, spoke in favor of the estabUshment of intermediate prisons; and Mr. Sanborn discussed the possibihty of introducing the Irish system in America.^ The Elmira ^ The Cincinnati Congress adopted a Declaration of Principles, in thirty-seven paragraphs. In the first, punishment is defined to be "suffering inflicted on the criminal for the wrong done by him, with a special view to secure his reformation;" and in the second, it is said that "the supreme aim of prison discipline is the ■reformation of criminals, not the infliction of vindictive sufifer- ing." Other paragraphs are as follows : "III. The progressive classification of prisoners, based on character and worked on some well-adjusted mark system should be established in all prisons above the common jail. "IV. Since hope is a more potent agent than fear, it should ' be made an ever-present force' in the minds of prisoners, by a well-devised and skilfully applied system of rewards for good conduct, industry, and attentionjoje^rimg. Rewards, more than punishments, are essential to ev?ry~good~prison system. "V. The prisoner's destiny should be placed, measurably, in his own hands ; he must be put into circumstances where he will be able, through his own exertions, to continually better his own condition, A regulated self-interest must be brought into play, and made constantly operative. "VIII. Peremptory sentences ought to be replaced by those of indeterminate length. Sentences limited only by satisfactory proof of reformation should be substituted for those measured by mere lapse of time." In other paragraphs of this remarkable paper, the doctrine is laid down that "In order to accomplish the reformation of crimi- nals, there must be not only a sincere desire and intention to that end, but a serious conviction, in the minds of the prison officers,'*' that they are capable of being reformed;" that "a system of prison discipline, to be truly reformatory, must gain the will of the convict;" that "the prisoner's self-respect_ should be cultivated to the utmost, and every effort made to give back to him his manhood;" that "in prison administration moral forces should bel^ relied upon, with as little admixture of physical force as possi- ble ;" that "the most valuable parts of the Irish prison system are believed to be as applicable to the United States as to Ireland;", that "reformation is a work of time, and a benevolent regard to the good of the criminal himself, as well as to the protection of society, requires that his sentence be long enough for reformatory processes to take effect." It was at this Congress that President Rutherford B. Hayes, then Governor of Ohio, enlisted for life in the cause of prison reform. Here, too, the steps were taken which resulted in the organization of the National Prison Association and the Inter- national Penitentiary Congress. 206 PUNISHMENT AND REFORMATION Prison was built under an act passed in 1870, and sub- sequent acts, but was not ready for the reception of prisoners before 1876, when a board of managers was appointed, who elected Mr. Brockway superintendent. The first inmates were transferred to it, from the State Prison at Auburn, in July of that year.^ There is in the organization of this Reformatory, and in the laws by which it is governed, nothing that 1 In a work purporting to aim at historical accuracy,^ and in which an effort is made to show the genesis of the Elmira idea and how many individuals unconsciously cooperated to a common end, due credit should also be given to the Warden of Sing Sing Prison, Mr. Gaylord B. Hubbell, who, in 1865, at his owncost, made a thorough study abroad of the English and Irish prisons. An extended account of his observations and conclusions is printed in the Twenty-second Annual Report of the New York Prison Association, in which he said : "Can the Irish system be adopted to advantage in our own country? For my own part, I have no hesitation in returning an affirmative answer, with em- phasis, to this question." He proceeded to sketch his conception of the best method of procedure in the attempt to introduce it, and proposed the purchase of a farm of two or three hundred acres on the Une of the Erie railroad, and the erection upon the site selected of a new prison, to be organized in three divisions — each of which should have a special discipline. His first division he would have in solitary or separate confinement; the second division should work in association through the day, but be sepa- rated by night — in that the mark system should be in force; in the third division, with associated dormitories and no wall, all the arrangements should be such as to give the largest possible freedom to the inmates. He said : "A careful system of classifi- cation of prisoners should be made, based on marks, honestly given according to their character, conduct, industry, and obedi- ence. _ For it must be remembered, that a classified system of association without marks, and without impressing on the pris- oner's mind the necessity for progressive improvement^ is of little value." Again : "All prisoners sent to the proposed establishment should, under proper restrictions, be allowed to work their way ' out." Once more : "The Maconochie mark system, the gratuities, the school teaching, the library, the course of lectures, competitive examinations, debates, etc., etc., could all be introduced here as well, at least, and in my opinion much better than in Ireland." (The italics are not in the original, but are introduced to show how far Mr. Hubbell anticipated the methods followed at Elmira.) Mr. Hubbell had been influenced by the brothers Hill, who THE ELMIRA SYSTEM 207 is absolutely new. The novelty consists rather in the combination of principles whose validity had been sepa- rately recognized, and in the intense earnestness with which they have been here applied by a man whose enthusiasm for the reformation of convicts has in it a quality closely allied to genius. Somewhat uncon- sciously, perhaps, the methods adopted closely resem- bled those which had been long in use in institutions for also exerted an influence pn the mind of Dr. Wines. They had been influenced by Captain Maconochie, who was Governor of the Birmingham Jail while Matthew Davenport Hill was Re- corder of Birmingham. The connection is clear. Mr. Hubbell was in charge of the leading prison of the State of New York. Dr. Dwight was vice-president and Dr. Wines secretary, of the New York Prison Association. Mr. Brockway was not a resident of that State, but Superintendent of the House of Correction in Detroit, Michigan. This was ten years before he was called to take charge of the completed prison at Elmira. In the light of facts like these, the opening sentence of Alexander Winter's book, "The New York State Reformatory at Elmira," is not warranted : "In the year 1876 Mr. Brockway, who, up to that date, had been for many years accumulating a wide and comprehensive experi- ence in the administration of prisons, laid before the State Com- mission appointed for their management and inspection a plan of organization worked out entirely by himself, for the improve- ment and reform of criminals." The statement, a few lines be- low, "Thus arose the Elmira institution," is not true. Mr. Havelock Ellis does not fall into this error, in his intro- duction to Mr. Winter's book, but speaks of "the founders of Elmira," in the plural. He is mistaken, however, in saying, as he does, that they "had no knowledge of the scientific movement that was arising in Europe." (See the critique upon Prosper l3espine's "Psychologie Naturelle" and "De la folic au point de vue philosophique ou plus specialement psychologique," by Dr. Wines in the Princeton Review, May, 1878, reprinted in "The State of Prisons," pp. 641-660.) It is true that the founders of Elmira were not criminal anthropologists in the technical and narrow sense of that phrase; and Elmira was not, as Mr. Ellis claims, "the practical outcome of their studies." All that is fundamental in the Elmira system is wholly independent of the acceptance or rejection of their speculations as to nervous and mental action, heredity, evolution, or the existence and proof of a distinct anthropological type. The attempt to identify the two is an injury and not a benefit to the cause of prison reform, because it awakens prejudice against it in the minds of many who would otherwise be its friends. It is, moreover, wholly needless. 208 PUNISHMENT AND REFORMATION the reformation of juvenile offenders. Indeed, It could not well be otherwise, since men are but children of a larger growth, and the methods which succeed at a youthful age ought, with the necessary modification, to succeed, though probably not to the same degree with older men. The Australian Inventions of marks, grades, and the ticket-of-leave, had been accepted by the English Government, which also borrowed from the United States her Pennsylvania system of cellular Imprisonment by day and night for the first stage of penal servitude, and her Auburn system of separation by night only and employment in workshops by day, for the Intermediate stage. In Ireland, Sir Walter Crofton went a step further, and applied a practical test of the fitness of his men for conditional liberation, before granting them a ticket-of-leave. This consisted in employment in a condition approximating complete freedom. All of these ideas were imported from Aus- tralia and Great Britain Into the Elmira system. They constituted, in fact, its base; but there was added to them another, which gave to the whole a wonderful vitality, and which is really the distinguishing feature of the system, namely, the so-called indeterminate sentence. At this point, it is necessary to Interject into the argument some observations concerning reformation and the means by which it can be effected. What constitutes reformation ? Not necessarily re- ligious conversion. Reformation may stop far short of that, and yet be such a change of habits and charac- ter as to satisfy all reasonable legal or sociological ex- pectation. On this point, the Reverend Mr. Burt, THE ELMIRA SYSTEM 209 Chaplain of the Pentonville prison, has pertinently re- marked: — "The result aimed at by a penal code is attained when, by whatever motive, the criminal is induced to restrain his vicious propensities within the limits which the law prescribes. Three influences, more or less distinct, may operate in producing this result. It may be one effect of rehgious conversion ; it may arise from a general amelioration of the moral character; or it may be the result of prudential consideration, of intimidation, or of forethought. It is not often, I apprehend, that actual reforma- tion can be exclusively referred to any one of these causes. The several influences usually cooperate, and one passes insensibly into another, though in diflferent cases different motives predomi- nate. In any case, however, the result is reformation," He adds: — "In the reformed criminal it would be unreasonable to expect impeccable piety or stoical fortitude; enough will have been effected to merit the title of reformation, when the once habitual offender exhibits an average standard of virtue, under an average pressure of temptation." For the purposes of the government, a criminal is reformed who does not require to be rearrested, re- tried, and again incarcerated for some new violation of the criminal law. The agencies by which this result is attained are ^ three, namely, labor, education, and religion ; and they correspond to the analysis of human nature as physical, intellectual, and moral. But the unity of human nature is such, that any influence which affects an individual in any part of his being affects directly or indirectly the whole man. And the relation between religion, labor, and education is so intimate, that they almost seem at times to be different names for the same thing. Labor 210 PUNISHMENT AND REFORMATION and religion are both educational agencies ; neither in- tellectual nor ethical development is possible without labor, and religion demands of every man, that by training and effort he shall make the most of himself, and do the most for the world, that the extent of his talents will permit. Of these three, it is probable that the most certain to secure from every prisoner some measure of re- sponse is labor. Labor, if real and productive, is not only a means of bodily health and strength, but it com- pels thought, thus awakening and moulding the mind, and in many ways it reacts favorably upon the moral character of the workman. The abolition of prison labor, which, in their ignorance and greed, largely at the instigation of their employers, so many members of the trades unions demand (on the double ground that convict and free labor are antagonistic, and that competition with the former is a degradation to the un- convicted), would throw our prisons back to the state in which they were, three or four centuries ago. The laboring class (if it is proper to speak of working-men as a class) would gain nothing by the change, since they would then have to support prisoners in idleness, at the cost of the public treasury. Prisoners, if unconvicted, would be compelled to enter the labor market; how does conviction for crime deprive them of the natural right to live by their own exertions? And what excuse has the government to offer for preventing them from earning their own support, and for levying contribu- tions upon the innocent, to keep the guilty from starv- ing? It has been repeatedly shown, by. actual compu- tation, that the competition of convict labor in the mar- THE ELMIRA SYSTEM 211 ket is so small, in comparison, as to exert no appreciable ^ effect upon the demand for labor or upon wages. It may affect certain trades ; and the policy of the authori- ties should be to select industries in which such com- petition is least, and to diversify to the largest practica- ble extent the industries pursued in prisons. But some degree of rivalry of interest is inevitable, whatever we may do ; for anything that prisoners do might be done by outside labor, — even roadmaking or the manufac- ture of supplies for public institutions, both of which are just now rather popular fads. It is a strong phrase, but the consequences to the public of the forcible stop- page of labor in prisons must sooner or later be of such a serious nature, that it is not too much to say that the man who favors so violent a measure is an unconscious enemy of mankind. The reformatory influence of labor, even in prisons which are managed for profit, and where the profits inure largely to contractors and not to the State, is so potent, that of men committed to an ordinary American penitentiary it is safe to estimate that one-half do not, after their discharge, relapse into crime. Labor needs, however, to be supplemented by edu- " cation in the common acceptation of that word, mean- ing development by educational processes skilfully ap- plied to the training both of the head and the hand. Statistics prove that the number of prisoners without any trade education is greater than of those without a common school education. Some prisoners are highly educated men, but their number is relatively small. Owing to the division of labor in manufactories, a trade education is not necessarily obtained in the shops. 212 PUNISHMENT AND REFORMATION hence the establishment of trade-schools in prison is desirable, on account of the opportunity which it af- fords of giving to prisoners such a knowledge of the use of tools as will quality them for useful and profit- able employment upon their discharge. The utility of literary and scientific teaching in prison, by lectures, books, and classes, consists not merely in the improve- ment of the mind, but in its occupation and diversion, that it may not be given over to introspection, vain regrets, impure imaginations, bitterness, and the plan- ning of fresh criminal enterprises. It should not, therefore, be confined to elementary instruction in reading, writing, and arithmetic, but mental food should be provided for all tastes and capacities repre- sented in the prison population at any given time. The old story is here in point of the Quaker visitor who said to an embittered convict, "Friend, thee should have better thoughts," to which the prisoner replied, "Where shall I get them?" The positive value of education to the prisoner must not, however, be overlooked, es- pecially on subjects concerning which (largely from the want of proper instruction) he is apt to cherish per- verted notions. Four topics should be given a promi- nent place in the prison curriculum, namely: the principles (1) of law, generally, as a rule of conduct, and specifically, in its relation to crime; (2) of civil government, its necessity and utility; (3) of political economy, especially iri its bearing upon the labor ques- tion and the means by which property is legitimately accumulated; (4) of practical ethics, or the mutual rights and obligations of men living in the social state. In this connection, the following remarks by Mr. ' THE ELMIRA SYSTEM 213 Michael Davitt are worthy of reproduction here. He expresses the opinion founded on his personal observa- tion as a political prisoner, that "direct Scripture or moral teaching, either through religious works or the labor of prison chaplains, is all but useless with crim- inals." On the other hand, he believes that "no more efficacious reforming medium — apart, of course, from industrial occupation and habits — could be employed for the reclamation of all that is reclaimable in criminal lives, than a judiciously stocked prison library, in which the moral-teaching and wrong-punishing description of novel should be largely represented." He adds that "it is only what prisoners read, between labor hours in prison, that can come between themselves and their thoughts of crime past and reveries of criminal deeds to come." No less important, certainly, is it to reach the heart and touch the conscience of all who are susceptible to religious influence. The great Italian poet has shown by appropriate and impressive imagery the truth that there are three spiritual states in one of which must be found every human soul. The first is that in which the soul is in love with evil, does not perceive it to be evil, and attributes the pain which it endures to every cause but the right one — the return of an evil deed upon the doer of it. This is hell. The second is that in which the soul has recognized its sin, seeks to escape, and welcomes the pain of repentance as a purifying, purgatorial fire. Finally, having struggled with itself and gained the victory, having overcome the power of self-love, which creates discord between sister souls and between the soul and God, it accepts the divine 214 PUNISHMENT AND REFORMATION order, the human and the divine wills come into sweet accord, and at last it reaches the state of paradisaic rest and everlasting joy. There are multitudes of convicts who, in Dante's sense, are still in hell ; how are they to be delivered? Born without "moral sense, or having impaired, if not destroyed, the faculty of conscience, by its neglect or abuse, they are spiritually blind to the true nature of their own actions and relations. It seems a hopeless task, to renew in them the faculty of moral insight. Yet it must be undertaken, and for its accomplishment our hope is in God, the creator and the re-creator of the spirit that is in man. Physical and intellectual culture may contribute to the end in view ; but without the appeal to conscience, in the name of God, v^ithout picturing to the tempted the parting of the ways which lead to death or to life, without holding before their minds judgment and mercy, destruction and forgiveness, and urging them to decision, in the light of eternity and of their personal accountability to the Judge of all the living and of the dead, the central spring of moral activity will not have been reached, and any reformation which may take place will be super- ficial or evanescent. An American prison chaplain, comparatively new to the duties of his position, was sneeringly asked by an officer how many of the prisoners he had converted by his ministrations. He replied, "The same percent- age, I think, as of the prison officials." If the relation of the foregoing observations to the indeterminate sentence is not self-evident, it can readily be made apparent. Crime is the measure of the crim- inal's opposition to social institutions and of his inca- THE ELMIRA SYSTEM 215 pacity to adapt himself to them. If the institutions happen to be wrong, he may be right ; but he must bear the consequence of his deed. What society demands of him is submission. The discipHne of the criminal law is designed to subdue or convert his will, so as to make it conform to the will of the social whole. Subjugation was the old idea ; conversion is the new. The effort to break a prisoner's will proceeded on the theory that he was a man of exceptional strength, and dangerous for that reason; the effort to enlighten and persuade it assumes that precisely the contrary is the truth, that the criminal is an exceptionally weak man, incapable of self-direction and self-control, to whom it is neces- sary to impart power, but power for good, not for evil. He therefore needs to be studied in a state of incarcer- ation, to discover what is his special weakness, whether it is in his physical, mental, or moral constitution, in order that the treatment to be given him may corre- spond to his actual condition and needs. But no treat- ment will produce the best result, unless the consent and cooperation of the criminal patient are secured. For this an adequate motive, to which he will be likely to respond, is essential. The average crimfnal is an egotist, wh(j has more faith in his own perverted in- stincts than in the advice and assurances of wiser and better men ; he is a creature of habits which he cannot easily shake off ; he does not want to be morally awak- ened and renovated; he sets himself in opposition to every influence which will elevate him and make him ashamed of his past and sorry for it. Ordinary per- suasion is for the most part thrown away upon him. The only motive which is sure to affect him, in pro- 216 PUNISHMENT AND REFORMATION portion to his intelligence, is the hope of freedom. That hope springs eternal in the convict's breast, but it ordi- narily assumes the form of vague expectation of a pardon, or of a favorable chance to escape. If he can be convinced that these anticipations are fallacious, but that he will be released as soon as it shall become appar- ent to the officers who have him in charge that society has no longer anything to fear from him, and that he can convince them of this fact by his own conduct in prison, from that moment his will is gained, and the rest is comparatively easy. As Maconochie expressed it, "When a man keeps the key of his own prison, he is soon persuaded to fit it to the lock." The indeterminate sentence, therefore, puts into the hand of a competent and devoted prison superintendent the precise lever that he requires, in order to subvert the criminality of the convict, assuming that it can be subverted. It is merely a tool. It is of no value if not used, or in the hand of a man who does not know how to use it. It has in itself no reformatory power ; it is a dead thing. The real power is in the reformatory agencies which have been named — -labor, education, and religion. These, if applied, will produce the same effect under a definite as under an indefinite sentence; the difference is that, under the latter, the prisoner ceases to resist their application, and may even be induced to apply them to himself. It puts him in the most favor- able attitude to be operated upon, in the condition most favorable to a cure. The history of the evolution of the conception of the indeterminate sentence is interesting and instructive. Punishment must be admitted to be a natural reaction THE ELMIRA SYSTEM 217 against wrong. In the early stages of social evolution, when the retributory principle was uppermost in the thoughts of men, retribution meant the return to a private or public enemy of an exact equivalent for the injury suffered at his hands ; and in an exact equivalent there was no room for variation within specified limits. When composition of injuries was admitted as an indi- rect mode of retaliation, more satisfactory on the whole to both parties, the substitute payment to be made by the offender to the offended party was a matter of bar- gain between them, and the sum to be paid a fixed sum, which could be neither increased nor diminished. When the State took the regulation of private quarrels upon itself, it inflicted upon the guilty the penalty of death, which was a fixed penalty, or usually some other def- inite amount of loss, like the loss of a finger or an eye, or the infliction of a given number of stripes. Recur for a moment, too, to the slow growth of political in- stitutions, the division of power first between the ex- ecutive and legislature, then the development of courts out of legislative committees, resulting at last in the separation of the judiciary. Remember that imprison- ment was not itself a penalty for crime, until within a very recent period in the history of the world. Impris- onment, like torture, is an elastic penalty, capable of abbreviation or prolongation. Discretionary power to terminate it at some fixed point must be lodged some- where. At first, this power was retained and exercised by the legislature. Absolute penalties were the rule — defi- nite terms of imprisonment for specific acts, regardless of extenuating or aggravating circumstances; or an 218 PUNISHMENT AND REFORMATION » attempt was made in the code to define and estimate at their true value such circumstances. All early criminal codes were fixed codes, with fixed penalties. The evil of fixed penalties, however, can never be long hidden, even from averted eyes. Especially clear is the impossibility of such foresight on the part of the law-making body as will enable it to apportion punish- ■ ment adequately and justly, in accordance with the many varying degrees of guilt, estimated by the double standard of the culprit's intention and the amount of the injury done. We find, therefore, the evidence of a certain shrinking, on the part of legislatures, from a task for which they feel themselves incapable, in the attribution by them to the criminal courts of large dis- cretionary powers in the infliction of punishment, with- in certain prescribed minimum and maximum limits. In this country, at least, the growing tendency of legislatures is to reduce the maxima and do away with the minima. The question now arises, how have the courts ac- quitted themselves, in fact, of this responsibility ? The difficulty has not been gotten rid of ; it is only removed. It was supposed, no doubt, that judges, with all the evidence before them, could make tolerably correct estimates of guilt and suffering, and that they could apportion the one to the other with sufficient accuracy to insure, in most cases, some degree of approximation to equivalence between the two. Has this expectation been realized? It is susceptible of demonstration that it has not. It was an unreasonable expectation at best. Admitting for the moment that a correct human meas- urement of guilt or of suffering is possible, was it to THE ELMIRA SYSTEM 219 be expected that the most protracted and searching criminal trial would reveal all the attending circum- stances of each criminal action — the precise degree of the prisoner's legal and moral responsibility, measured by his ability to characterize his own conduct and to control it, or by the peculiar stress of temptation or provocation under which the act was committed? the precise degree of the injury done to individuals and to the community? the exact menace to society in- volved in a merciful sentence? If not (and still more, if the judge should prove to be impulsive or fickle in his temper, or if the jury and not the judge should be entrusted with the determination of the length of sen- tence), how could the grossest inequality and even in- equity in the apportionment of punishment to different individuals be avoided ? It has not been avoided. The experience of all prison officers affords countless illus- trations of the glaring contrasts between sentences pro- nounced for the same or different offences upon pris- oners convicted in different courts, or in the same court on different days ; contrasts most exasperating to such sense of justice as is found in the breasts of convicts, and calculated greatly to diminish their respect for law and therefore their disposition to obey it. One in- stance, in the State of Illinois, will serve by way of illustration, instead of thousands, where two juries sat upon the case of two burglars convicted separately of robbing the same store on the same night, in partner- ship with each other, and one of them was sent to the penitentiary for one year, the other for three years. But more striking still is the evidence accumulated in the Eleventh Census of the United States as to the 220 PUNISHMENT AND REFORMATION inequality in sentences in different States, often ad- joining each other and alike in all essential political and social conditions. The average sentence in one State, for all offences, has been proved to be more than double that in another; and the want of congruity in sentences for different crimes, in detail, in different localities, is amazing to contemplate. It does not seem to be the fault of the codes, so much as of the courts, if it is a fault. But, upon its face, it is the condemna- tion of the entire system of fixed sentences for particu- lar criminal acts. All definite sentences may be assumed to be unjust, either by way, of excess or of defect. They are also inexpedient. Short sentences fail in many cases to make any impression other than one of indifference to imprisonment; they beget a class of minor recidivists known as rounders or repeaters or revolvers, who are continually in and out of prison, which becomes their principal place of abode. A man named "Silly Kelly" died in Edinburgh, in 1872, at the age of eighty-two years, who had been convicted of drunkenness and other petty offences three hundred and fifty times; it was estimated that he had spent more than forty years of his life in prison. Mr. Frederick Hill has officially reported the case of a man in Scotland, who was con- victed more than one thousand times. The superin- tendent of the New York City Workhouse, on Black- well's Island, once said to the author of this book, "We have prisoners who are repeatedly committed, on the charge of drunkenness, for the uniform term of thirty days. When their term expires, they return to the city. THE ELMIRA SYSTEM' 221 immediately proceed to drink again to intoxication, and are recommitted on the day following. Our guards are allowed, by our rules, one day off each month; and, really, the only difference between the guards and the prisoners, in this respect, is that the latter are locked up, while the guards are not." Long sentences, on the other hand, especially life sentences, depress the con- vict too much, by depriving him of any well-founded expectation of any end to the weary routine of a life without object or stimulus, except in the grave. Definite sentences are never reformatory, since they are in fact retributory, and are founded on the charac- ter of the act, which is past, having occurred prior to the sentence, and is therefore irrevocable. Reforma- tory sentences can be based only upon the character of the actor, which it is desired to correct, but the time re- quired to alter it cannot be estimated in advance, any more than we can tell how long it will take for a lunatic to recover from an attack of insanity. There is an analogy between crime and insanity, which may be pushed to an extreme, yet is useful for our present purpose.^ >■ The analogy between crime and insanity was the theme of an extemporaneous address made by the author, in 1886, to the inmates of the Elmira Reformatory, of which the following were the heads : — 1. The basis of insanity is physical, its manifestations are physical, mental, and moral. The same is true in large measure of criminal propensities. 2. Insanity and crime are both hereditary — to what extent is not definitely known. The predisposition to both is often con- genital. 3. The approach of insanity and the growth of criminal char- acter are alike gradual, in many instances, and unsuspected by the victim of either. 4. The change from innocence to depravity corresponds with the alteration in personal character observable in the insane. 5. The lunatic and the criminal both form theories, to account 222 PUNISHMENT AND REFORMATION Except upon the theory of retribution, why should a criminal be sent to prison for a definite period of time, any more than a lunatic to a hospital for the insane? Is the protection of society more effectually secured by an unsuccessful attempt to satisfy an ab- straction, or by the seclusion of a dangerous element in the community until the convict, in the judgment of experts, who have him under constant and prolonged observation, has ceased to be such? As to the retrib- utory theory of criminal law, it need only be said that crime and penalty cannot be adjusted to each other, unless we first find some accurate measure of guilt on the one hand and of suffering on the other, which seems to be impossible. Regarded in this light, the whole present basis of the criminal law appears to be unsound — ethically, medi- cally, and legally ; the verdict of the three learned pro- for the perversion of which they are more or less conscious, which are very far removed from the truth. 6. The manifestations of insanity assume one of two opposite forms — undue exaltation or undue depression ; in either form they present the appearance of a pronounced self-consciousness, amounting to egotism, and often accompanied by hallucination or delusions. In this particular the resemblances between in- sanity and crime are striking. 7. As insanity tends to make progress and to end in dementia, so does the habitual criminal sink into moral imbecility — the complete loss of moral perception, depravation of moral tastes and inclinations, and paralysis of volition. 8. Insanity and crime are both the occasion of intense pain, succeeded by insensibility or indifference. 9. Both incapacitate their subjects for normal social life; and both are treated by incarceration, if of a dangerous or trouble- some type. The motive of such treatment is twofold, the cure of the patient and the protection of the cojnmunity. 10. The cure of either is difficult; much depends on beginning in time, and, for success in the effort to develop the power of self-restraint or self-direction (which may have been originally lacking, or lost by disuse or abuse), the cooperation of the pa- tient is indispensable. THE ELMIRA SYSTEM 223 f essions against it, when finally delivered, will probably be unanimous. The alternative, if imprisonment is to be retained as the only secondary punishment (or fines, though they are theoretically an alternative form of punish- ment, are commutable into equivalent terms of impris- onment), is the substitution of indefinite for definite sentences. Archbishop Whately said, in a letter to Earl Grey, in 1832:— "It seems to me entirely reasonable that those who so conduct themselves, that it becomes necessary to confine them in houses of correction, should not be turned loose upon society again, until they give some indication that they are prepared to live without a repetition of their offences." Maconochie agreed with Whately in his preference for task sentences rather than time sentences, and gave his reason in the following words: — "The purpose of this is to make the man's liberation, when he is once convicted of a felony, depend upon the subsequent character and conduct evinced by him, rather than on the orig- inal quality of his offence." The first voice, however, raised in favor of distinc- tively reformation sentences was that of Mr. Frederick Hill, Inspector of the Prisons of Scotland, in the fol- lowing words, in a report made by him in 1839:^ "As regards the question, how are convicts to be disposed of after their release from prison, supposing transportation to be abolished, I would humbly suggest that it is desirable that those whom, from the nature and circumstances of their offences, as shown upon their trial, there can be no reasonable hope of re- forming, should be kept in confinement through the remainder 224 PUNISHMENT AND REFORMATION of their lives ; the severity of their discipline, however, being relaxed in various ways, which would not be safe, were it in- tended that they should return again to society." ^ His brother, Matthew Davenport Hill, the eminent Recorder of Birmingham, reduced this principle to the epigrammatic formula, "Reformation or incapacita- tion," meaning thereby that if a prisoner fails to re- form, under proper influences, and remains a peril to social order and security, he should be held for life.^ This was in 1846. The same year, at the opening of the Civil Tribunal of Rheims, M. Bonneville de Mar- sangy delivered a memorable discourse on Preparatory iln Mr. Frederick Hill's book on "Crime" (1853), he refers, in a foot-note to page ISO, to "the plan of using a prison as a kind of moral hospital, to which offenders shall be sent until they are cured of their bad habits" as having been "recommended by Mr. Simpson, of Edinburgh, in a paper on the 'Treatment of Criminals,' which appeared in the Law Magazine many years ago." 2 "The school of (/riminal jurists, to which I belong, have not deserted received opinions on light grounds; or sought for new principles until the failure of the old ones for the production of good practical results had been demonstrated by centuries of experiment, varied until the wit of man had exhausted all the possibilities of permutation. What course then rernained for choice? None within the scope of my imagination, save two. First, such treatment as incapacitates the criminal from the com- mission of offences, leaving at the same time his appetites and passions unsubdued, and his desires unchanged ; or, secondly, a treatment which has for its object to reform him, by leading him to yearn after good instead of evil, and by so training his habits as that he shall be able to give effect to his new aspirations. We are reduced, in short, to Incapacitation or to Reformation. Both these expedients, it must be admitted, are of very humble pretensions, when contrasted with the ambitious aims of deterrent punishment. Incapacitation limits itself to preventing the crim- inal from repeating his offence; either for a time, as when imprisonment is employed, or forever, as by the infliction of death. But as we are in no wise friendly to capital punishment, we would only use incapacitation as furnishing the opportunity ■for exercising reformatory action on the criminal ; or, in extreme cases, for withholding from society one who has resisted all endeavors to approve him." — Letter of M. D. Hill to C. B. Ad- derly.Esq., M.P. (18S6). THE ELMIRA SYSTEM 225 Liberation, in which the same thought was elaborated and defended. He defined preparatory or conditional liberation to be "a sort of middle term between an absolute pardon and the execution of the entire sen- tence; the right conceded to the judiciary, to release provisionally, after a sufficient period of expiatory suffering, a convict who appears to be reformed, re- serving the right to return him to the prison, if there is against him any well-founded complaint." He espe- cially pointed out that this was the method of dealing with juvenile offenders already accepted by the French law, and equally applicable to adults.^ Mr. Brockway accepted this principle, as did many ^ In 1847, M. Bonneville (who was procureur du rot at Ver- sailles) elaborated his thought in a work entitled "Traite des institutions complementaires du regime penitentiaire" (An essay on the institutions complementary to the penitentiary system), in which he discussed the pardoning power, conditional liberation, police surveillance of discharged convicts, patronage (aid to discharged convicts), and rehabilitation. This was distributed by the French Government to the members of both Chambers, as though it had been an official document. In 1864 he published a larger work in two volumes entitled "De I'amehoration de la loi criminelle," of which the twenty-fourth chapter is devoted to the discussion of conditional liberation, which, he says, "is noth- ing more nor less than the extension to adult convicts of a prin- ciple applied with such success to juvenile offenders." He insists that "as a skilful physician gives or withholds remedial treatment according as the patient is or is not cured, so ought the expiatory treatment imposed by law upon the criminal to cease, when his amendment is complete ; further detention is inoperative for good, an act of inhumanity, and a needless burden to the state." So- ciety should say to the prisoner : "Whenever you give satisfactory evidence of your genuine reformation, you will be tested, under the operation of a ticket-of-leave ; thus the opportunity to abridge the term of your imprisonment is placed in your own hands." This course is, in his opinion, recommended by considerations of the greater deterrent effect of longer sentences by the courts, and of the moral encouragement ' given to the prisoner by the hope held out to him, as well as of the aid rendered to discipline in the prison; also for economic and sociological reasons. In his second volume he expresses satisfaction with the Irish graded system and the excellent results thereby secured. 226 PUNISHMENT AND REFORMATION other American students; but he did more. He se- cured its incorporation into American law, first in Michigan, in 1868, in the passage of the so-called Three Years' Law, applying to prostitutes, which au- thorized their commitment to the Detroit House of Correction for an indefinite term, not exceeding three years, and had for its immediate effect a general exodus of women of that class from that city. Sub- sequently, in 1876, he drafted the original statute directing the sending of young first offenders to Elmira under an indeterminate sentence, not to exceed the maximum term named in the New York code for each of the offences of which they might be convicted. He then proceeded to show, in the organization and government of the new Reformatory, what could be done, by the aid of this weapon, in the way of making good citizens out of bad. This is the signal service to humanity rendered by him, which has settled his posi- tion in the history of criminal reform, despite any errors of judgment on his part in the details of the application of the system. The principle of the indeterminate sentence, with majority as its maximum, for juvenile offenders, was already familiar to us all. We were also accustomed to the operation of the commutation or good time laws, by which the actual term of imprisonment is abridged, in conformity to a standing rule in force at the time when sentence is pronounced, as a reward for good conduct while in prison. These were helps to the accep- tance, as an experiment, of the indeterminate sentence, so-called, though the true indeterminate sentence has THE ELMIRA SYSTEM 227 neither minimum nor maximum, and no one has had the courage to propose its adoption, as yet.^ The Elmira system, in practice, is a combination of marks, grades, and the parole, under the indeterminate sentence. The division of prisoners into grades, and the practice of promoting them from one grade to an- other, were methods prescribed in Massachusetts by law in 1826, and followed in the Massachusetts State Prison for many years. But, so far as appears, pro- motion was not offset by any corresponding power of degradation, nor was the sentence shortened as a re- ward for winning one's way into the third or highest class, neither was the classification determined by marks. Whether this was an original Massachusetts idea or borrowed from Australia is uncertain. It ap- parently did not give satisfaction, for it was ultimately dropped, and is now pretty much forgotten. Marks are useful, but possibly not essential, as a means of keeping the record upon which a prisoner's promotion or degradation depends. They should of course be given in the three divisions of his daily life, for obedience to rules of order, work done in the shops 1 Since the above paragraph was written, my attention has been called to the fact that in New York the maximum limit has been removed. Theoretically, its removal can be justified, and logical consistency probably requires that it should be removed; but prudential and practical arguments can be adduced against pushing a sound principle to this extreme, in advance of its general and decided acceptance by the public at large, on the following grounds: (1) Such action is unnecessary, since, if the maximum is sufficiently high, the same purpose is subserved as if there were no maximum; (2) the public and the courts are reluctant to place in the hands of any man or set of men un- limited power to detain a prisoner for life, regardless of the gravity of the offence of which he is guilty, especially if he is a young man and a first offender; (3) there is danger that a reaction may set in, which will encourage the enemies of the system to move for a return to definite sentences. 228 PUNISHMENT AND REFORMATION or elsewhere, and diligence in study. Their number is a question of pure detail, like marking in school: the highest mark may be three or five or ten, it matters little which. So, too, the number of classes may be varied, according to circumstances. The indispensable feature of the progressive classification scheme is that prisoners shall be raised and lowered in the scale on the basis of their merits. There are, however, in- stances in which the arbitrary remission of punishment by loss of rank is justified, by the effect upon a dis- couraged man. The good of each convict and of the body of convicts is the end sought, and anything which tends to secure that is proper. Conditional liberation or the ticket-of-leave is not to be confounded with the indeterminate sentence. Con- ditional liberation is the act of the executive, not of the judicial branch of the government. It is the release of a convict, prior to the expiration of sentence, on proba- tion, if, in the judgment of those in the most favorable position for forming a correct opinion, there is good reason to believe that he will henceforth abstain from crime ; but he is released with the express understand- ing that he is still in custody, and that if he disappoints the expectation entertained of him, and relapses into criminal associations or ways, or manifests signs of being about to do so, he can and will be arrested and returned to the prison at any time during the continu- ance of his ticket-of-leave and before his liability to the criminal law terminates by his absolute discharge. Wherever conditional liberation is practised, except in the United States, this privilege is granted under a definite sentence: this is the case in England, Germany, THE ELMIRA SYSTEM 229 Switzerland, France, and Holland. The usual custom abroad is to delay the giving of a parole — in Sweden until the convict has served ten years; and it is re- garded more as an act of grace, and not so much as a reward, to which the man who has earned it has a title.^ It seems more important to define the principles upon which the Elmira system is founded, than to describe in detail the architectural and other structural arrange- ments and the general management, however interest- ing that might be.^ The great underlying thought in ^ The first application of the principle of conditional liberation or "ticket-of-leave" to adults was by the English Government, after the failure of the system of transportation. By the law of 1847 this privilege was granted only to convicts shipped to Aus- tralia; but by the Act of 1853 tickets-of-leave were authorized to be granted also to convicts incarcerated on English soil. The system of conditional liberation (German, Erlaubs-pass) was adopted by the Kingdom of Saxony in 1862; and in the same year by the Grand Duchy of Oldenburg; in 1868, by the Canton of Sargovie, in 'Switzerland; in 1869, by the Kingdom of Serbia; in 1871, by the German Empire; in 1873, by the Kingdom of Denmark, also by the Canton of Neuchatel; in 1875, by the Canton of Vaud, also by the Kingdom of Croatia, in Hungary; in 1878 by the Canton of Unterwalden ; in 1881, by the Kingdom of Holland; in 1882, by the Empire of Japan; in 1885, by the French Republic. In none of these countries is it connected, as in the United States, with the indeterminate sentence. In all of them it is hedged about with more or less superfluous legal restrictions, which tend to defeat the end in view in its en- actment. 2 An apology seems to be due to the other American institu- tions founded upon the Elmira principle and in successful oper- ation, for giving what' may seem to be undue prominence to the New York Reformatory at Elmira, as if it were the only one worthy of mention or discussion. This is by no means the author's opinion. The Massachusetts Reformatory, at Concord, in particular, should be carefully studied, since it is strong in some of the very particulars in which the New York Reformatory is weak. But Elmira is the mother institution. Its superin- tendent, Mr. Brockway, was one of the little group of advanced thinkers upon this question who dared to advise the new depar- ture and to elaborate it in imagination, before their ideas were given concrete form and substance. He was its creator, and 230 PUNISHMENT AND REFORMATION that institution is that criminals can be reformed ; that reformation is the right of the convict and the duty of the State; that every prisoner must be individuahzed and given the special treatment adapted to develop him in the point in which he is weak — physical, intel- lectual, or moral culture, in combination, but in vary- ing proportions, according to the diagnosis of each case; that time must be given for the reformatory process to take effect, before allowing him to be sent away, uncured; that his cure is always facilitated by his cooperation, and often impossible without it; that no other form of rewards and punishments is so effec- tive, in so many instances, as transfer from one class to another, with different privileges in each; but that the supreme agency for gaining the desired coopera- tion on his part is power lodged in the administration of the prison to lengthen or shorten the duration of his term of incarceration. The other great thought, here insisted upon as nowhere else in the world, is that the whole process of reformation is educational ; not mean- ing by that term the injection of information without assimilation, but the drawing out to its full natural and normal limit of every faculty of the body, mind, and soul of every man who passes through the institu- tion. This is accomplished by all sorts of athletic train- ing ; shop work, military drill, gymnastics, Turkish and was in charge of it, from the day it was opened. It has seemed better to confine the reader's attention to the most striking and original example of the ideal prison than to dissipate his thoughts by dwelling upon possible differences in the spirit and adminis- tration of prisons of this class. The application of the Elmira principle to women may be studied in the Massachusetts Prison for Women, at Sherborn, an institution of which all Americans have just reason to be proud. THE ELMIRA SYSTEM 231 other baths, massage, and diet; by all sorts of intel- lectual discipline as well, including not merely class instruction and the hearing of lectures on subjects in which prisoners most need instruction, but also sys- tematic reading under direction, and examination upon the books read ;^ writing for the Summary, the prison weekly which circulates instead of the ordinary daily newspaper within the walls ; and debate, in the presence of a teacher who guides and moderates the discussion. Trade instruction is made prominent. The aim of the,, institution is to send no man out who is not prepared to do something well enough to be independent of the temptation to fraud or theft. If the question is asked. Where does the punishment come in? the answer is: In the discipline, which is unre- mitting and exacting ; in the violence done to the crimi- nal tastes and habits of the prisoners, which they have no opportunity to indulge ; in the consciousness that one is held in a net of influence and restraint, which one is powerless to break; in the uncertainty as to one's ability to earn a discharge in time, or without too great a personal sacrifice ; in the regularity and monotony of life under a rigid rule. Certain it is, that the worst men prefer to be sent to a prison organized on the old plan, and that there have been moments when the strain of anxiety to win an early parole has been so 1 "It appears to me that we have a right to believe in the alteration of character of a prisoner, who at the beginning of his term of incarceration took pleasure only in reading of a frivolous sort, but, after having atfended school for several months, draws from the library none but scientific or other serious works, and assimilates their contents, as the teacher knows, from his answers to the questions put once a month to all prisoners concerning their reading."— Dr. Guillaume of Switzerland. 232 PUNISHMENT AND REFORMATION ominous of possible mental derangement as to alarm the superintendent and compel him to relax the pres- sure upon certain sensitive spirits thought to be in danger of eclipse. For the generation of the moral force necessary to carry the mass of prisoners upward and onward in a great reformatory current, association (under necessary restrictions) is indispensable, which is the reply to the criticisms upon this system by the ad- vocates of the Pennsylvania system. Nor is there any point in the observation that association and routine are inseparable, and that individual treatment is impossible without cellular separation by day and night. If that were true, it would be necessary to have a separate class-room for every child in school, and to build our churches with separate stalls, as chapels are constructed in some foreign prisons.^ The Elmira system has been adopted in whole or in part, and made applicable to all or a part of the pris- oners, in several other states: in Massachusetts, Penn- sylvania, Ohio, Michigan, Illinois, Minnesota, Kansas, and South Dakota. One advantage gained from it is that it compels the study of the criminal himself, from all points of view ; also the study of the causes and con- ditions which have made him what he is. Above all other systems, however, it demands direc- tion by a man of the highest integrity, attainments, and consecration. It has dangers peculiar to itself. The least of these, perhaps, is the liability to bribery and 1 For a full and detailed account of the administration of the system at Elmira, the reader is referred to "The New York State Reformatory in Elmira," by Alexander Winter, F.S.S. (London, 1891), or to the more recent "Year Books" of the institution itself. The latter are finely and profusely illustrated. THE ELMIRA SYSTEM 233 corruption of the warden, if he has the power of re- lease, to secure the earher discharge of convicts not entitled to consideration on account of their records. It is far more probable that, as the result of our wide- spread acceptance of the doctrine that office is the re- ward of partisan service, and that parties can only be held together by the hope of plunder, the position of superintendent of a reformatory prison (and all prisons should be reformatories) will be given to an incompetent man, in payment of a political debt. The art of practical politics has been well defined as "the art of paying your debts at somebody else's expense." On this subject the author may be excused for quoting from himself: — "If a warden is given his place as a reward for party service, he is in so far disqualified for the highest success, by the very tastes and aptitudes which fit him to be a party leader. But whatever may be his fitness for the position, it is certain that, under a political administration of prisons, he will be turned out, whenever the control of the government passes into the hands of the opposite party, or even of a diiierent faction of his own party. He has therefore little inducement to master the business en- trusted to him. Worse than that, the subordinate positions in his gift are regarded as counters in the game ; and unless he has himself the sense and skill to play them for all that they are worth, these minor appointments will be dictated to him, and he will be forced to put up with incompetency, if not with disloyalty. There can be no prison reform in the tfnited States until the divorce of the prison system from practical politics is pronounced with such authority as to prevent any subsequent reunion of the two." What constitutes competency depends upon what is expected of a public officer. If nothing more than that prisoners shall not escape, a soldier or a policeman will answer. If a pecuniary profit from convict labor is de- 234 PUNISHMENT AND REFORMATION manded, the warden must be a good business man. If he is to make the prison a factor in caucus and conven- tion pontics, he must be a "fine worker." In any event, he must be a judge of human nature, and capable of handhng men. Honest he must be, of course, and kind, for if not kind, he is apt to be lacking in personal bravery. But if he is to be the centre and mainspring of educational and reformatory influence, he must be unsurpassed as a teacher and as an example of purity. The work of uplifting the degraded is one which calls for the highest qualities of soul and of brain. It is a work which it would not have shamed Phillips Brooks to have undertaken, at Charlestown or Concord ; and, until we have the best men in this position, we cannot look for the best results. Where the personal fate of a thousand or fifteen hundred men depends upon the application to duty, the insight, the moral honesty, of another man clothed with almost despotic power, it will not answer to give that power into the possession of one who does not understand his responsibilities or who is unequal to them. But, if he possesses the requi- site characteristics, no imaginable force will add so muth to his power for good, as the right to fix the date of graduation of his pupils. CHAPTER XI CRIMINAL ANTHROPOLOGY The scientific study of the physical and psychical peculiarities of criminals is a new branch of anthropo- logical investigation, to which the name of criminal anthropology has been given. Crime is admitted to be an ethical, social legal fact; is it or is it not also a biological fact? Naturally, biologists are disposed so to regard it, and they look with envy and disgust upon the mass of clinical material for biological and anthro- pological research which is allowed to go to waste, from the lack of scientific curiosity, in prisons. The conclusion to which such study points, in the estimation of men whose opinions are not to be dismissed without due consideration, is, in the words of Benedikt, that "The brains of criminals exhibit a deviation from the normal type, and criminals are to be viewed as an anthropological variety of their species, at least among the cultured races." \ There is always danger inispeaking of groups or classes of men, without reservations, such as that a particular observation is meant to apply not to all in- dividuals of the group^-but to the majority; or that it is intended as a gefieralization expressive of an average condition and tendency; or that it is true of all mem- bers of the group who fall within certain defined limits, and that the exceptions are outside those limits. 235 236 PUNISHMENT AND REFORMATION Precisely what constitutes an "anthropological va- riety" is not quite clear. But certainly it is a group of which the physical, mental, and moral composite, if we could arrive at it, would differ from the correspond- ing composite which should include all mankind, or all of a given race, or all the members of all other groups exclusive of the one under observation ; and it might be assumed that it would also differ from the composite of any other group that can be named. Probably, too, if our knowledge of its history were minute and exten- sive, it would appear that it had been generated, under the pressure of a special environment, by inheritance; and we might even be warranted in predicting for it that it would continue to exist and grow, as a distinct aggregation of individuals more or less remotely con- nected with each other by blood, on account of marital unions between its members and the resulting intensi- fication of the hereditary criminal strain. The result of this process of evolution of a separate class in the community would be that, upon the whole, the individ- uals included in it would bear a certain family re- semblance to each other, manifesting itself in the absence or defect of certain physical and psychical traits common to other men, and in the corresponding overgrowth of other organs, functions, or habits. The question to be answered, therefore, is whether men who have been convicted of crime and sentenced to imprisonment constitute such a group; whether the percentage of known criminal peculiarities of any sort can be ascertained and compared with the correspond- ing percentage for men not convicted and sentenced ; and whether the differences which can be demonstrated CRIMINAL ANTHROPOLOGY 237 by a sufficient number of observations pointing to a common conclusion are due to heredity or environ- ment, or to both, and, if to both, in what relative proportion. A multitude of medical and other scientific men, with greater or less aptitude for this sort of inquiry, have had their attention directed to this question and are seeking for its solution. It needs no apparatus for minute and accurate meas- urements, with rules, scales, callipers, and goniometers — no chemical analysis of blood, tissues, and excre- tions — ^no careful experiments to test the degree of nervous susceptibility of different sensory organs — ^no specially devised psychical tests — to enable a common man, familiar with criminals through his relation to them as ah officer of the police or of a court or prison, to describe their most obvious and striking characteris- tics. As a woman masquerading in male attire can be readily detected by a trained eye, so a thief can be known often by his looks and motions. A "furtive" look (furtive from fur, Latin for thief) is the look of a thief. But so can most mechanics, and even pro- fessional men. The demand made by every avocation in life upon its votaries for specific exertions on the one hand and sacrifices on the other, never fails to leave its impress upon the figure, the attitude, the en- tire bearing of the man, and to affect even his dress and gestures. This is not saying, however, that bank- ers or clergymen or editors or hotel clerks constitute distinct types, or that by anthropological study each of these groups of men engaged in similar pursuits could be shown to constitute a type, that is, "an en- 238 PUNISHMENT AND REFORMATION semhle of distinctive characters" tending to perpetuate itself by sexual selection. The criminal anthropologists dissect the criminal, so to speak, while he is still alive ; measure every anatom- ical dimension of skull and trunk and limbs, record the color of his hair and his eyes, take his temperature, test his vitality with the stethoscope and sphygmograph, count his inspirations and expirations, search every- where for evidence of abnormality of structure or of physiological action — for the pathological; and they extend this search to the internal organs, if the desired opportunity offers itself for an autopsy. It is a tedious process, if thorough, involving as it does, the examina- tion of a multitude of individuals, and the comparison not of isolated phenomena, but of aggregated groups of phenomena. What have they found? A general answer to this question is all that can properly be given in a work not medical but designed for lay reading, avoiding as far as possible technical terms and omitting observations which are incomprehensible without a minute acquaint- ance with the anatomy of the human body, particularly of the brain and nervous system. Among the anatomical peculiarities noticed by stu- dents like Lombroso, Ferri, Benedikt, and many others who might be named, are the shape of the skull, includ- ing cranial asymmetry, microcephalism and macro- cephalism. A very frequent defect is insufficient cranial development, markedly in the anterior portion. A receding forehead is common. Criminals are said to have a disproportionate tendency to the sugar-loaf or pointed head. Lombroso makes much of the un- CRIMINAL ANTHROPOLOGY 239 usual depth of the median occipital fossa. This is ob- servable in the skull of Charlotte Corday, belonging to the collection of Prince Roland Bonaparte, which was exhibited at the Second International Congress of Criminal Anthropology at Paris, in 1889, and gave rise to a somewhat heated discussion of the question whether she was in fact a criminal or a patriot.^ The same authority calls attention to the exaggeration of the orbital arches and frontal sinuses. Thieves are said, by one criminologist, to have small heads, while murderers have large heads ; the sufficiency of his data for so daring a generalization is questionable. Be- neath the skull, Benedikt claims to have discovered an unusual confluence of the fissures of the brain, and additional convolutions in the frontal lobe. The shape of the skull affects the countenance, in which have been observed certain deformities of the nose and ear, peculiarities in the coloring of the eye, irregularities of the teeth, prominence of the cheek-bones, elongation of the lower jaw, and the like. Another bold generali- zation is that which declares that the long and square jaw is common among criminals guilty of crimes of 1 "Lombroso said that the skull of Charlotte Corday demon- strated anatomic characters of the criminal born, such as platy- cephalic, the occipital fossette, and other characters of the virile skull. Dr. Topinard responded by affirming that the skull of Charlotte Corday was normal, and that it presents all the proper characters of the skull of a woman. The platycephalic was a normal character, and the vermicular fossette was not an anom- aly, and there was nothing irregular in the skull, unless it should be its platycephalic: and he said it was rare that a skull was the same in all its parts, and on both its sides. Benedikt said that according to his belief one had as much right to say that the occipital fossette was an indication of predisposition to hemor- rhoids as to crime. Ferri and Lombroso replied vigorously to Benedikt, while Senator Moleschott came to his aid." — Dr. Wil- son's Report to the Smithsonian Institution. 240 PUNISHMENT AND REFORMATION violence, but a receding chin among petty offenders; this is bold, however, only in the sense that it probably rests upon an inadequate statistical foundation, other- wise it is merely the application to convicts of a hack- neyed physiognomical remark. The prominence of the criminal ear has been especially noted. Prisoners are said to have wrinkled faces; male prisoners have often scanty beards ; many hairy women are found in prison. Red-haired men and women do not seem to be given to the commission of crime. Similar remarks might be quoted relative to the skeleton, such as that convicts have long arms, pigeon-breasts, and stooping shoulders. Some of the physiological peculiarities noted are dis- ordered nervous action, insensibility to pain, quick and easy recovery from wounds, defective taste and smell, strength and restlessness of the eye, mobility of the face and hands, lef t-handedness, excessive temperature, perverted secretions, abnormal sexual appetites, pre- cocity, and so forth. Some medical writers say that the hearing of criminals is defective, others that it is pre- ternaturally acute. Some affirm that color-blindness is prevalent among them, but others that it is rare. They are usually sensitive to climatic and meteorological influences. A very common observation is their free- dom from the habit of blushing, but this may be a psychological rather than a physiological phenomenon. The value of scientific investigation depends upon a variety of considerations, such as the competency of the observer, the number and extent of the observations, and the methods employed. No observations, however numerous, are of any scientific value (except as ma- CRIMINAL ANTHROPOLOGY 241 terial for science) until they are reduced to order by classification and comparison. Observations of the ab- normal are of no value without comparison with the normal. The test of the adequacy and accuracy of the obser- vations themselves is the agreement or disagreement of the observers in statements of fact. In the declara- tions regarding convicts made by criminologists, dis- agreements like those above cited as to their color- blindness or their hearing prove that the examination made was superficial, on the one side or the other, or else that the groups examined were of insufficient size to insure correspondence in the statistical result. This inquiry of necessity assumes largely a statistical form. The opportunities of police and prison officers to ob- tain, by means of daily contact with the criminal class, more accurate impressions and a better general notion respecting their appearance and character, exceed those of any scientific enthusiast; but they are apt to be unskilled observers, incapable of conducting an in- vestigation after the systematic methods followed in an anthropological laboratory, or of pursuing it to the point of medical interrogation of the vital organs ; and the commonplaces of the prison need statistical veri- fication, for which records are necessary, which it is not usual to keep. Now every statistician knows that the limits of variation in the percentages obtained by the mathematical subdivision of any two correspond- ing groups of observed facts, if the groups are only large enough, are extremely narrow. Where the groups are large, and the percentages do not closely approximate each other, group for group, the differ- 242 PUNISHMENT AND REFORMATION ence is the result of causes operating locally, which are either known or can be searched out. Until a sufficient number of criminological statistical tables shall have been made and compared with each other to demon- strate their substantial agreement, without reference to the personality of the observer or the observed, the elementary facts of criminal anthropology can have no scientific authority, for want of an adequate scien- tific basis. In the second place, the comparisons which must be made, in order to have any bearing upon the question of the existence or non-existence of a distinct and recognizable criminal type, must be comparisons not of isolated phenomena, but of groups of phenomena. A type, whatever else it may be, is "an ensemble of characters." , It is not enough to know that certain characters exist in detail in more abundant measure in the criminal than in the non-criminal class; their tendency to repeat themselves in certain specific com- binations must be proved, and the combinations them- selves described. The new science, if it is a science, is not yet in position to attempt anything of the sort. The extreme difficulty of such a comparison is probably unsuspected by the great majority of its votaries. Furthermore, if every criminal in the world were listed, examined, a truthful report made of all his es- sential peculiarities, and an accurate count made, show- ing all the important grouping^ of such peculiarities, so that the result could be tabulated and the percentages calculated, it would still be necessary to have a corre- sponding report exhibiting the same groupings of the same characters in an equal number of persons never CRIMINAL ANTHROPOLOGY 243 convicted of crime, as a background for comparison, before the assertion that any particular grouping is even prima facie evidence that its subject belongs to a separate anthropological type. The case is here put strongly, in order to impress this point upon the imagi- nation. It would not in fact be necessary to carry the investigation so far. But it is necessary to carry it far enough to secure credibility in the result, and it must be carried as far for the innocent as for the guilty. It is said that red-haired criminals are relatively more rare than honest people with red heads. How is this known? How can it be known, without a statistical inquiry too extended to be attempted by private ini- tiative ? Suppose that the reverse were true ; would it be allowable to entertain a suspicion of the honesty of all blondes? The peculiarities recorded in the case of convicts are also observable in honest men and women. Much has been made of cranial asymmetry, about which every hatter who uses a formateur can give a criminologist points which would possibly correct his estimate of the value of this particular stigma. A photographer could do the same with reference to asymmetry of the countenance ; if he knows his busi- ness, he makes every subject sit with the worst side of his face in shadow. Anatomical remarks are of course the most palpable ; for this reason the writings of the anthropologists ex- hibit the greatest affluence of statistics upon the precise points which are of the smallest relative significance. Of greater importance is the study of physiological peculiarities, especially if they are at the same time pathological and reveal a nervous diathesis analogous 244 PUNISHMENT AND REFORMATION to that of the insane or epileptic. But, after all, the most important characters demanding investigation are the psychical. If a criminal type in fact exists, it can be discovered and brought to light only by a demonstra- tion of the uniforin or approximately uniform coexist- ence of certain combinations of physical and psychical manifestations, which are rarely if ever found to be dissociated from 6ach other. Such a demonstration would afford a trustworthy basis for scientific previ- sion and prediction. The perfection of any science is shown by the capacity of those who have mastered it to read the future, as astronomers, for instance, are able to foretell the precise moment of an. eclipse, while meteorologists can rarely foretell the weather twenty- four hours in advance. Judged by this standard, crimi- nal anthropology is still in the state of adolescence, if not of infancy. Finally, what is a type? The word is employed in two very different senses. Popularly, perhaps, it is used to express the fact that certain groups of charac- ters repeat themselves in numbers of individuals, without reference to the question whether they are accidental and due to environment, education, or habit, or whether they are transmissible by inheritance. Every such group of individuals bearing a marked resemblance to each other in appearance, habits, tastes, occupations, and so forth, is said to be a type. Even in this sense a single character does not constitute the type, but an aggregation of characters — an ensemble. In the strictly scientific sense, on the contrary, an anthropological type cannot be said to exist, where it does not tend in a high degree to reproduce itself in CRIMINAL ANTHROPOLOGY 245 offspring. The ensemble of characters which, taken together, express it, must be recognized in a majority at least of the members of a family, a tribe, or a nation, united by ties of blood. They must be inherited from a common ancestor. In the first of these two senses, the existence of a criminal type is admitted, though it may be difficult to define with precision all the elements of which it is composed. In the more restricted and accurate signification of the term, the existence of an anthropological criminal type has not been proved, and it is doubtful whether it can be proved. In order to prove it, it will be necessary to push the inquiry a step further, and to ascertain, in a sufficient number of individual instances, whether any special group of peculiarities demonstrably attaching to crimi- nals and more rarely found in combination in virtuous, peaceable, honest citizens, did in fact characterize either or both the parents of the criminals in question ; or, if not, whether they characterized some more remote pro- genitor; and whether they are repeated in any con- siderable number of the near relations of the aforesaid criminals, who may be supposed to have in their veins a large proportion of the same vicious or degenerated blood. Here we touch upon the vexed question, still in suspense, of the transmissibility of acquired characters, into which we cannot here enter, but which is the vital question of evolution, and the central point of this par- ticular controversy. From these statements the reader may form an ade- quate notion of the difficulty, as well as of the impor- tance of the task to which these gentlemen have devoted their talents and their energies. The obstacles to be 246 PUNISHMENT AND REFORMATION overcome are enormous, if not insuperable. They are enhanced by the ignorance, stupidity, indifference, sus- picion, and inveracity of the convicts, who alone, in many cases, can give the desired family history (which a large percentage of them cannot do), and whose statements regarding themselves require verification, before science can predicate any conclusions from them. When the facts shall have been collected and verified, the work of interpretation will be in order; but it involves so much hypothetical, speculative rea- soning, particularly upon the point of the relative im- portance of heredity and environment in the production of the specific characters included in each type, that the conclusions formulated will differ with the personal convictions and prejudices of the writer. From the description of an anthropological type should be ex- cluded all characters which are not hereditary, or at least transmissible — cuts and scars, for instance, of which there is a fearful percentage among old, habitual convicts; and yet one observer with little notion of perspective gives undue prominence in his picture of typical crime to the wrinkled faces of prisoners.^ Among the questions on which students are by no means agreed is that of normality: what is normal? and what is abnormal? At the Rome Congress of Criminal Anthropology, Albrecht entered the con- troversial arena with the astounding motto emblazoned upon his crest : "The criminal alone is normal — ^not the ^ There is indeed a wrinkled face — the face of an idiot child, with a prematurely old look (though this may also be compared to the wrinkled faces of the newly bom), which is connected with congenital defect; but there are also wrinkles of remorse and care, of passions indulged, which are purely individual and largely due to environment. CRIMINAL ANTHROPOLOGY 247 honest man." (David said, in his haste, that all men were liars. ) There is also apparent a tendency to divi- sion upon the question whether murder or theft is the more truly typical crime ; which of the two can be most clearly traced to a prenatal origin. Garofalo thinks that murder is the crime par excellence and that the sentiment of probity is, evolutionally speaking, "more recent" and less transmissible by inheritance; that causes external to the thief himself, such as hard times, want of employment, etc., more directly affect the prevalence of crimes against property. Habitual theft, however, is more common in the aggregate and proba- bly also more common relatively to the whole number of crimes of violence or of dishonesty, than habitual murder; so that the late and lamented Mr. Richard Vaux, who was not an anthropologist, but who was for more than half a century connected with the board of management of the Eastern Penitentiary of Phila- delphia, would exclude from the "crime-class" all con- victs who are not thieves. Nevertheless, the attempts which have been made to place criminal anthropology in the rank of a true science are worthy of the highest commendation, be- cause they serve preeminently to bring into high relief the truth that criminal jurisprudence has reached a period in the history of civilization, when it can no longer afford to confine its attention to the crime and the penalty for crime, but must take notice of the criminal also. The attack upon the legal profession by the medical profession is justified by the necessity for establishing harmony between statutory and natural law, which has been disturbed by the blind conserva- 248 . PUNISHMENT AND REFORMATION tism of the criminal code, clinging to exploded prece- dents, and refusing to recognize the demand for new foundations and a new superstructure. The actual work of renovation can be effected only by lawyers, since the changes to be made in the law must not con- tradict the established principles of civil government and of judicial procedure. But reforms in existing institutions are rarely, perhaps never, brought about, except by agitation and pressure from without. It pertains to the medical and clerical professions, acting in concert but from opposite directions, to formulate the demand for the indeterminate sentence and for a reformatory discipline, in prisons, properly guarded, so as fully to protect individual rights, justice and freedom. It pertains to the legal profession, and to the people represented in the legislature, to meet this demand. When the demand shall be met, as it surely will be, the criminal anthropologists will be entitled to their full share of credit for promoting and keeping alive the agitation to which the benign result will be due. One immediate and practical result has already been accomplished, if no more ; the recognition of the value of anthropometry as a means of identification of crimi- nals, and detection of recidivists. Anthropometry is an aid to anatomical study only, and therefore its scientific importance, according to the views expressed in this chapter, is comparatively slight. But the meas- urements taken of the bony skelton — ^the height, length of the extended arms, of the limbs and their component parts separately (including the fingers and the feet), and dimensions of the skull and chest — do not precisely CRIMINAL ANTHROPOLOGY 249 correspond in any two human beings, in their totality. Dr. Alphonse Bertillon, of Paris, has grasped this thought, and he has devised a set of instruments for taking these measurements, and a system of recording them upon cards and arranging the cards systematic- ally, so that, under the classification which he has in- vented, they can be consulted with as much ease as a dictionary, or the card catalogue of a library. His card catalogue of convicts is the best conceivable form of a universal criminal register, upon many accounts ; not only because it is practical, accurate, and adequate ; but because the habitual convict whose criminal record is needed for any legitimate purpose can be unmistaka- bly identified thereby, without any knowledge of his name ; while the accidental or occasional criminal who does not relapse into crime, and is not again arrested, is therein buried out of sight as irrecoverably as if the record had been destroyed in the central fires of the earth. It has been adopted by many nations, states, and municipalities; but for the highest utility in this country the creation of a central registration bureau is a necessity, which should be under the control of the Federal Government, as the only suitable and proper agency for its' creation and maintenance. It is now possible to add to the foregoing analysis the results of an elaborate and painstaking inquiry, based upon the careful measurement of a large num- ber of criminals and intended to determine once for all whether a criminal anthropological type exists. This inquiry was completed after the first edition of the present volume was published. Heretofore, the 250 PUNISHMENT AND REFORMATION chief weakness of those who opposed the Italian school has been their lack of trustworthy facts with which to confute the claims of their antagonists. However extravagant these claims might be, they were difficult to upset when put forth in an atmosphere of scientific veracity and repeated with great conviction. A new day dawned, therefore, in the anthropological study of the criminal, when a deputy medical officer of Park- hurst prison in England, Dr. Griffiths, after listening to heated discussions of the Lombrosian theory at a Paris congress of criminologists, decided to go home and discover the truth for himself. Dr. Griffiths' intention was to select a large number of prisoners convicted of certain similar offences, to make accurate physical measurements of them, and to conclude upon the basis of these measurements whether, in fact, the prisoners studied showed any deviation from persons who had not committed crime. The plan was later enlarged to include the general body of convicts without selection, and observations were begun in 1902. Three thousand prisoners consecutively admitted to English convict prisons were studied. So stupendous was the under- taking that not until 1908 were all the data compiled, and not until 1913 were interpretations and conclu- sions published.^ Meanwhile, Dr. Griffiths had been replaced early in the inquiry by Dr. Charles Goring, upon whom fell the brunt of the investigation and to whose personality and determination is due the major part of the credit for carrying it through. All of the prisoners studied were recidivists. They 1 "The English Convict," published by His Majesty's Station- ery Office, London, 1913. CRIMINAL ANTHROPOLOGY 251 were, thus, the very persons who would most confi- dently be presumed to constitute a criminal type, if such type there be. Though examinations were made by different medical officers, a uniform procedure was adopted and Professor Karl Pearson, whose applica- tions of the methods of statistical science to large masses of craniometric data have attracted wide at- tention, gave his personal assistance and granted the use of his biometrical laboratory. It would be tedious here to describe the elaborate mechanism by which Goring first secured and then "weighed" his facts. Coming at once to his compari- sons, the first of these lay between the head-length, head-breadth and cephalic index (ratio of breadth to length of head) of the 3,000 criminals, and the same characteristics of 1,000 undergraduates in Cambridge University, England. (The data concerning the un- dergraduates had been secured from the Cambridge Anthropometrical Committee.) A difference was found between the two groups of only 1 millimetre in mean head-length and of 3 millimetres in mean head- breadth, the criminals displaying the smaller meas- urements. These differences are, of course, fairly negligible. Moreover, the criminals were sixteen years older than the Cambridge students on the average, and 3J/2 inches shorter. When, therefore, corrections were made for these differences, the variation in head- breadth was materially reduced and the variation in head-length entirely disappeared. Then, too, the heads of the convicts were closely cropped of hair, a fact leading, said Goring, to a relative "depreciation of measurements." The difference in skull capacity. 252 PUNISHMENT AND REFORMATION thirty-four cubic millimetres, was pronounced by him "practically negligible" when considered in relation to the total magnitude involved. Similar comparisons were made between prisoners and Oxford undergraduates. Data concerning 959 Oxford students happened to be at hand. When these were set off against the measurements of criminals, the results were the same as in the comparison with Cambridge students. Differences ranging from lj4 to 2 millimeters in the three principal head diameters were revealed. The considerations that tended to diminish these differences in the former study were equally applicable here, so that once again it was demonstrated that the youth who committed England's crimes were in no wise markedly different, so far as general shape and girth of head were concerned, from the youth who achieved her scholastic honors. Goring did not stop, however, with comparisons with University students. He compared his convicts also with the inmates of a general hospital. Here the contrast lay, not between prisoners and those apt to be the most distantly removed from them in education, intelligence, and physique, but between prisoners and a class not much higher than that from which prison- ers are mainly drawn. The result, nevertheless, was much the same: no dififerentation in head-shape, and only a slight difference in absolute measurements of the head. It was the hospital inmates, moreover, who showed the smaller dimensions in this instance. Gor- ing explained this as due to the "shrinkage" of bone and tissue that illness and defective nourishment are likely to produce. His conclusion was, therefore, that CRIMINAL ANTHROPOLOGY 253 the hospital patients, and not the criminals, constituted a class "physically differentiated" from the general community, if the existence of such a class was indi- cated by the comparisons. These studies dealt with length, breadth and circum- ference of head. Another set of cephalic characters had been largely dwelt upon by the Lombrosoan school, namely height, width and slope of forehead, the pro- jection and slope of the occiput, the relative magnitude of front to back of head, and the general shape and symmetry of the head. These, indeed, are the charac- ters which, in extreme form, have been called "cephalic anomalies" and which produce those low, narrow, re- ceding foreheads, "dome-shaped" heads, "sugar loaf" heads and heads with bulging protuberances that have so often been emphasized as peculiarly characteristic of criminals. Lombroso had even gone so far as to say that he could pick people out of the general popu- lation as being either criminal or non-criminal by their possession of these attributes. Goring compared his prisoners with a group of non- commissioned officers and men of the Royal Engineers (sailors) in order to test the theories of the Lombro- soan school with respect to these characteristics. Various measurements and data were recorded. With the aid of Pearson a method was devised for taking the statistical records of these features, for arriving at the mean contours of the two groups from three angles representing the top, back and profile views, and for superimposing the contours of one group upon those of the other. No "anomalies" were found. The contours practically coincided. The Royal Engineers 254 PUNISHMENT AND REFORMATION were no more and no less "bulged" as to the forehead or protruding as to the occiput than the prisoners. Once more, therefore, Goring concluded that physical stigmata were a myth. Goring announced his conclusion in one highly quo- table sentence. After comparing the Cambridge and Oxford students not only with prisoners but with each other, and introducing a third University, Aberdeen, he declared that "prison inmates, as a whole, approxi- mate closer in head-measurements to the Universities generally, than do students of different Universities conform with each other in this regard." Also, with respect to Lombroso's contention that criminals were "predestined" to do evil and that their future could be predicted with relative certainty, he said that "from a knowledge only of an undergraduate's cephalic meas- urements, a better judgment could be given as to whether he were studying at an English or Scottish University than a prediction could be made as to whether he would eventually become a University pro- fessor or a convicted felon !" Criminal anthropologists have not relied solely upon measurements of the head. Color of the hair and eyes, shape of the nose, defective hearing, left-handedness — these and other characteristics are said to mark criminals from the rest of mankind. Accordingly, Goring gathering data about them and compared his prisoners with groups from the non-criminal com- munity for whom similar facts existed. One of the most striking results was that revealed by a compari- son between the hair and eye color of convicts and of a group of English school boys. Here is the record: OLOGY CRIMINAL ANTHROPOLOG 255 Eyes Per Cent Hair Per Cent. Groups Compared Light Medium and Dark Red Blonde Light Brown or Fair Dark Brown and Black, or Medium and Dark English Convicts English School -boys. . . 35.1 38.4 64.9 61.4 3.4 3.7 2.5 ? 29.5 35.0 65.5 61.3 It will be seen at once that the school boys showed only a very slightly lighter shade, in regard both to hair and eyes, than did the convicts. When it is re- membered that hair and eyes tend to become darker during the passage to adult life, the significance of this result is apparent. Similar unimportant differences were found with respect to conformation of nose and left-handedness. So far, the studies mentioned here have dealt only with comparisons between criminals and the general population. They shed no light on possible differences between one group of criminals and another. It might still remain true, for example, that thieves possess physical characteristics setting them off as a class from forgers, assailants from burglars, incendiaries from wife-deserters, persons convicted of damage to prop- erty from those convicted of damage to persons, etc. Goring tested this possibility also. He selected thirty- seven different physical characteristics, classified his prisoners on the basis of the crimes they had com- mitted, and then compared the different groups of criminals on the basis of each characteristic. 256 PUNISHMENT AND REFORMATION . No evidence was found to indicate that one kind of criminal bears any such striking differences from an- other as to make it an anthropological variety. The in- vestigation did reveal small differences in head-length, shade of hair, complexion and one or two other char- acteristics, marking particularly the groups of fraudu- lent offenders and incendiaries. It is impossible here to go fully into the discussion of these differences, but it is enough to say that Goring was fairly able to explain them as due to natural causes. Fraudulent offenders, for example, he said, are drawn for the most part from "the upper middle and middle classes," in- cendiaries from the opposite end of the social scale. Since "class" differentiation is a widely accepted fact, and silice his own data furnished evidence that such differentiation exists even between different types of criminals, he concluded that the differences he had found between criminals as a whole and fraudulent offenders and incendiaries as groups, were far more likely to be due to class distinctions than to crime. Nutritional and environmental circumstances also, he thought, might be contributory causes to these differ- ences. Brief as this resume is, it gives sortie notion of the nature of Goring's data concerning an anthropological type. The reader should not infer that he found no differences distinguishing criminals, either from the general population or from each other. What he did not find were definite physical anomalies or stigmata, such as would necessarily constitute a physical type. What he did find were certain very general physical traits distinguishing criminals. These he described CRIMINAL ANTHROPOLOGY 257 as an inferiority in stature and body zveiglit and summed them up as follows: "All English criminals, with the exception of those techni- cally convicted of fraud, are markedly differentiated from the general population in stature and body weight; in addition, offenders convicted of violence to the person are characterized by an average degree of strength and of constitutional sound- ness considerably above the average of other criminals, and of the law-abiding community ; ^ finally, thieves and burglars (who constitute, it must be borne in mind, 90 per cent' of all criminals), and also incendiaries, as well as being inferior in stature and •weight, are also, relatively to other criminals and the population at large, puny in their general bodily habit." What does this inferiority in stature and body weight mean? It is the same that von Kleinsmid^ found among 5,680 inmates of the Indiana Reformatory, which led him to draw the conclusion that "these men are physically inferior to the average young man not in prison and presumably normal." Goring inter- preted the inferiority as due in the main to a process of selection. Physique, he said, plays an important part in the choice of many occupations; why not in crime also? Soldiers and policemen, for example, must be strong, while clerks and others who follow sedentary occupations need not be. It is easy to im- agine. Goring thought, that deficiency of physical stamina may account for the entrance of many persons upon criminal careers. Moreover, since only about 59,000 persons were arrested for 91,000 indictable lA stout, strong, healthy, thick-set individual, if anything rather below the average stature of his class : this, said Goring, is the typical portrait of a person prone to commit criminal violence. 2Rufus Bernhard von Kleinsmid: Preliminary Report, De- partment of Research, Indiana Reformatory, Jeffersonville, 1914. 258 PUNISHMENT AND REFORMATION offences reported to the police in England and Wales in 1906, some selection evidently takes place among those caught, and feebleness may be regarded as a factor more conducive to apprehension than strength. Again, tall and well-built persons, though perhaps equally inclined with others to become pickpockets and burglars, are not as likely to choose these callings in the long run as persons of a more unnoticeable ap- pearance. So with incendiaries; individuals convicted of this offence in England, said Goring, are for the most part farm laborers who, smarting under real or imaginary grievances, fire the stacks of their masters — the "typical revengeful act of a weakling, from whom a physical assault would be ineffective." Finally, there are the fraudulent offenders, persons who have committed crime from motives of material benefit, upon whom it is difficult to understand how physique could exert any selective influence. And it is precisely these offenders whom we find in Goring's study un- selected by either stature or body weight — ^their "mean stature and weight being the same as those of the same social and economic classes in the general non- criminal community." How, then, does the matter stand? Thus: there is no criminal anthropological type; physical stigmata of crime do not exist ; criminals are not differentiated either from the non-criminal population or among themselves by particular attributes. They do, how- ever, constitute a class inferior in respect to stature and body weight. Goring put it in this wise: — "In the present investigation we have exhaustively compared, with regard to many physical characters, different kinds of crim- CRIMINAL ANTHROPOLOGY 259 inals with each other, and criminals, as a class, with the law- abiding public. From these comparisons, ncr evidence has emerged confirming the existence of a physical criminal type, such as Lombroso and his disciples have described. Our data do show that physical diflferences exist between different kinds of crim- inals : precisely as they exist between different kinds of law- abiding people. But, when allowance is made for a certain range of probable variation, and when they are reduced to a common standard of age, stature, intelligence and class, etc., these differences tend entirely to disappear. Our results nowhere confirm the evidence, nor justify the allegations, of criminal anthropologists. They challenge their evidence at almost every point. In fact, both with regard to measurements and the presence of physical anomalies in criminals, our statistics present a startling conformity with similar statistics of the law-abiding classes. The final conclusion we are bound to accept until fur- ther evidence, in the train of long series of statistics, may compel us to reject or to modify an apparent certainty — our inevitable conclusion must be that there is no such thing as a physical criminal type." To this statement of his conclusions Goring added expressions of severe condemnation for the methods and ideas by which Lombroso and his followers had so long held the center of the criminological stage. The Lombrosian theory he called a "superstition." It it "kith and kin with the misnamed 'sciences' of phrenology, chiromancy, and physiognomy." Behind Lombroso's notion, he said, "there were positively no facts at all. He had been studying the cadavers and living persons of criminals for months, when, suddenly, at the sight of certain anomalies in the skull of one particular brigand, revelation flashed through the surrounding gloom: the hypothesis was framed. We contend that a notion arrived at in these romantic and emotional conditions could not legitimately be employed as a working hypothesis for directing a disinterested investigation; we maintain that the whole of Lombroso's enterprise was conducted, we do riot say with the 260 PUNISHMENT AND REFORMATION express purpose, but with the unconscious intention, of stamping a preconceived idea with the hall mark of science." And again : "Nor were the adventures of Lombroso confined within prison walls. On one occasion, he pointed out, as an example of the criminal type, a youth who had never appeared in a court of justice; 'he may not be a legal criminal,' was the airy utterance, 'but he is a criminal anthropologically.' At pause before the skull of Gasparonne, a famous nineteenth century brigand, the seeker found many of the stigmata common to the skulls of ordinary prison inmates. Thus, he tells us, there was, in the unfortunate Gasparonne, a wormian bone; microcephaly of the frontal region, erignathism, oxycephaly, dolico-cephaly, and en- larged orbital capacity, were also implacably present. Charlotte Corday's skull inspires this eloquence: 'Not even the purest political crime, that which springs from passion, is exempt from the law which we have laid down.' And, borne onward by the flood of enthusiasm, our intrepid explorer sets foot at last upon the shores of antiquity. Confronting the effigy of Messalina, he sees in triumph the unmistakable criminal stamp — the heavy jaw, the low forehead, the wavy hair; he recognizes them all! ... Perhaps, however, he is at his best, his happiest, in contemplation before the old woman of Palermo, who poisoned so many people with arseniated vinegar. 'The bust,' writes Lombroso, 'which we possess of this criminal, so full of virile angularity, and, above all, so deeply wrinkled, with its Satanic leer, suffices of itself to prove that the woman in question was born to do evil, and that, if one occasion to commit it had failed, she would have found others.' " Whatever we may think of this asperity, we must admit that he who uttered it has effectually laid, for the present at least, the views upon which it is heaped. In concluding this chapter, we must consider some of the criticisms that have been made of Goring's inquiry. In a preface to Goring's work, Sir Evelyn Ruggles- Brise calls it "the first attempt that has been made ia CRIMINAL ANTHROPOLOGY 261 this, or in any other country, to arrive at results in criminology by the statistical treatment of facts." The very circumstance that the statistical method did un- derlie the whole inquiry has been made a point of objection to it. This method, it is said, with its com- plex, involute and rigid means of passing judgment upon objective facts, is wholly, .adequate to discover truth in regard to the causes of crime. This criticism is sound in so far as it applies to the more subjective or personal causes of crime, those having to do, for example, with psychological factors, but it is difficult to see how it applies to the matter in hand. How can the existence or non-existence of physical stigmata be proved or disproved except by the exact measurement of human beings and the careful correlation of the data recorded? The whole quarrel with the Indian school is that it did not use sufficiently exact methods of calculation ; to object to the opponents of the Lom- brosians that they have used these methods seems hardly a logical procedure. The statistical method has its limitations, but it is not one of those limitations to deal with measurable quantities. Criticism has also been directed against the inquiry on the ground that it failed to furnish adequate com- parison with the normal population. An ideal inquiry might perhaps have gone further, but when we com- pare Goring's data with those of his predecessors we are compelled to admit that his disproof is at least stronger than their proof. Another criticism is that the legal conception of the criminal adopted by Goring is too narrow, since "criminals" include many more than just those persons who are caught and sent to 262 PUNISHMENT AND REFORMATION English prisons. Instead of being a weakness, this may be a strength, for the individuals studied were recidivists and if an anthropological type exists, we should expect to find it among those who most often get into jail. Undoubtedly, however, when Goring left the field of measurable physical characters and entered that of mental attributes and the forces of environment, he stepped onto slippery ground. Neither his methods nor the range of his observations were calculated to discover truth here. He had no definite standards for measuring mental ability (the Binet-Simon tests were translated into English the very year that Goring stopped gathering data), and while his general con- clusion, namely, that defective intelligence is one of the vital causes of crime, is in line with present opinion, his own material on this head was not scientifically gathered. Moreover, there is nothing to indicate that he was aware of the many totally different kinds of mental disease that may cause anti-social conduct. His elimination of the "force of circumstances" as having little or no causal relation to crime may be set down as valueless, first, because he did not conduct an inten- sive study of individuals, and, second, because the very element that gave strength to his inquiry in re- gard to a physical type — the fact that he was dealing with recidivists — weakened his study of environment, since persons who commit crime repeatedly are much less likely to have been brought to that strait by external circumstances than those who commit it once in a life-time. To leave Goring's inquiry with these remarks, how- CRIMINAL ANTHROPOLOGY 263 ever, would be to fail to point out the essential differ- ence between his attitude and approach toward the criminal, and the attitude fend approach that seem most hopeful to-day of accomplishing beneficial results. Doubtless Goring's insistence upon accurate and care- ful study is an improvement over the methods of the criminal sociologist, who has been wont to enumerate all manner of chance conditions associated with crimi- nality and to call these causes of crime. Goring is all for careful, accurate, scientific work. Nevertheless, he does not help us to see that the true method of dealing with the man who has broken society's laws is to discover what has made that particular man a criminal and then to strive to remove the particular cause. He does not deny this, but he does not help to affirm it. He would too loosely substitute one set of general causes for another set, without making us see that no set of general causes is sufficient. The aim of applied criminology is two-fold: first, to dis- cover the specific causes of crime in an individual; second, to base treatment upon everything about the individual that may have a bearing upon reformation — ^his mental nature, his heredity, his growth from infancy up, his associations and environment, his physical well-being. The cause may be epilepsy, in- sanity, constitutional mental inferiority, inordinate sex impulses, or any one of many similar or different factors. The remedy may be permanent custodial care, dissolution of a mental complex, a regulated emotional life, or a period of bracing existence in the open air. The thing to remember is that categories of crime and general theories concerning criminals 264 PUNISHMENT AND REFORMATION crumble and fall away when one faces the particular man or woman convicted of a criminal act. Goring does not contribute to this discovery ; his methods are not the methods to reveal it. What those methods are we must now consider. CHAPTER XII THE STUDY OF THE INDIVIDUAL DELINQUENT I. Diagnosis No one would attempt to-day to make a sick man well without knowing what was the matter with him. We have passed out of the dark age of medical prac- tice when physicians regarded all disease as of one kind and, acquainted with only a few remedies, ap- plied these in turn until the patient either recovered or died. We know to-day that disease is of many kinds, and that exact knowledge of the specific ailment from which an individual is suffering is not only ob- tainable but necessary. We are interested in the pre- cise nature of a man's ill health, and we study every part and phase of him in order to learn. We test his organs, we examine his tissues, we take samples of his blood and sputum, we consider the part played by fatigue and nutrition, we enter his very body through the X-ray. All this we do before thought of treat- ment, for modern treatment presupposes exact knowl- edge of the nature of disease. A physician who should simply say of every patient who came to him that the patient was sick, and should send him and all others to a hospital without further attention to the nature or causes of his sickness, would soon be ostracized professionally. This process of discovering the exact disease from 265 266 PUNISHMENT AND REFORMATION which an individual is suffering is called diagnosis. Diagnosis is not the only prerequisite to treatment, however. Having discovered the nature of the dis- ease, one must know what caused it. To know that a patient is the victim of typhoid is not enough. One must know that typhoid is caused by a bacillus and he must know how this bacillus lives and what will kill it. Often he must know, also, the indirect or predisposing causes of the disease. If a condition of anaemia or fatigue is favorable to typhoid, that fact must be known and reckoned with. In other words, the com- plexity of causation must be considered. Treatment must proceed upon two bases: It must recognize the necessity of individual diagnosis to discover the spe- cific disease being dealt with, and it must recognize the necessity of a knowledge of causes before effective cure can be applied. These statements are platitudes in regard to disease. They are novel in regard to crime. There is a close analogy between the method to be pursued in curing a man of disease and that to be pursued in checking his criminal tendencies. In each instance the method is diagnosis of the individual, the discovery of the special cause or causes of his malady, and then pre- scription of the measures best calculated to effect cure. This does not mean that there is any similarity be- tween disease and crime per se. The analogy lies be- tween the scientific method of approach or attack upon the two things, not between the things themselves. Diagnosis and etiology (study of causes) can be ap- plied to the law-breaker no less directly than to the sick man; it is only because we have not understood STUDY OF INDIVIDUAL DELINQUENT 267 the nature of many criminals and criminal acts that we have not heretofore adopted them more generally. We are coming to do so to-day, however. Diag- nosis of individual offenders is an established part of the work of a few courts and an increasing number of correctional institutions. The method is still in its infancy, and even in those places where it is being tried not all offenders, usually, receive study. More- over, standards of procedure and thoroughness vary greatly. In general, juvenile courts and reformatories have been the first to perceive the advantages of diag- nosis, though several prisons have recently established clinics for such study, as well as one or two criminal courts for adults. The county jail of Hudson County, N. J., has attempted diagnosis on a small scale. Private foundations in a number of cities have aided courts in this research, and some private institutions for de- linquents, such as Waverly House in New York City, have adopted the method in their work. As a result of this effort, a new profession has come into existence. It is that of the clinical or diagnosing criminologist. The leaders in the profession are for the most part specialists in psychiatry, with special knowledge also of psychology and medicine. They are peculiarly prepared, therefore, to study offenders on both the mental and physical sides. The most pro- ficient among them are well versed also in the effects and causes of heredity and social adjustment. To do the most effective work, they must be scientifically in- clined, capable of pushing investigation back to its ultimate sources. An acquaintance with educational methods and possibilities is obviously of importance in 268 PUNISHMENT AND REFORMATION the prognostic and therapeutic aspects of their work. The American Association of Qinical Criminologists, formed in 1913, is largely made up of members of this profession. These advocates of a new criminology have not as yet won the attention of the general public. Their findings are only slowly seeping through to the popu- lar mind. For the most part their discussions find light at scientific gatherings or in scientific periodicals. Judges, prison wardens, probation officers and others who have to do with the treatment of the criminal do not, except in rare instances, recognize the importance of their contributions; social workers are only begin- ning to do so. Even when it is conceded that the science of human behavior may throw some light on the nature and causes of crime, it is not always ad- mitted that each individual requires study. Penology, except for the play of humanitarian impulses, which are not always wisely directed, is still groping in its dark age. Only a moment's reflection is necessary to convince the reader of the preceding chapters that this is true. Penology has remained for the most part a theory. It has concerned itself too much with general cate- gories of criminals and general statements concerning the causes of crime. It has looked, first, at symptoms and has classified men as thieves, murderers, incen- diaries, etc., because these words describe the final act by which the criminal reveals himself. It has tried to discover general reasons for the breaking of society's laws, and having found these in ignorance, alcoholism, poverty, insanity, violent temper and the STUDY OF INDIVIDUAL DELINQUENT 269 like, has made little effort to trace the operation of these causes in the individual or to discover other and less obvious causes of crime. Its conclusions have been promulgated from the arm chair and it has made slight attempt to "go to the criminal for the facts"; where it has tried to do this, its methods have been impressionistic and based on loose observation. Mean- while, it has prescribed treatment for criminals en masse. It has assumed that a uniform regimen — usu- ally confinement in some odious, high-walled prison — would overcome the evil tendencies of all law-break- ers, in so far as these were possible to be overcome. It has attempted a universal specific — incarceration: and incarceration under conditions varying little and based on the uniform possession by prisoners of nor- mal or nearly normal faculties. Even where it has, in recent years, attempted a change from the rigors of prison confinement and, by means of probation, sought a more hopeful way of achieving its ends, it has for the most part been guilty of just as indis- criminate an application of its new remedy as of its old. It has known almost nothing of diagnosis or of the individual's capacities and needs. It has regarded criminals as the chance or inevitable products of forces that did not heed to be determined, either to protect society or to cure criminals of their lawless ways. The criminal has not, of course, been altogether lost sight of as an individual. Trial in court is itself a species of individualization, though its purpose has hstorically been merely to settle the single question of guilt, and the criminal has quickly merged with the general mass — either of his fellow convicts or of 270 PUNISHMENT AND REFORMATION society — when the trial was over. One class of irre- sponsible law-breakers, it is true, has long been recog- nized — the so-called "criminal insane"; but even here what might have been a promising beginning in the individualization of the criminal was vitiated by the methods pursued in determining insanity — leaving the matter for the jury to decide, and aiding it only by the answers of "specialists" to cleverly worded hypo- thetical questions — and also by the inadequate treat- ment usually accorded those who were held to be insane. Modern humanitarian movements, beginning with Beccari^ and John Howard, have tended to force attention more and more upon the individual, while Lombroso, as .we have seen, gave a pseudo-scientific prominence to him. More recently the use of the indeterminate sentence has both contributed to and resulted from the realiza- tion that criminals differ from each other in important respects and that different modes of treatment are necessary to secure reformative results. Finally, inten- sive studies of individuals begun some two decades ago and carried on by only a few students, notably in Germany, suggested the possible complexities of crimi- nal causation and paved the way for the systematic work that has since been carried on. For the real beginning of the new science of crimi- nal diagnosis, however, we must look to the Juvenile Psychopathic Institute in Chicago, organized in 1909 in connection with the Juvenile Court of Cook County with Dr. William Healy as director. This was a private organization, established for the express pur- pose of securing practical and intensive studies of STUDY OF INDIVIDUAL DELINQUENT 271 young oflfenders. Funds for a five-year program were supplied and a notable group of jurists, psychologists and others acted as an advisory council. From the first the institute chose repeated offenders for study because, by reason of their numbers and the seriousness of their offences, these were believed to have the "greatest significance for society." It chose juvenile offenders partly because prime causative fac- tors stand out more clearly in youth than they do later on, partly because data concerning traits, early characteristics and environment are more easily ob- tainable then, and partly because "the best results of therapeutic efforts are from working with youth." Since most confirmed criminals begin their delinquent careers in childhood or early youth, it was believed that the inquiry would have a direct value for the study of all offenders. Dr. Healy tells us that it had repeatedly been thrust upon his attention that, there was "astonishingly little in the literature of criminology which is directly help- ful to those who have to deal practically with offend- ers." Of "general theory" there was "no lack," but when one came to "that study of the individual which leads to clear understanding and scientific treatment," there was "almost no guidance." It was for these reasons that he decided to "go to the criminal for the facts." Divesting himself, as far as possible, of all presuppositions, he set out to gather every shred of trustworthy information about each offender that could possibly be expected to have a bearing upon that offender's delinquency. At the end of five years the work had proved so valuable and the success of the 272 PUNISHMENT AND REFORMATION undertaking was so well established that the county took over the institute and made it a department of the Juvenile Court, supported from the public treasury. The results of the work are summarized in Dr. Healy's epoch-making volume, "The Individual Delin- quent," published in 1915.^ There 1,000 repeated offenders are dealt with, clustering around the ages of fifteen and sixteen years. Dr. Healy not only sets forth the methods of diagnosis that were worked out and used in the institute, but analyzes the causes and types of criminality that were found as a result of the study, and offers isolated suggestions for treatment. Case histories are given in abundance. Much of the classification of offenders is tentative and the methods of research need not be regarded as the best that will be ultimately devised. This is not only admitted by Healy but is put forth as one of the major conclusions of his work. "Neither we," he says, "nor other investi- gators can make such a contribution to the principles of our science as shall ever do away with the necessity for (a) careful personal study of each offender, and (b) testing the value of measures carried out, always by the criteria of future results." ^ Following the establishment of this institute, other courts and institutions began to make studies of in- dividual offenders. A visit to the institute by Judge A. W. Frater, judge of the Juvenile Court of Seattle, resulted in the employment by that court in 1911 of Dr. Lilburn Merrill in the double capacity of chief x/ i"The Individual Delinquent," by William Healy, A.B., M.D.; published by Little, Brown & Company, Boston, Mass. ^IMd., p. 19. STUDY OF INDIVIDUAL DELINQUENT 273 probation officer and diagnostician. The municipal court of Boston under Judge Wilfred Bolster was the next to take up the matter. Dr. V. V. Anderson being placed in charge of diagnosis. Since then the idea has spread with comparative rapidity. Juvenile courts in San Francisco, Savannah, Boston, Detroit, St. Louis, New York City, Providence, Memphis, and other cities have established some measure of diagnostic work, and institutions for confinement have followed suit. A partial list of clinics for such study will be found in the Appendix. What is the diagnosis that ought to precede treat- ment of every delinquent? What facts ought it to include ? No better short answer to this can be given than to say that it ought to include every fact that can possibly have a bearing upon conduct. Interpreted in the light of our present knowledge of human be- havior, however, this answer would leave no limits to inquiry; there is nothing in the whole realm of the individual's experience that can safely be disregarded, as unaffecting conduct. We must, therefore, call to our aid the knowledge that has been revealed by pre- vious inquiry concerning the causes of anti-social con- duct, and, while always remaining on the lookout for new and unsuspected factors, devote particular atten- tion to those phases of experience that the past has shown to yield most fruitful results. Two general principles may be enunciated. First, each individual is to be regarded as not only a product but a process. At any given moment, he may be looked upon as "the sum of all of his present constituent parts," and a cross section view of those parts may be taken; he is 274 PUNISHMENT AND REFORMATION also to be looked upon, for purposes of criminological inquiry, as the result of a long-continued process of growth, of "conditions and forces which have been forming him from the earliest moment of unicellular life." These conditions must be open to view before causative factors can be announced with assurance. The second principle is that not only the debit but the credit side of the individual's make-up must be ascertained. The future as well as the past is of interest to the criminologist, for the object of his endeavors is to improve the person under his care. He must, therefore, if possible, discover whatever desirable qualities the individual may possess, for the cultivation of these may aid in the task of improve- ment. Many a delinquent has been saved by the dis- covery of some special aptitude, some undeveloped talent, some unfulfilled and creditable desire or ambi- tion. These things are occasionally active causes of wrongdoing, and to put the individual in the way of attaining or fulfilling them is not infrequently the key to successful therapy. No one has improved upon the detailed statement of facts to be sought by diagnosis that Healy drew up as a result of his experience at the Juvenile Psycho- pathic Institute. Even this represents an ideal, one that Healy and his associates found far from attain- able. Nevertheless, some ideal is desirable, and the closer one approximates to that ideal in practice the better is the chance of making a helpful diagnosis. The desirable facts are classified by Healy under the following eight headings: family history — especially all aspects of heredity ; developmental history — includ- STUDY OF INDIVIDUAL DELINQUENT 275 ing antenatal conditions; environment; mental and moral development; anthropometry — including pho- tography; medical examination — particularly from a neurologic and psychiatric standpoint; psychological examination — (a) mental testing, (b) psychological analysis; and finally, delinquency.^ For the sake of clearness, a little further detail concerning each of these must be indicated. Under family history, important facts are those that have to do with the race, marital conditions and work history of the offender's parents; the number of births in the family, with an account of miscarriages and causes of any deaths in infancy; the parents' habits in regard to the use of drugs, alcohol and tobacco. Specific defects or diseases of the father and mother, particularly such as may have debilitated the germ plasm or afifected the embryo, and including heredi- tary diseases, should be. noted. Mental aberrations, defects and peculiarities on the part of the forebears are important, as well as mental and physical defects and characteristics of brothers and sisters and ances- tral side-lines. Any court or institutional record in the family should be ascertained. Developmental history includes such facts as a full account of the growth, constitution and early habits of the offender during infancy and childhood. Did he suffer injury through an accident to the mother during pregnancy? What were the antenatal condi- tions of health, hygiene and occupation of mother during pregnancy? Were there nutritional disturb- 1 For a full statement of the facts to be sought under each of these headings the reader is referred to Healy's complete j schedule, pp. S3-6S of "The Individual Delmquent. 276 PUNISHMENT AND REFORMATION ances or convulsions in infancy? At what age did the offender creep, walk, run, teeth, talk, go to school ? Did he develop any adolescent instabilities or pecu- liarities, either mental or physical? Did he suffer from somnambulism, night terrors and the like? These are some of the questions to be answered. The story of environment covers family control and other obvious factors in the outside world. The fourth heading, mental and moral development, has to do with more subtle matters, such as school history in detail, associations with the opposite sex, develop- ment of special talents, general behavior, and any ob- servable mental traits. Anthropometry, the measuring of anthropological characteristics, has not proved as helpful, Healy points out, as its advocates had hoped. Nevertheless, certain facts are to be especially noted: time of appearance of menstruation and of hair on the pubes and on the face; time and degree of development of the breasts; time and peculiarity of eruption of the various teeth; and studies of the growth curves of height and weight. Any evidence of degeneracy is also, of course, highly important. The medical examination includes everything that can throw light on the physical functioning and peculi- arities of the offender. Special attention should be paid to convulsions, epilepsy, petit mal, sexual habits and diseases, alcoholism, excess of tobacco, drug tak- ing and sleep. Even mental factors can be here discovered — such as attention, memory, judgment, physical and mental control, association processes, etc. STUDY OF INDIVIDUAL DELINQUENT 277 There should be an examination of cranial nerves, of sensory and motor reactions, and of reflexes. A more minute discovery of mental elements can be arrived at through the psychological inquiry. The records of psychological tests should for the most part be made at the moment of testing.^ Not only the actual records of the tests, but the observer's general impressions of the subject's behavior are im- portant. But the psychological examination includes more than tests. Hidden mental worries and con- flicts, recurrent imageries and mental attitudes, half- forgotten mental experiences, many of which under- lie misconduct, may be studied! Here lies a promising field for investigation. The final division of facts to be included in diag- nosis comprises those having to do with the offender's delinquent career, if he has one. This should include a description of each anti-social act, the cause of de- linquency in the opinion of relatives and friends, and the attitude of the offender toward court, probation officer and institution. When collected, many of these facts will obviously have no bearing on the delinquent behavior. The in- quiry should be followed, therefore, by a diagnostic and prognostic summary, the purpose of which is to select those facts that do have a bearing upon that behavior. In the light of their significance the out- look under various environmental conditions may be expected to become plain. According to Healy, the diagnostic and prognostic lA word in regard to the use and interpretation of tests will be given later. 278 PUNISHMENT AND REFORMATION summary should proceed in some such way as this: "Here is the individual with (1) such-and-such physical characteristics, and (2) such-and-such mental abilities and mental traits, who (3) committed such- and-such types of delinquent acts. There are (4) in the background such-and-such conditions of defective heredity, pathological development, injuries, early teachings of immoral conduct, bad personal habits, lack of educational opportunity, or what not. In the light (5) of his being what he is physically and mentally and having this background, we can offer, on the basis of known predictabilities, such-and-such a prognosis if such-and-such treatment is afforded in such-and-such an environment. (Always to be in- cluded here are the old environment and other alterna- tives open.)" The scope and nature of the diagnostic inquiry have now been suggested. It must also be borne in mind that human beings are highly complex entities. The kind of information concerning them that can be discovered, and that when discovered is seen to have a bearing on conduct and the capacity for reform, is so constantly enlarging that no limits can be set to future diagnosis. Even the tools and technique of inquiry may be expected to improve, especially in the detection of psychological and mental factors. Never- theless, men must use the tools and knowledge they have. Such facts about the individual as can now be seen to be desirable can be set down. The range of these will undoubtedly widen from decade to dec- ade, especially with the growth of psychology and STUDY OF INDIVIDUAL DELINQUENT 279 the increase in our knowledge of human nature, but this is no bar to our following now a scheme of in- quiry that seems calculated to give the results we are seeking. A better understanding of the kind of study that results from this mode of inquiry, and of its helpful- ness, both in prescribing and administering treatment, will be gained from a typical history of a delinquent individual secured by this method. The following record is that of a recidivist at Sing Sing prison:^ "S. R., a nineteen-year-old Italian-American, was admitted to Sing Sing on a sentence of three years and five months after having confessed to burglary in the third degree. The boy is the issue of illiterate and primitive southern Italians, the parents having immigrated to the United States about thirty years ago. The father, whose occupation was that of porter and' bootblack, died several years ago of pulmonary tuberculosis. The mother, is still living, somewhat invalided from rheumatism. An' older brother, a confirmed criminal, has been in frequent conflict with the law, and is also a drug addict. Another brother suffers from chronic headaches, is quite impulsive and explosive in conduct, frequently changes places of occupation, and was arrested once on suspicion. Still another brother has the reputation of being unusually sullen in his general attitude. "The inmate grew up under very miserable home conditions and without any rational supervision. The family always lived in poor, cramped quarters, in the congested section of the lower East Side of New York. Usually the entire family of parents and eight children occupied two rooms, never more than three. The father's work as porter in a saloon kept him away from home from early morning until late at night, and he had very little opportunity to supervise the children. Home offered no attractions to the children, and from an early age they found unsupervised recreation on the streets of the lower East Side. The mother was attended by a midwife during confinement with inmate; labor normal. His infancy and childhood appears to ^ From "A Study of 608 Admissions to Sing Sing Prison," by Dr. Bernard Glueck, in Mental Hygiene for January, 1918. 280 PUNISHMENT AND REFORMATION have been uneventful. He entered school at the age of six and continued steadily until the age of eleven, when he had reached 5-B grade. For some time before this, however, relatives and neighbors began to notice certain changes in his character. He became disobedient, untruthful, dishonest and secretive. He was easily led by other boys, but his parents had absolutely no con- trol over him, especially since the age of eleven. At this time he became rebellious at school, truant, and finally had to be placed in the truant school. "Aside from this change in behavior at home and at school, the boy had been associating for some years before, in fact since the age of about seven, with a set of wild and anti-social boys in the neighborhood, and his record with the Society for the Prevention of Cruelty to Children dates from June, 1908, when he was but ten years of age, and when his first arrest for theft took place. He was committed to the Catholic Protectory, where he remained until May 12, 1911, when he was placed on trial with his mother. Several months later it was reported that the boy had given up old companions and that he remained at home most of the time, but was ungovernable, displaying bad temper when brought to task. He yelled at the top of his voice, "jumped up and down, and generally created such a disturbance as to have annoyed neighbors who threatened to move. The janitress as well as other tenants accused the boy of going to the roof and throwing stones down on tenants or anyone passing through the yard. The family was threatened with dispossession unless something were done with the boy. The boy was interviewed at this time by a parole officer from the Catholic Protectory and was told that if his misbehavior should lead to a recommitment to that institution, he would have to be kept until the age of twenty-one. He promised to do better, but did not impress the officer as lieing sincere. In October of the same year, however, the boy was arrested at the instigation of his father, who com- plained that the boy was wild and beyond control of the family; that he remained away from home most of the time, and was constantly getting into trouble. His school record at this time was very bad. The boy was placed on probation for about a month. Nothing definite of record happened until March 30, 1912, when he was recommitted to the Catholic Protectory for theft, running the streets and fighting. It is noted that his parents lived at this time in two filthy rooms, and could not manage the boy at all, who was already then beginning to terrorize the STUDY OF INDIVIDUAL DELINQUENT 281 household. At one time he stabbed his sister in the arm in a fit of rage, and since previous discharge from the Protectory had been arrested three times for theft. The institution physi- cian at that time said that the boy was suffering from trachoma. The boy was again allowed out on trial on July S, 1913, was given his working papers, and promised to obtain work and behave himself well. The father at this time had become a helpless invalid, and conditions at home were much more dis- tressing, but the boy apparently was but little impressed with the situation, resumed his former habits of a wild, ungovernable street life, and in September of the same year had to return to the Protectory again at the solicitation of parents and neigh- bors. In February, 1914, he was again released on trial from the Protectory, but after two weeks' steady work, resumed his former habits, began to steal more boldly and excessively, and in June of the same year was sentenced to the State Reformatory at Elmira for burglary. His industrial career up to this time was naturally very defective, irregular, and unproductive, since he had spent most of the time from the age of eleven at the Catholic Protectory. "It is highly significant that up to the time of his sentence to Elmira at the age of sixteen, no effort had been made to define in any rational or helpful manner the extremely serious problem which this youngster presented. While our field in- vestigator was able to obtain a fairly accurate record of his behavior at home and in his unsupervised street life, no helpful information concerning his difficulties and behavior at school and at the Protectory is at hand. It would seem that at school, at least, this difficult and troublesome boy should have led to a more intelligent attempt to understand the problem he presented than mere transfer to the truant school. It is only as a result of his contact with Elmira that we began to get evidence of an intelligent effort to understand this troublesome personality. Here he is described as a coarse type of Italian, native of New York, weight 122 pounds, 4 feet 2^^ inches tall, of poor mental capacity, poor susceptibility, and of poor physical condition. He lost ten of the fifteen months of his incarceration' there for misconduct involving disobedience of orders, assault, malicious disturbance and damaging state property. A moron with physi- cal stigmata whose extremely low mentality caused him to be placed in their special training class for mental defectives. 282 PUNISHMENT AND REFORMATION Finally his condition gave evidence of the gradual development of mental disorder, and on November S, 1915, he had to be trans- ferred to the Dannemora State Hospital for the criminal insane. The prognosis rendered at Elmira was, 'Outlook for improve- ment nil; absolutely no progress in school or labor; a turbulent, vicious degenerate, whose criminal character will probably cause continuous confinement in penal institutions.' "At Dannemora his behavior was better and he was discharged from that institution at the expiration of his sentence, December 6, 1916, as recovered. The diagnosis was, 'mentally deficient, paranoid trend.' Then, while the subsidence of the acuteness o£ the medical problem which this boy presented may well have justified the termination of his residence in a hospital for the insane, the woeful lack of appreciation of the serious social problem involved deserves note. Not that the authorities at Dannemora necessarily failed to estimate the gravity of the situ- ation, but {hat there is still lacking proper legal provision for a more indefinite detention of individuals like this. "Following his return from Dannemora, relatives noticed a change in his makeup — he was more changeable, seemed nervous, restless, irritable, and quick-tempered. He worked fairly stead- ily for about one month and a half, then resumed his former habits, and in addition began pugilistic activities, and earned part of his subsistence in this fashion. He resumed, however, his stealing propensities, and about three months after his re- lease from Dannemora was arrested for burglary and sentenced to Sing Sing for a period of three years and five months. His conduct at home during this time was unbearable. The father having died, the mother was quite helpless, and finally was obliged to leave home after a threat to kill her if she didn't supply him with money. "Our examination of the boy showed him to be rather un- der-sized and under-developed physically, of coarse features. He was extremely infantile in his makeup, rather contentious and pugnacious. He appeared to have no conception whatever con- cerning the seriousness of his past mode of life, and did not impress one in the least as having benefited to any extent from previous sojourns in correctional institutions. The boy appar- ently has, up to this time, acquired no well-defined meaning of life, has no insight whatever into his past difficulties, and does not entertain any idea with reference to his future that might STUDY OF INDIVIDUAL DELINQUENT 283 justify the assumption that he will improve in conduct. He entered into the examination rather freely, cooperated well, but gave distinct evidence of conscious deception as well as inability to give a correct' account of his past life. He was rather boastful in manner when talking of his past exploits, took the entire situation lightly, and seemed to be distinctly pleased with the fact that he was an inmate of the state prison. He insisted that he was innocent of the crime for which he was sentenced, but that he knew who did the crime, but, of course, would not think of telling the police who did it. He was quite well in- formed on current events and his general information was quite on a par with his educational advantages. He said that the Mississippi River divided the West from the East in this country, that Grant was a general commanding the Northern army during the Civil War, that the Spanish-American War was due to the sinking of the Maine, named the Great Lakes, states and capitals without difficulty, and according to an exam- ination by the Terman Revision of the Binet Scale, reached the psychological age of fifteen years and six months with an in- telligence quotient of .96. His vocabulary was about 9,000 words, and he readily performed the Binet Paper Cutting Test, and the Ingenuity Test under the XVHI series. It is extremely inter- esting to note that his psychometric examination threw so very little light on the inmate's personality, and that the ultimate estimation of his makeup had to depend upon a study of his past career and type of reactions to daily situations. On the other hand, he showed a distinctly emotional deterioration and indifference. Certainly he had no adequate conception of the meaning of his life up to the present and of the difficulty in which he had been, a deterioration which is probably a sequence of the psychotic episode which necessitated his transfer to Dan- nemora State Hospital." This is a relatively full account of a delinquent. After all of the facts have been gathered and the his- tory is well in mind, and after causal connections be- tween parts of the history and the delinquency have been established, the account can be much shortened for practical use in court, in the institution where the offender may be confined or by the probation officer. 284 PUNISHMENT AND REFORMATION Here are several good examples of such shortened accounts, taken from Healy's records:^ "John Doe. Age 16. No. 111. Sept. 26, 1908. Physically: very good general condition. Strong, active boy, slouchy type. Sex development, adult. Mentally, high-grade feebleminded — moron. Delinquencies consist in earlier truancy — was once in insti- tution on account of this ; general mean behavior earlier at home ; recent vicious sex assault upon a boy. Causative factors: (o) mentality as above. The boy has been in an institution for the feebleminded for a couple of years; (&) lack of family control. The father was rather an irrespon- sible character and the family has broken up; (c) proportionate sex over-development and (rf) alcohol. Up to the day of the assault this boy had been doing quite well at work, but he was given whiskey to drink and the offense quickly followed. (The causation of the mental defect was never satisfactorily obtained. The father was previously a drinking man, but now holds a good position. The mother is long since dead. She was said to have had some education.) The outlook is altogether bad in a community where he can get alcohol. He might do well on a farm where he was free from temptation to drink. He has succeeded industrially since leaving the school for the feebleminded over a year ago. Under the circumstances he should be returned." "Adele B. Age IS. No. 222. March 8, 1907. This girl is magnificently endowed physically. She is strong and well and has a considerable measure of good looks. She had an early puberty and is much over-developed in sex char- acteristics for her age. We note a rather mask-like expression, typical of some prostitutes. Mentally, this girl has distinctly good ability and has a very good range of interests. She belongs in our B class. Is rather a suggestible type. Considering her advantages she has read many good books. She has a distinctly refined attitude toward her delinquencies, as shown in her manner of relating them. Delinquencies: Excessive sex immorality since she was ten years old. She has already been once in a reformatory school. 1 "The Individual Delinquent," pp. 123-125. STUDY OF INDIVIDUAL DELINQUENT 285 Causative factors: (o) heredity. Father alcoholic. Mother immoral. Maternal uncle criminalistic; (6) mother's influence. She has been flagrantly immoral herself and has made light of this girl's transgressions, if she has not deliberately urged them ; (c) early maturity and magnificent physique. Prognosis: Notwithstanding this girl's bad background in heredity and environmental conditions, she shows certain qualities which speak in favor of her reformation. Her good mental ability and good interests, and her refined behavior are encour- aging. Her physical over-development at present rather speaks against her chances, but she may develop self-control. Her suggestibility may be used to her advantage. This is a case in which better environment under good personal influences may produce an entirely different result from that of the past. She is probably worth doing much for." "Mary Doe. Age 18. No. 333. Sept. 26, 1911. Physical: Very well developed and nourished. Pleasant fea- tures and expression. No sensory defects of importance. Ex- amination otherwise negative. Mental: Notwithstanding the fact that this girl never got beyond third grade, we find her to have quite fair mental ability. We were astonished to see her good performance on some tests. She has good mental control and is well oriented in all ways. She has much motor dexterity. Not the slightest evidence of aberrancy found, although her relatives saly she must be crazy to do what she has done. Mental diagnosis: good ability with exceedingly poor educational advantages. Delinquencies: Repeated stealing over a considerable period in department stores where she has been employed. At one time she was stealing by a system which she had evolved. Causative factors: (a) heredity. Parents are dead, but from other relatives we gain nothing but negative evidence. The whole family have good reputation; (6) developmental history. This, except for ordinary children's ailments, is negative; (c) en- vironmental conditions during childhood were not especially good on account of poverty which in turn was caused by much illness in the family. However, we do not know this has direct bearing; (d) much more important is the fact that the girl had exceedingly poor educational advantages on account of frequent changes of abode and being kept at home on account' of family 286 PUNISHMENT AND REFORMATION illness; from this has come (e) a dearth of healthy mental in- terests. The girl is a great reader, but only of the cheapest literature and the sensational daily newspapers; (/) probably the most important factor is due to mental conflict over sex affairs. She has had no guiding hand and ever since her child- hood has been hearing of these things from bad sources. Many of her occupational acquaintances tell her of the easy money they make in these ways and are able to indulge in dress and pleasures which are beyond her. Apparently she has always re- jected the advances which had naturally come to her as an attractive girl among immoral associates, but has thought much about it. (Note her own story.) As a definite reaction to this, she has got to stealing; (p) bad companions. The outlook we should consider distinctly good under dif- ferent environmental conditions and if some good woman will give her a helping hand. The mental mechanism back of her misconduct has been frequently observed by us, and the best of results have been obtained when constructive measures have been offered under probation. Change of occupation, friendship with some woman competent to become her confidant, adviser and helper, and development of healthy mental interests, we feel sure, will do what is needed." . To summarize what has been, said in this chapter, diagnosis is the discovery of those elements in the individual's constitution and history that bear upon his delinquency. It is nothing but a method. It has no value beyond the value of supplying information. With etiology, or the study of causes, it forms the scientific and common-sense approach to a rational and understanding criminology. Its aim is to estab- lish the connection between delinquency and facts or influences in the offender's life, past or present. To do this it must cover a wide range and make use of every resource known to the student of conduct; it must constantly avail itself of new discoveries in be- havioristic psychology and in the sciences of mental STUDY OF INDIVIDUAL DELINQUENT 287 life. Each offender must be separately and personally diagnosed, without regard to others who have com- mitted similar offences or who may be suspected of having become delinquent from the same causes ; fac- tors not appearing on the surface are often uncovered in the study of a given case. Finally, diagnosis and etiology supply a basis for prognosis and treatment and are valuable only in so far as they (a) lead to an improvefl method of handling the individual studied, or (b) add to the sum total of our information con- cerning the causes of crime. II. Mental Factors and Delinquency From the preceding discussion it should be clear that the immediate purpose of the modern scientific method in criminology is to discover, as accurately as possible, the causes of crime in the individual; upon this information to erect a basis of treatment. So recently has this method come into use and so few have been those who have applied it, that generalization in regard to causes has progressed but little. One reason for this is that the science of human behavior is only in its beginnings. We stand upon the threshold of a new era in our exploration of the springs of conduct and are only beginning to know what to look for ; we are still in the tool-making stage, devising means of getting facts, rather than actually getting them in any considerable numbers. For every fact that we posi- tively know in regard to the operation of the mind there are scores that we only suspect, and probably hundreds of whose existence we do not even dream. 288 PUNISHMENT AND REFORMATION There is a scientific objection, moreover, to proceed- ing too hastily with generalization. Long and patient inquiry, and a multiplying of cases, are necessary be- fore trustworthy classification can set in. If studies of offenders have taught one thing, it is that the cau- sation of crime in the individual is intricate and com- plex. Seldom can one say of a recidivist, for example, that this or that cause was the sole driving force that led him to his offence. A thief may be found to be slightly subnormal mentally, he may have come under the early influence of bad companions, he may have a physical defect that makes association with others painful, he may have been surrounded by a poor home environment and, in addition to all these, he may be the victim of over-developed sex impulses that stimu- late his desire for money with which to gratify them. To select any one of these factors as the prime cause of his delinquency is not only to run the risk of error, it is likely to lead to a harmful emphasis in treatment. The full, rounded view must be kept in mind. To take another case: an epileptic may have become an early victim of stimulants ; he may have suffered from poor eyesight that caused educational retardation so that he was later unable to get a good position; he may have acquired vagrant tendencies from irregular living conditions; and, particularly, his attacks may cause him to be undesirable in any but the lower grades of society. In diagnosing such a case it must be remem- bered that not all epileptics are criminals, and that to say that epilepsy was the cause of crime in this indi- vidual may be to lose sight of other equally important or at least contributing factors. STUDY OF INDIVIDUAL DELINQUENT 289 It is this complexity of causation in the individual that makes generalization difficult. Nevertheless, gen- eralization can be more readily undertaken in regard to causes of crime than in regard to offenders. To know that some one condition or circumstance has actually caused crime in any individual is, scientifically, suffi- cient evidence for denominating that condition or cir- cumstance a cause of crime, provided we do not push the statement farther. Thus, epilepsy, feebleminded- ness, insanity, abnormal sexualism, the use of narcot- ics, certain physical peculiarities, etc., may all be set down as causes of crime in the sense that they have been shown to be capable of causing crime if not offset by other and counteracting conditions. To go on from this statement, however, and to say that an offender in whom any one of these things is found is a criminal because of the presence of that factor is to take a step that is unjustified by logic and that may later prove to be not in accordance with fact. One further caution in regard to generalization is necessary. What use is to be made of it? If its effect be to dull the search for causative factors in the in- dividual, then it is to be deprecated, for no general set of causes can take the place of accurate knowledge of the offender. Of what importance is it to know that a certain percentage of crime is caused by mental defi- ciencies and aberrations, another percentage by faults in our judicial system, another by industrial malad- justments, etc., when the concrete issue, a particular individual who has committed a given offence, is be- fore us for treatment? Two important uses for classification exist, however. 290 PUNISHMENT AND REFORMATION One is the aid it can render in defining measures of prevention for the community at large, for only by knowing general causes of crime can society attack crime at its source. The other use is in framing sys- tem's of treatment. So long as segregation continues to be the necessary way of caring for many offenders, institutions will be required; and these institutions should be adapted to the classes that inhabit them. The mingling of chronic sufferers from mental disease with persons who have committed single offences from accidental causes is one instance of unwise segregation. To avoid this, and to devise a correlated system of institutions that will promote individual treatment to the utmost, classification is most important. One of the safest methods of classifying causative factors, in the present state of our knowledge, is to enumerate them in the order of frequency. This method was followed by Healy and his co-workers in Chicago; the various factors affecting the individual were first set down in rough chronological order, as they had apparently produced the career of the "offender, and were then evaluated so far as possible in regard to their importance. This was the basis of the following table: STUDY OF mniVIDUM. DELINQUENT 291 SUMMARY OF CAUSATIVE FACTORS BY GROUPS AND TOTALS IN 823 CASES : 560 MALES, 263 FEMALES 1 Number Number Total of times of times Number ~ . _ . _ appeared appeared of times Oroups of Causative Factors to be to be appeared main minor as factor factor factor Mental_ abnormalities and peculiarities. 455 135 590 Defective home conditions, including alcoholism 162 394 SS6 Mental conflict 58 IS 73 Improper sex experiences and habits. 46 146 192 Bad companions 44 235 279 Abnormal physical conditions, includ- ing excessive development 40 233 273 Defects of heredity 502 502 Defective or unsatisfied interests, in- cluding misuse or nonuse of special abilities 16 93 109 Defective early developmental con- ditions 214 214 Mental shock 3 3 Deliberate choice 1 ... 1 Sold by parent 1 ... 1 Use of stimulants or narcotics 92 92 Experiences under legal detention 15 IS Educational defects extreme 20 20 823 2,097 2,920 With these preliminary remarks, we may now turn to consider some of the results that have been achieved by the modern study of individual delinquents. Un- doubtedly, one of the most important of these has to do with the dominating part played by mental factors in the etiology of crime. This is a more significant statement than might appear at first sight, if one re- members the wide sway held in the past by social and biological theories of crime. Its implications for treat- ment are obviously manifold. Already, as we shall i"The Individual Delinquent," pp. 130-131. 292 PUNISHMENT AND REFORMATION see, it is leading to proposals for wholesale revision of our penal systems. Dogmatism in regard to so techni- cal a subject, and one so newly opened to investigation, is unsafe, yet certain conclusions stand out with strik- ing clearness. The table just quoted gives evidence of the part played by mental factors in causing crime among young people. Mental abnormalities and peculiarities there appear as main factors nearly three times as frequently as any other group. Still more tangible evidence is found in the high degree of correlation that exists between feeblemindedness and crime. Feebleminded- ness, as the term is used in this country, includes both imbecility and ' idiocy, but if we omit these, feeble- minded persons may be defined as those who are in- capable, because of mental defect existing from birth or from an early age, of competing on equal terms with their normal fellows or of managing themselves and their affairs with ordinary prudence.^ A feeble- minded person is, as Goddard puts it, a "potential criminal" ; this means that he lacks those safeguards of self-control and inhibition that enable normal people for the most part to choose their acts in a way to avoid legal retribution. Every once in a while the general public is startled by the published details of a revolting crime, a murder or other outrage. Perhaps a well-known man has been assassinated or a humble school teacher has been viciously attacked on her way home from school and ^ Based on the definition of the English Royal Commission on the Care and Control of the Feebleminded, which in turn was suggested by the Royal College of Physicians of London. STUDY OF INDIVIDUAL DELINQUENT 293 left dying by the roadside ^ or a boy in his 'teens has coaxed his companions into a lonely wood and there tortured them to death. ^ The affair is sensationally discussed in the press and the culprit is freely de- scribed as a "crime-monster" or "ghoul." An ener- getic reporter may interview the offender's acquaint- ances and learn that he has been regarded all his life as "queer" or as not quite "all there." The newspapers thereupon refer to him as a "half wit" or a "lunatic" and grow insistent in their demand for his punishment. Ultimately he is punished by death or life imprisonment, and the public, believing that it has got rid of an exceptionally dangerous character, heaves a sigh of relief and forgets all about the in- cident. If the public realized that it had been dealing with a person of feeble mentality, a person with the mind of a child and with a child's appreciation of the seri- ousness and consequences of its acts, it would perhaps take a different interest in the case. If it realized, further, that one in every five of the inmates of prisons and reformatories in this country is a person of just such feeble mentality, and is a potential per- petrator of precisely similar acts of violence, its inter- est would undergo a still more radical change. It would perhaps sense the inadequacy of mere punish- ment as a measure of prevention, and would realize that it is not necessary to wait until such an act has been committed before knowing the danger. One in five is a conservative estimate of the number of mental defectives among convicted offenders. The 1 These are instances of actual occurrence. 294 PUNISHMENT AND REFORMATION studies that have led to this conclusion are many and varied. Not all of them, to be sure, are to be accepted as trustworthy. The newness of methods of investiga- tion is in part responsible for this. Then, too, the personal equation among investigators must be allowed for, the expertness with which the investigations have been carried on, and the difference, usually slight, be- tween the standards of mental defectiveness applied. Sometimes so-called "borderline" cases have been classified on one side of the mental level, sometimes on another. Especially important in this connection is the fact that different institutions in which tests have been given have different characters of popula- tion, due in part to the neighborhoods from which they draw and in part to varying judgments as to who should be committed. In some institutions mental defectives have been largely weeded out by careful antecedent work in the courts ; in others first offenders preponderate; in others there is a disproportionate number of colored inmates, and in still others mental defectives have tended to congregate because of condi- tions affecting release. Finally, in States where proba- tion is on a high plane, the brighter and more hopeful cases are apt to escape being sent to the institutions, thus leaving only the mentally inert and dull to receive custodial care. Nevertheless, the evidence of feeblemindedness is overwhelming. One of the most recent and convinc- ing studies on this point is that by Dr. Glueck at Sing Sing, who found that of 608 adult prisoners out of an uninterrupted series of 683 cases admitted to that institution in a period of nine months, 28.1 per cent. STUDY OF INDIVIDUAL DELINQUENT 295 "possessed a degree of intelligence equivalent to that of the average American child of twelve years or under."^ Another trustworthy study was conducted by Williams and Terman at the Whittier State School for Boys in California, where, out of 215 cases tested, 32 per cent, were found to be feebleminded. At the Indiana Reformatory, at Jeffersonville, 11 per cent, out of 2,000 cases studied were feebleminded, and 20 per cent, "borderline." Numerous other studies have been made. The 1914 annual report of Elmira Reform- atory, New York, gives 42 as the percentage of feeble- minded inmates there. A study at the Illinois State School for Boys at St. Charles showed 20 per cent, mentally defective.^ At the New Jersey State Re- formatory at Rahway, according to the annual report for 1914, 47 per cent, of the young men there are men- tally defective. In estimating the value of these studies one must know, of course, the methods pursued in getting the facts, the care taken in making diagnoses, the percentage of all the inmates studied and the thoroughness with which each individual was tested. Impressionistic methods of observation are not re- liable; formal tests for discovering mental ability should at all times be insisted upon. For this reason, . many of the earlier studies made before the use of mental tests became general are of doubtful value. Instances are on record where as high as 80 and even 90 per cent, of the inmates of a penal institution have been called feebleminded; obviously the investigator i"A Study of 608 Admissions to Sing Sing Prison," by Dr. Bernard Glueck, published in Mental Hygiene for January, 1918. 2 Many cases of defective delinquents are weeded out at the Chicago Juvenile Court and Psychopathic Institute. 296 PUNISHMENT AND REFORMATION was here dealing with a highly selected group, or his methods were at fault. Perhaps the whole matter may be summed up in the following words of one careful student of the subject: "At least 25 per cent, of the inmates of our penal institutions are mentally defective and belong to either the feebleminded or to the defective delinquent class."^ The ratio of one in five has been adopted by the present writer as escaping any charge of over- statement and as at least unlikely to lead the general reader astray. Whatever the actual figures are, they are large enough. It must, of course, be remembered that the figures here quoted refer only to convicted offenders and not to offenders in general. It will always be true, doubtless, that the cleverest law-break- ers are the ones least likely to be caught, and that institutional populations contain, therefore, dispro- portionate percentages of feebleminded. This is par- ticularly notable in connection with the crime of prostitution. Studies of convicted prostitutes have shown especially high percentages of mental defectives. Fifty-one per cent, of 300 prostitutes chosen at random from three institutions in Massachusetts were found to be feebleminded,^ and 49 per cent, of 243 prosti- tutes studied at the Massachusetts Reformatory for ^ Dr. Walter E. Femald, superintendent of the Massachusetts School for the Feebleminded, Waverly, Mass., in a paper read at the Massachusetts State Conference of Charities, Oct. 23, 1912. 2 "Report of the Commission for the Investigation of the White Slave Traffic, So-called," February, 1914. House Docu- ment 2281, State of Massachusetts. The report of this commis- sion declared, with reference to the number rated as feeble- minded: "The mental defect of these women was so pronounced and evident as to warrant the legal commitment of each one as a feebleminded person or as a defective delinquent." STUDY OF INDIVIDUAL DELINQUENT 297 Women.^ These studies were carefully made and while there is no reason to doubt their validity for the populations investigated, it would be unscientific to apply the conclusions reached to prostitutes in the world at large.^ Mental defectiveness, however. Is only one of the abnormal mental traits that enter largely as causative factors into the commission of crime. There are others of a more elusive and subtle nature, in the de- tection and definition of which investigation has not yet put its foot on such sure ground. The study re- ferred to by Dr. Glueck did not deal alone with feeble- mindedness. Dr. Glueck found that of his 608 prison- ers 59 per cent, were "classifiable in terms of deviations from average normal mental health." These embraced all of the strange and indefinable psychopathies, aber- rations and insanities — the mental twists, deflections and contortions that make up the whole range and scope of mental abnormality. Dr. Glueck was able to break them up into three classes, as follows: "1. Of the 608 cases, 28.1 per cent, possessed a degree of intelligence equivalent to that of the average American child of twelve years or under. . . . "2. Of the 608 cases, 18.9 per cent, were constitu- tionally inferior, or psychopathic, to so pronounced a degree as to have rendered extremely difficult, if not impossible, adaptation to the ordinary requirements of life in modern society, . . . 1 "Mental and Physical Factors in Prostitution," by Edith R. Spaulding, M.D.; Proceedings of the National Conference of Charities and Correction, 1914. . ' , , , 2 For much of the information m this discussion of feeble- mindedness and crime the author is indebted to an unpublished manuscript by Alexander Johnson and Margaret Lane. 298 PUNISHMENT AND REFORMATION "3. Of the 608 cases, 12 per cent, were found to be suffering from distinct mental diseases or deteriora- tions, in a considerable number of whom the mental disease was directly or indirectly responsible for the anti-social activities."^ Because of the importance of this study, one of the best of an adult group yet made, we quote still further from Dr. Glueck's analysis. "That a finer differentiation of types will be possible when we come to a purely clinical presentation of the subject cannot be doubted, and in one instance, at least, we are almost certain to be able to add an additional group— the Epileptic Group. As a matter of fact, in the 608 cases studied, only two cases were classifiable as definitely suffering from epilepsy. Even in these two cases, the original mental defect was so prominent that we felt it advisable to include the two with the mentally defective. On the other hand, we have frequently felt, in studying a case, that we were dealing with a temperament or makeup which, if not definitely epileptic in character, certainly was very closely allied to the epileptic constitution. "Under the Intellectually Defective Group were placed all cases who had shown, as a result of a study of their life his- tories, a general incapacity to adjust themselves to the ordinary requirements of life, which incapacity appears to have been based largely, if not wholly, upon a general retardation in mental de- velopment, and which retardation was capable of definition by means of laboratory study. None of the cases included in this group had reached a degree of intelligence beyond that of the average American child of twelve years, and in a considerable number of cases the intelligence was much lower. "It is not easy, as we have already indicated, to define the precise rela- tionship between mental defect and criminal behavior in every instance, but the evidence tends to be cumulative that, inasmuch as criminal behavior is the resultant of the interaction between a particularly constituted individual and a particular environment, environmental factors play a significant role in determining crim- inal behavior, even in the defective. This general opinion may 1 See Mental Hygiene for January, 1918, p. 86. STUDY OF INDIVIDUAL DELINQUENT 299 be expressed with reference to all the psychopathologically classi- fiable types. "The Mentally Diseased or Deteriorated Group includes cases in which evidence came to light of a change in personality, as well as of more or less distinct and well-defined delusional for- mations and hallucinatory experiences, which findings had their basis in either a mental disease or a deteriorating process. As will be seen in the more detailed discussioh of this group, de- mentia praecox and conditions closely allied to it contributed chiefly to the group. A more detailed study o£ the relationship between the personality changes involved in this disease and criminal behavior is being contemplated. "The Psychopathic Group — ^the most difficult to define — con- stitutes beyond a doubt the most baffling group in our classifi- cation. Because it is often so difficult to convince the layman, or even the physician, that one is dealing here with a distinctly abnormal personality, a clearer definition of this form of devia- tion from normal mental health is very much needed. Our diagnoses were based upon a study of the life history and mode of reaction which these individuals exhibited in their various contacts with society. That we have probably not erred to a very large extent in diagnosing the individuals belonging to this group may be seen, for instance, in the fact that the average number of sentences to penal or reformatory institutions per psychopathic recidivist is 3.9, and that 23.67 per cent, of them have had more or less habitual recourse to the use of narcotic drugs. The industrial careers in most instances were anything but successful, and the entire life picture which the average case in this group presents cannot fail to give one the distinct im- pression that he is dealing here with a decidedly abnormal type. "The Unclassified Group embraces all cases which could not be classified within any of the three preceding groups. It does not mean, of course, that we are dealing here with what is gener- ally considered to be a normal human being. It simply means that our knowledge concerning a great many of the individuals embraced in this group is still so deficient as to make it unwise at this time to classify them definitely, It is our belief that a more intensive clinical study of these now unclassifiable cases will throw a good deal of light on the causative factors in crim- inal behavior." i ^Mental Hygiene, Jan., 1918, pp. 90-91. 300 PUNISHMENT AND REFORMATION Dr. Glueck drew some interesting conclusions from this study in regard to the relation between the serious- ness of an offence and the frequency with which it is committed, on the one hand, and between its serious- ness and the percentage of psychopathological offend- ers committing it, on the other. He found that the offences committed by these prisoners, when classified on the basis of motive, fell for the most part into three groups, as follows: Number Per Cent. Crimes having their impulse in the instinct of acquisitiveness 388 63.8 Crimes having their impulse in the instinct of pugnacity 148 24.3 Crimes having their impulse in the instinct of sex 60 9.9 Other crimes 12 2.0 608 100.0 Believing that acquisitive crimes are more serious than pugnacious and pugnacious than sex, Glueck drew from this table the conclusion that "the frequency of a given type of offence is in inverse ratio to its serious- ness," He further analyzed these three groups in re- gard to the percentage of psychopathologically classi- fiable offenders in each, and found: Number and Per Cent, of Psychopathologically Classifiable Offenders Nature of Crime Number Per Cent. Acquisitive 222 57.2 Pugnacious 87 S8.8 Sex 42 70.0 From this Glueck concluded that "the extent of psycho- pathological classifiable cases is in direct ratio to the seriousness of the offence." A similar relationship STUDY OF INDIVIDUAL DELINQUENT 301 came to light between the degree of delinquency, or recidivism, and the extent of psychopathologically classifiable cases: of the entire 608 cases, 66.8 per cent, were recidivists; in the mentally diseased or deterio- rated group this percentage was lower, being only 63, but in the defective and psychopathic groups it was higher, being 80.6 and 76.7 respectively. Further illustration of the part played by mental factors in the etiology of crime is afforded by the study of 243 inmates of the Massachusetts Reforma- tory for Women, referred to above. Here, again, , not only mental defectiveness was found. Epilepsy, hysteria and psychopathic tendencies abounded, as is shown by the following summary of the cases studied:^ Cases Per Cent. Giving history of epilepsy 29 12.0 Giving history of hysteria 28 11.6 Psychopathic personalities S Transferred to hospitals for the insane 3 j^j Markedly neuropathic IS "Control defectives" 12 . Total 37.7 Eighty-four of the 243 cases showed apparent normal mentality, yet further study revealed that forty-seven of these displayed the following characteristics: Cases Hysteria 17 Epilepsy ' Psychopathic types 5 Neuropathic types 10 "Control defectives" 8 Thus, it will be seen that only thirty-seven cases, or 15 per cent, of the whole, showed normal mentality 1 See first footnote, p. 297. 302 PUNISHMENT AND REFORMATION or were without marked nervous defect. "Consider- ing that those cases," says Dr. Spaulding, "which show poor mental ability, are not perhaps able to cope fairly with their environment on account of their slight mental defect, we find 85 per cent, of the cases studied showing some underlying defective mental or physical factor. We do not believe that this repre- sents to any extent the cause of prostitution, for there are doubtless large numbers of individuals in the com- munity with the same mental and physical defects who are not leading such a life. Still we feel that this class of women if not sufficiently protected, represents the ones who are first (on account of their weakened resistance) to offer themselves to fill the demand." This is not the place, nor is the present writer the person, to go into niceties of psychological definition, or to draw the line closely between one group and another of the mentally abnormal and indicate the peculiar characteristics of each. The subject is highly technical and knowledge of mental types is in a state of flux; even terms and classifications in accepted usage to-day drop from favor to-morrow. The pur- pose here is merely to suggest something of the rela- tion that mental factors bear to delinquency, and to give the reader a general idea of what is afoot in this field. Some of the implications of the subject for treat- ment will be discussed in a later chapter. Meanwhile we may fairly sum up the position of present students by quoting the conclusion reached by Healy as a result of his work at the Chicago Psychopathic Institute from 1909 to 1914: "Our own case studies have STUDY OF INDIVIDUAL DELINQUENT 303 gradually led us to the overwhelming conclusion that for practical purposes, what we particularly want to know about the offender are the immediate mental antecedents of his conduct. . . . With full respect for those who earliest apprehended the problem of the delinquent as an individual, we nevertheless see the utter inadequacy of work which did not, first and fore- most, determine the offender's mental content, his mental traits, peculiarities and abilities. Vastly im- portant though social and biological backgrounds are, yet they must take at least second place to these more causative factors of delinquency."^ Healy also prepared a list of the mental factors that he found as "bases of delinquency," which because of its inclusiveness, and suggestiveness for the non- technical reader, is worth quoting: Mental dissatisfactions; those developed from cravings of no special moral significance in themselves, or even from unfulfilled creditable ambitions. Criminalistic imagery, sometimes fairly obsessional, which persists, and is strong enough to impel misconduct. Irritative mental reactions to environmental conditions, seek- ing expression or relief in misdoing. The development of habits of thought involving persistent criminalistic ideas and reactions. Adolescent mental instabilities and impulsions. Mental conflicts, worries or repressions concerning various experiences or matters of mental content. These sometimes interfere with that smooth working of the inner life which fos- ters socially normal conduct. The misdeed here, too, may be a relief phenomenon. The chronic attitude of the offender representing himself to himself as one, like Ishmael, whose hand shall be against every man and every man's hand against him. The remarkable phe- nomenon of anti-social grudge may be included here. i"The Individual Delinquent" pp. 28, 29-30. 304 PUNISHMENT AND REFORMATION Mental peculiarities or twists which are agents in the pro- duction of anti-social conduct, but which do not overwhelm the personality enough to warrant us in grading the subject as aber- rational. Aberrational mental states: all the way from fully-developed psychoses to temporary or border-line psychotic conditions. Mental defect in any of the several forms described in our special chapter on the subject. ^ Of the methods of research by which mental and psychological factors are discovered, a whole volume might be written. Since special texts and monographs on the subject abound, no attempt will be made to discuss it in detail here. Its relation to the modern study of criminology, however, demands that a few words of explanation be given. Undoubtedly the science of applied psychology, though yet in its infancy, has grown lustily during the past decade. Criminologists have both benefited from and contributed to this growth. Studies of individuals have brought about an improvement in technique, and have raised standards both of observation and of scientific self-criticism; meanwhile, new instruments of measurements have been forged out of the necessi- ties of criminological inquiry. Not only is it possible now, as has already been suggested, to discover general levels of mental ability, but it is possible also to dis- cover special aptitudes, defects and characteristics. For some of these definite tests have been formulated, for others common-sense methods of Inquiry and observation are sufficient. Criminalistic imagery and mental conflicts, for example, can often be discovered through skilful questioning by an experienced exami- 1 "The Individual Delinquent," p. 32. STUDY OF INDIVIDUAL DELINQUENT 305 ner. More formal attributes and qualities require more formal and exact methods. The growth of such methods has been attended by one of the most animated disputes in the annals of science. The reverberations of this dispute have not yet ceased. The discussion centered about the use and interpretation of formal tests for measuring mental ability and discovering mental traits. Some of the. acrimony of the dispute was undoubtedly caused by the incautious claims of a few early advocates of mental tests. The Binet Measuring Scale for Intelli- gence was hailed as an instrument of marvellous exact- ness. Anybody's mentality could be diagnosed by it; anybody could use it. All that was necessary was a few minutes of time, a little attention, and presto ! the person tested would be told on just which rung of the mental ladder he stood. The reaction from this attitude was swift. Many people went so far as to discard the tests as entirely worthless. Finally, how- ever, a more scientific attitude set in and as a result of criticism applied both to the tests and to their use, their possibilities and limitations came gradually to be seen with clearness. Meanwhile, adaptations and improvements were made and the Yerkes-Bridges and the Stanford Revision, among others, were added to the available tests. To-day conservative psychologists recognize in these and other carefully worked out measurements, instruments of proved usefulness in diagnosis. In general the tests are now regarded as having no great value for accurate diagnosis beyond the mental age of ten years. The development of tests for mental ability bears 306 PUNISHMENT AND REFORMATION a close analogy to a similar movement in the more strictly educational field. Workers with school chil- dren have also been inventing tests during the past decade. A similar controversy, too, has waged over these. Six years ago a speaker before the Department of Superintendence of the National Education Asso- ciation was loudly applauded for declaring that "one could no more measure the relation between teacher and child than he could measure the divine afflatus of a mother's love." Yet to-day scales for the measure- ment of educational products and teaching efificiency are in use throughout the country and in all parts of the world. Progressive educators are able to apply definite, standardized tests to the progress of pupils in spelling, arithmetic, drawing, English composition, the use of vocabulary, geography, handwriting, read- ing, Latin and other subjects, and are able to measure their own and others' teaching efificiency.^ Tests for these purposes differ from most of those that we have been considering in that they measure products and achievement rather than qualities and aptitudes. Their object is to supply a basis for criticising the teaching process, while the object of the others is to measure mental capacity and to reveal the subject's degree of educability. Both proceed upon the belief that "what- ever people now measure crudely by mere descriptive words, helped out by the comparative and superlative forms, can be measured more precisely and con- ^ For a full list of tests and scales in the various school sub- jects see the "Seventeenth Yearbook of the National Society for the Study of Education," Part II ; published by the Public School Publishing Company, Bloomington, 111. STUDY OF INDIVIDUAL DELINQUENT 307 veniently if ingenuity and labor are set at the task."^ Neither has so far been perfected as to justify blind and indiscriminate use, but both have become valuable tools in the hands of those who know how to apply them. It was a defect of many of the earlier mental tests, and especially the Binet, that they were based largely on the use or understanding of language. Everybody knows some person whose flow of words gives him the appearance of being bright or well-informed when a little closer acquaintance shows him to be in reality a garrulous dullard; we all know, too, clever people who are extremely slow at expressing themselves. This simply means that language is not the only medium through which people give evidence of their capabilities. Other tests, therefore, have been devised for discovering ability. Many of these are called performance tests, and involve the use of concrete material in such ways as to measure some of the most socially valuable qualities. Certain tests, for example, call for inserting the missing parts of pictures, others for fitting various sized pieces of wood into given spaces, others for solving simple or more complex puzzles requiring a process of reasoning, others for visually memorizing geometrical and other figures, and the like. The game of checkers is sometimes used as a test for foresight, though care must be taken to make sure that the subject has not had an opportunity to acquire skill by learning any of the well-known openings and lines of play. 1 "The Nature, Purposes and General Methods of Measure- ments of Educational Products," by Edward L. Thorndike, ibid., p. 16. 308 PUNISHMENT AND REFORMATION Not all mental tests now in use are intended for the discovery of so-called levels of general ability. There are special tests for special aptitudes and func- tions such as motor coordination, power of memory, attention, ability to learn and profit by experience, judgment, discrimination, planfulness, suggestibility and even will-power. Obvious tests exist for artistic ability and for discovering the nature of one's mental interests. For work with offenders some of these are especially valuable; for example, it may be more im- portant, in getting at the underlying causes of delin- quency, to know how an individual grades in self- control, in perceptive power, or in ability to learn from experience than to know the effect of formal education upon him or his language ability. Undoubtedly, new tests will be devised from time to time and many now in use will be discarded. A profita- ble field for experimentation now lies open in regard to vocational aptitudes, where an almost virgin soil awaits the experimenter. In the giving of tests, caution and safeguards are necessary. Conditions must consciously be prepared for the examination ; even the room must be got ready. The judge who recently permitted the giving of the Binet tests to a defendant in open court^ may have contributed dramatically to the enlightenment of the jury and the public in regard to psychological pro- cedure; it is, doubtful if he established a valuable precedent in the method of discovering true mental conditions. Nothing is more important than the state of mind of the examinee at the time of the inquiry. 1 The Survey for January 13, 1917, p. 427. STUDY OF INDIVIDUAL DELINQUENT 309 Many conditions may disturb the examination, such as the warmth or closeness of the room, dulness from anemia or recent illness, fatigue, the various mental states supervening in epileptics, the irregular mental states of hystericals, the effects of special sensory de- fects, etc. ; Healy gives a long list of others. Deliber- ate deception is rare; laziness is occasionally en- countered. The ability of the examiner to secure cooperation is all important. A stiff or impatient examiner may secure results that do not reflect the patient's real ability. The examiner should efface himself as far as possible, should bend with the person being examined, should play into his moods. En- couragement is often the key to successful testing. A common error is in thinking that the examiner need not be specially trained or temperamentally fitted for his task. Not only training, but a large experience in giving tests is necessary for good results. In interpreting the results of tests, trustworthy norms for comparison are essential. To compare the performance of uneducated delinquents from poor environments with that of college-bred sons of wealthy and cultured homes yields little that is suggestive. Not only must standards "be worked up for each given situation or social group in which tests are applied," but "unless there be remarkable uniformity of school training, environmental background and emotional conditions, such as obtain readily in a college labora- tory, interpretation of answers, types and times o£ performance can only, in all fairness, be made within wide limits."^ When such conditions do exist, in- i"The Individual Delinquent," p. 104. 310 PUNISHMENT AND REFORMATION terpretation by trained psychologists is relatively easy. In concluding this discussion of mental factors and delinquency, a warning must be sounded against ex- clusive emphasis of the psychiatric attitude in relation to crime. This attitude does not by any means tell the whole story. Mental factors happen to be the ones most needing emphasis at present because they are the ones most likely to be overlooked ; moreover, no matter what the external causes may be, these must produce some psychical effect before crime ensues. Neverthe- less, neither psychiatrists nor others should lose sight of the many non-psychological factors that contribute directly or indirectly to anti-social behavior. Glueck says that "the mere establishment of the fact that so many criminals are defective, or insane, or psycho- pathic, will not aid materially in the solution of the problem of crime, if one remains blind to the various environmental factors, physical as well as social, which are responsible for criminal behavior." And we have already quoted his statement that since criminal be- havior is the "resultant of the interaction between a particularly constituted individual and a particular environment, environmental factors play a significant role in determining behavior." This general opinion may be expressed, he says, with reference to all the "psychopathologically classifiable types." Among the environmental factors that may become the starting points, if not the causes, of criminal careers are unintelligent handling in the home or un- fortunate home conditions (crowding, poverty, im- moral home environment, severity of treatment by the STUDY OF INDIVIDUAL DELINQUENT 311 parents, constant irritation, uncongeniality, etc.), bad adjustments at school, unwise social allurements, voca- tional maladjustment — indeed, misfortune in any one of the many shapes that human flesh is heir to. Here, as in regard to mental factors, knowledge of etiologic relations is becoming greatly broadened by the study of individuals. We must not exclude from the list of environmental factors certain gross defects in the machinery of the criminal law which are undoubtedly responsible not only for the continuance but in some instances for the beginning of lives of misconduct. The commitment of first offenders to an institution, which too often proves to be only a school for learn- ing crime, is one respect in which criminal jurispru- dence is still prone to err. Other environmental causes exist. Further attention to these will be given in a later chapter. For the moment we must now con- sider treatment in its relation to the individual offender. CHAPTER XIII TREATMENT The treatment of the offender as here discussed is to be carefully distinguished from the prevention of crime. Prevention embraces every measure that seeks to modify or remove conditions favorable to the initial commission of crime ; treatment is the reclamation of the actual law-breaker and embraces every measure that seeks to check his waywardness or to render him harmless to society. Prevention may address itself to conditions that extend throughout society or it may centre about a single individual who has not yet com- mitted crime and try to prevent him from taking that step. Treatment, on the other hand, is almost solely concerned with the individual. Prevention may be likened to sanitary measures for the control of disease, treatment to the cure of the sick. Treatment has, however, a more positive side than this. It aims to increase the offender's usefulness to himself and to others. The cure for delinquency not infrequently lies in the development of some admirable trait or talent by which a new interest in normal ways of living is attained. Treatment, to be successful, must be sharply indivi- dualized. We do not cure the sick en masse; no more can we change law-breakers into law-keepers so. , 312 TREATMENT 313 What to do with this particular bit of human flesh and emotion is the question put inexorably by every offender to society. Once the causes of misconduct in a particular individual are learned, all the resources of the physician, the educator, the psychiatrist, the religious or moral leader and the disciplinarian should be brought to bear to remove them. Experience in dealing with anti-social behavior is invaluable, too. One should know, for example, when to punish and when to withhold punishment; when an excitable temperament is in danger of outrunning self-control and of becoming abusive or of forming a delusion of persecution; when it is safe to exact a confession for misconduct, and when a confession will bring only humiliation and loss of self-respect. One should be able to distinguish between the various degrees of obstinacy, slowness of comprehension and mental deficiency — and the appropriate measures for each. In- sanity can often be averted by restraint in the use of force. The braggadocia and boastfulness of youth are not infrequently best encountered by being permitted to run their course, rather than by being met with punishment or an unforgiving front. With prison- ers of fair intelligence and judgment, reason and a straightforward facing of facts are demonstrably superior weapons to bullying and distrust. Many a prisoner has been heard to say that he would "never forgive such-and-such an officer" who had browbeat him, while another was the "first fellow who ever talked things out with me in a square way." Treatment falls naturally into three parts: that which can be applied before confinement, that which 314 PUNISHMENT AND REFORMATION can be applied during confinement and that which can be applied after release. Treatment Before Confinement The policeman is society's outpost in the treatment of crime. It is he who usually comes into contact first with the offender. No attempt can be made here to outline a model police system, but one observation grows naturally out of the preceding chapter : It would be well if policemen knew more than they do concern- ing the nature of delinquency and the causes of crime. Their very position gives them a strategic influence upon the future of law-breakers. They can often make or break the careers of first offenders by sym- pathy given or withheld, by fair or rough handling, by intelligent understanding of the forces back of a given act or by neglect of those forces. By hounding and espionage they can undo all the good that institu- tions may have accomplished upon recidivists. Police- men should make it a golden rule never to arrest ex-offenders without reasonable ground to believe that new acts of delinquency have been committed by them. The mere arrest "upon suspicion" of those whom society has already punished is one of the surest ways of stopping whatever process of reformation may have been begun. The practical effect of having police forces that are trained in the scientific aspects of delinquency would be prodigious. A policeman, for example, who conceived his responsibility in terms of the broadest social interest and regarded himself as charged not only to protect society from the criminal but the crimi- TREATMENT 315 nal from himself, might with the proper training and encouragement set many a law-breaker back upon the path of moral conduct. Instead of sowing the seeds of an anti-social grudge by clapping his hand to a man's shoulder on slight provocation and dragging him off to jail, he might discover what conditions in the man's environment are causing his untoward be- havior and try to remove them; or, if this proved impracticable, he might report the case to an agency that could make the necessary adjustments. During the unemployment crisis in New York City in the winter of 1914-1915 the police helped to find jobs for hundreds of discouraged workmen. This is doubtless no solution of an acute industrial situation, but it is in a measure a rational approach to the prevention of crime. Then, too, a policeman who knew something of the relation between feeblemindedness and crime might easily prove a valuable ally in the detection of mentally defective offenders. One who knew the elementary principles of evidence might show more discrimination in the manner and number of his arrests. Some beginnings have been made in securing pro- fessionally trained police forces. Scientific police schools have, of course, been established in Europe for many years. In this country the lead was taken by August VoUmer, chief of police of Berkeley, Cal., in 1908, and the Berkeley school remains perhaps the most thorough yet started. For ten years the faculty of the University of California have been furnishing the police force of that city with required courses in the following subjects: elementary rules of evidence; 316 PUNISHMENT AND REFORMATION general principles of evidence; criminal law; ele- mentary physiology, first aid to the injured and munic- ipal sanitation; parasitology; elementary psychology and feeblemindedness in its relation to crime; psychi- atry ; physical defects and their relation to crime, and social causes of crime. Plenty of laboratory work in Berkeley itself supplements this professional training. Chief VoUmer believes that "the more intelligent manner in which much of the police work of this city is now performed by our officers"^ is adequate proof of the value of the training. The example of Berkeley has been followed by only a few other cities, notably New York under the recent administration of Com- missioner Arthur Woods. Several cities have set up compulsory thirty days' training courses for new policemen, but these are necessarily inadequate. Psychopathic laboratories in connection with courts (in New York City there is a psychopathic laboratory in connection with police headquarters itself) have helped to open the eyes of policemen to the intricacy of criminal causation. The morning "line-up" at police headquarters can be made an effective laboratory for familiarizing policemen with the material they deal with. When a policeman first discovers that the re- peated arrest, trial and commitment to an institution of a defective or psychopathic offender is simply one way to insure the continuance of criminal conduct by him, a long step has been taken toward making that police- man not only a more discriminating agent in gathering and presenting evidence, but a firmer ally of treatment that shall seek positive reformative results. 1 See The Survey, August 12, 1916, p. 503. TREATMENT 317 Chief Vollmer expresses a high ideal of police serv- ice in these words: "It has always been my opinion that the police officer should be trained for the profession in much the same manner as physi- cians, attorneys and other professionals are prepared for their life work. There should be established in every state university a chair of criminology, and no person should ever be appointed to do police duty until he or she has secured from such an institution the necessary degrees to qualify as an officer." ^ As an ideal for the individual policeman this may not be attainable for some years, but it seems to be reason- able enough for commanding police officers. Why should not college men volunteer and train themselves for such positions, as they do now for similar ranks in the army and navy? Judges are preeminently the persons who should know well the offenders they deal with. We are slowly getting rid of the old doctrine that judges, law- givers and all others with power to affect the destinies of their fellow-men can shut their eyes to whole de- partments of life and give decisions based on theory and legal abstraction alone. We are breaking down the barriers that surround admissible evidence. The doors of the court room are being opened to the in- most secrets of human nature and we are gradually enlarging the sphere of what may be regarded as "material" and "relevant."' No judge to-day is justi- fied in passing sentence until he knows enough about the delinquent before him to be able to predict the probable outcome of any contemplated course of treat- ment. This is the lesson of the new penology for jurists. It means, among other things, that the diag- 1 The Survey, Aug. 12, 1916, p. 503. 318 PUNISHMENT AND REFORMATION nosis of the offender should first be made by the court or its adjuncts. Judges should bear in mind Goddard's dictum that every wrongdoer is irresponsi- ble until proved responsible, and should spare no effort to determine the mental and environmental causes of delinquency. Every court, therefore, should have the services of a psychiatric clinic, of an investigative staff competent to look up the family, social and personal history of the offender, and of a medical examiner. The judge himself need not be a specialist, but he ought to know the uses of specialized information. He ought to be able to interpret the data given him. His equipment for his task should be such that he can intelligently direct the study of the individual offender. He ought to be familiar with the more intimate and personal causes of anti-social conduct and with the remedial and therapeutic measures that are available for each. He should never commit the blunder, for example, of committing a man to an institution for hard labor if the man has delusional insanity, or is mentally de- ficient, or has a valvular disease of the heart that makes hard labor dangerous. Neither should he sentence a drug fiend, or an offender in the initial stages of tuberculosis, to an industrial cell-block prison if a farm prison affording life in the open is available. A new standard in criminal procedure was set by a verdict handed down in 1914 by a jury in the supreme court of Herkimer County, New York. This verdict read: "Not guilty as charged; acquitted on the ground of criminal imbecility." The importance of these words cannot be overestimated. The verdict recog- TREATMENT 319 nizes, as Goddard has pointed out, "that weakness of mind, as an excuse for crime, is of the same impor- tance as disease of the mind ; puts feeblemindedness in the same category with insanity, and requires that it, like insanity, be considered in all discussions of re- sponsibility." Because an offender is feebleminded, it does not follow, of course, that no further cognizance is to be taken of him or that he should be allowed to go free ; the important point is that his problem should be recognized as distinct from that of mere criminality and that the court is precisely the agency by which this condition should first be discovered. The judge is not the only participant in the trial, however, who should be familiar with the individual delinquent. The lawyer is another. How much would it not mean for a wiser administration of the criminal law if lawyers understood what that bundle of complex traits, unsuspected weaknesses and potential strengths that we call "the prisoner at the bar" really is! Our courtrooms would undergo a marked change in pro- cedure and spirit. They would become less a battle- ground where opposing lawyers fight duels with human lives depending on the outcome and more a laboratory for the discovery of truth. It is reasonable to sup- pose that fictitious pleas of insanity would lose some of their attractiveness ; that the glaring artificiality of "hypothetical questions," with their unscientific way of getting at the facts, would soon be banished ; and that defender and prosecutor alike would unite in a cooperative effort to learn the truth and to give the wrongdoer whatever advantage the truth may hold. The springs of human conduct should be best known 320 PUNISHMENT AND REFORMATION by those who spend their lives in defending and prose- cuting that conduct. One way of bringing this about is for law schools to give required instruction in mental types, in the causes of wrongdoing and in the fundamentals of social adjustment. We may be quite sure that the mazes of human conduct are as important and can be made as intellectually attractive as the mazes of civil suits and of legal procedure. Few cases in torts or real property, for example, are any more inherently interesting than the life history of the youthful Italian- American given in a preceding chapter. Here, one would suppose, is a problem quite worthy of the legalist's best powers. What is needed is to catch our lawyers, like our criminals, young. A number of cities have sought to secure a juster treatment of law-breakers before commitment by estab- lishing the position of public defender. The first office of this description was created by Los Angeles County, California, in 1913. The purpose of the public de- fender is to stand ready to defend all persons accused of crime. His duties are thus the reverse of the duties of the public prosecutor. Chief among the arguments advanced for the creation of this position is the fact that many people accused of crime are either too poor to secure competent legal defence or are so unfamiliar with legal procedure that easy ad- vantage of them can be taken. This is undoubtedly a powerful contention. It may be pointed out, however, that it would help little toward the discovery of truth if public defenders were animated by the same spirit that animates many prosecutors and if, irrespective of TREATMENT 321 the offender's guilt or his danger to others, they tried to secure acquittal at all hazards. If, on the other hand, they should raise professional standards and promote a scientific interest in the causes and treat- ment of wrongdoing, they ought to be encouraged. Policemen, judges and lawyers do not exhaust the list of those who need to know something of what the modern study of crime is revealing. Probation officers, heads of temporary detention homes, teachers, phys- icians, pastors and, above all, parents, are others. Teachers, pastors and physicians often have it in their power to establish confidential relations with wrong- doers; if they understood more than they do of the springs of anti-social conduct, many a wayTvard course might be prevented or cut short. The case for parents is obvious: The home is the earliest training school for life. Many a beginning in delinquency is first seen, however, in the school, and this institution must answer to the charge of often failing to arrest such beginnings through neglect or misunderstanding of causes. The probation officer has, of course, a professional interest in this subject. He is often the first public agent to come into close touch with the offender. While tact and ability to win confidence are necessary qualities in him, first hand acquaintance with causes and personal histories is of paramount importance. He should know fully the record of each offender in his charge. The first applyer, many times, of treat- ment, he must know what it is that he is trying to correct or his efforts may prove of no avail. Probation is, indeed, one of the measures most 322 PUNISHMENT AND REFORMATION frequently taken in the preinstitutional treatment of criipe. It has suffered from the common error of being regarded as only another name for judicial clemency or for letting offenders "down easy." In reality it is a positive method of treatment. Proba- tion officers keep a close and sympathetic watch upon the habits and conduct of persons put in their charge and report periodically to the court concerning them. Probation is, thus, a method, short of actual confine- ment, of retaining control over the offender for the purpose of learning more about his delinquent pro- clivities and of exerting a wholesome educational in- fluence upon him. "From a social point of view," say Flexner and Baldwin, in disqussing particularly the relation of probation to the juvenile court, "proba- tion may be said to be a process of educational guid- ance through friendly supervision. Mere surveillance is not probation. Probation is an intimate, personal relation which deals with all the factors of a child's life, particularly his home. Its chief function is to adjust the forces of the community to the child's life. Every social agency is called into play, the object be- ing to surround the child with a network of favorable influences which will enable him to maintain normal habits of life." Often a suspended sentence, enforce- able if the probationer fails to show progress or re- lapses into anti-social conduct, accompanies probation. It is apparent, therefore, that the probation officer ought to be familiar with both the mental and environ- mental causes of delinquency. In the Boston Munici- pal Court the probation department is directly con- nected with the psychopathic service. Not infrequently TREATMENT 323 the best recourse of the probation officer is to change whatever in the environment of the offender makes for a continuance of his deHnquency. Sometimes it is possible to induce a whole family to move, if by so doing a demoralizing neighborhood and bad com- panions can be avoided. Laws authorizing putting convicted persons upon probation have been passed in every State in the Union, in the District of Columbia, in Alaska, Porto Rico and Hawaii. A federal probation bill, applying to United States district courts, was passed by Congress late in 1917 but failed of Presidential approval. In fifteen States the law applies only to juveniles; the remaining States, except Wyoming, have both adult and juvenile probation ; Wyoming has adult probation alone.^ Not all of these laAys, however, secure ade- quate or satisfactory probation systems. In some the number of probation officers is too small, in others their work is undervalued and underpaid. A "model" probation law has been prepared by the National Pro- bation Association, whose offices are in Albany, N. Y. This association and others^ who have studied proba- tion in operation believe that paid officers are superior to those who merely volunteer their services, because of their greater professional interest in the work and greater amenability to supervision. 1 "Annual Report of the National Probation Association," Albany, N. Y., 1917. 2 See, particularly, "Juvenile Courts and Probation," by Flex- ner and Baldwin, pp. 117-119. 324 PUNISHMENT AND REFORMATION Treatment During Confinement The treatment of the offender can never be wholly reduced to scientific formulas. Like teaching, it will always remain a great art. Skill in drawing people out, in appealing to the best in their personalities, in bringing tact, judgment and sheer divination to bear upon the intimate problems of changing the lives ol others, will always be large elements in its success. The great prison warden will ever be a man with in- sight into strength and weakness of character and with an instinctive touch for the springs that control emotion and conduct. Treatment in the institution, however, is likely to become both more deft and more precise. There the environment can be artificially molded and controlled. Hence, as diagnosis becomes more accurate and we come to understand better the means of criminal therapy, institutional treatment will become more scientific and more resourceful. The first thing to remember with respect to the institutional treatment of offenders is that a uniform regimen for all prisoners is worse than bad; it is futile and defeats its own purpose. Reference has al- ready been made to the ridicule that would be heaped upon any physician who should prescribe the same remedies for every person who came to him; similar distrust would be felt toward any hospital that should treat all of its patients alike. Yet our prisons are for the most part built upon the principle of uniform treatment, and not only receive men for fixed sentences (imagine a hospital that should decide when a man came to it exactly how long he should stay!), but do TREATMENT 325 the same things to them and expect the same things from them while they are there. The folly of this practice may be made still clearer by an analogy to a school principal who should refuse to make distinctions among children and should subject all of them to the same rate of progress, the same discipline, the same course of study. Too much of this is still done in most of our public schools, but even there individual differences have long been recognized and children who have not satisfactorily passed the work of a given grade are compelled to remain in that grade another year. This is, indeed, a species of educational inde- terminate sentence. But in prisons we have only caught up with those crude devices of an earlier generation, the fool's cap and the dunce's stool. Dr. Glueck has some pertinent remarks upon this subject in his study of Sing Sing recidivists. "It should be obvious from the foregoing that it would be futile to expect any uniform machinery, no matter how perfect such might be, to be equally applicable to all of the individuals embraced within this group of 608 cases, and that a more hopeful solution of the problem might be expected from a more in- tensive individualization in the administration of it. "To the student of behavior, a knowledge of the individual back of a given act is considered absolutely essential if a clear understanding of the nature of behavior is to be had. Never- theless, one cannot escape the conviction that as far as the ad- ministration of the problem of crime is concerned, the man back of the act is largely lost sight of, and what is actually administered is the criminal act and not the criminal. Intimate contact with the problem of crime inevitably leads to the opinion that every agency concerned in the administration of this prob- lem sees in its own work an end in itself, and seems to lose sight of the common goal or end, toward which all should be striving, 326 PUNISHMENT AND REFORMATION namely, the readjustment of that badly adjusted individual, the criminal. "That this cannot be expected to be otherwise under the prevailing attitude of the average community toward its problem of crime must be obvious to anyone who takes the trouble to look into the situation more closely. Just as long as a com- munity will judge the efficiency of its police officers, its prose- cuting attorneys, and its judiciary by the volume of crime they are able to detect and punish, rather than by the extent to which they succeed in preventing crime, an unnecessarily large number of what might be termed provoked crimes must be the result. "The manner in which the problem of any individual criminal is handled before he is admitted to prison must, of necessity, affect the degree to which the institution will succeed in accom- plishing what is perhaps the most important of its functions — the return to the community of a better man than it originally received. To expect any institution, penal or reformative, to accomplish this in all cases, in view of the constitutional makeup of so large a part of the constituency of the average prison, would be well nigh expecting the impossible. But if the reforma- tive institution cannot accomplish this result, it loses very much of its usefulness as an agency for the administration of the problem of crime, and some other method must be resorted to in those cases in whom periodic imprisonment fails to produce the desired result." ^ The institutional ideal toward which the conception of individual treatment points is a system of specialized prisons for giving appropriate care to each definable class of law-breakers. Separate provision ought to be made for every group that requires a particular kind of treatment or environment. The make-up of such groups will be determined, of course, by mental, physical, industrial and other classifications. In an ideal system of this sort the length of the prisoner's term will be unfixed, since no one can tell beforehand how long it will take to effect the desired change. ^Mental Hygiene for January, 1918, pp. 86-87, TREATMENT 327 What prisoners will be placed together in an institu- tion will depend upon what ones can be adequately cared for in a single group or under a single manage- ment. The kind and diversity of institutions will in turn depend upon current knowledge of the nature, causes and therapy of crime. This ideal is nowhere fully attained to-day. Some progress toward it has been made. Nearly every State in the Union, for example, has made separate institu- tional provision for the so-called "criminal insane," though the care given to this class is not -always of the best. Several States, also, have separate provision for epileptics. A number have established farm prisons on wide acreage for prisoners who can benefit from life in the open. The reformatory, of course, is a commonplace in our penal system. So, also, are pa- rental and industrial schools. Each of these institu- tions is intended to meet the need of a more or less specialized class. That they do not do so with uniform success is no denial of the fact that their establish- ment shows society's realization that specialization is necessary. On the other hand, special provision for so clearly de- fined a class as the defective delinquent is almost wholly lacking. Massachusetts has recognized the existence of this class in recent legislation, but still provides for its commitment only to reformatories containing nor- mal delinquents. Washington authorized in 1918 the erection of two new wings for defective delinquents at her state custodial school. Indiana, by a recent law allowing the transfer of inmates from one institu- tion to another — provided this does not increase the 328 PUNISHMENT AND REFORMATION severity of punishment — has probably opened the way for putting defective delinquents into the Indiana -School for Feebleminded Youth or into the Village of Epileptics. Minors brought before a juvenile court in Ohio may be committed to the guardianship of the State Board of Administration and by it to the State Bureau of Juvenile Research; if found to be feeble- minded or epileptic they may then be assigned to institutions for the special care of those classes. In Ohio, also, a minor who has been committed to one institution may be transferred to another whenever it appears that he ought to be in such other because of "delinquency, neglect, insanity, dependency, epilepsy, feeblemindedness or crippled condition or deformity." California has taken the longest step toward special institutional provision for defective delinquents. By an act passed in 1917, $250,000 was appropriated for the initial expenses of establishing the Pacific Colony. To this institution not only non-delinquent feeble- minded and epileptic persons will be admitted, but also boys and girls who have been brought before a juvenile court and found feebleminded; any person convicted of crime in any court if he be found feebleminded ; any feebleminded boy who has been or may be committed to the State reformatory at lone or the Whittier State School; and finally, any feebleminded girl who has been committed to the School for Girls at Ventura. When it is remembered that approximately one in five of the inmates of penal and correctional institu- tions is mentally deficient, it will be seen that the slight provision above mentioned is wholly inadequate. Not even this provision, however, is made for the many TREATMENT 329 kinds of mentally abnormal offenders other than the feebleminded. Dr. Glueck found the psychopathic de- linquent to constitute 18.9 per cent, of his 608 Sing Sing cases. These he calls "beyond doubt the most baffling group in our classification." In spite of the fact, however, that the psychopathic individual "de- serves much more attention at the hands of society than he has received thus far," almost nowhere is he recognized as distinctly abnormal, and no special pro- vision for him is anywhere adequately made. Even our classification of the "criminal insane" is haphazard and unscientific. On the medical side, too, we are far from meeting the issue of classification and individual- ized treatment squarely. We still send tuberculous offenders to damp, ill ventilated, cell-block prisons; we frequently fail to segregate persons afflicted with syphilis; we make practically no special provision for alcoholics or drug addicts. On the side of personality and recidivism, also, we fail to distinguish adequately. First offenders are still housed, in many prisons^ with adept and professional criminals, as well as young offenders with adults. Tramps and vagrants, who often present peculiarities of character and tempera- ment all their own, are treated in much the same way as murderers and thieves. It is not contended that each of the groups here named requires an exclusive and separate institution. It is contended that the needs of each require to be more definitely recognized and that some degree of special institutional provision ought to be made for them. New York has under consideration a plan for a diversified prison system that will, if carried out, be 330 PUNISHMENT AND REFORMATION the farthest step yet taken in the direction of the ideal above described. This calls, first, for the erection of a new prison on the present site of Sing Sing, to serve primarily, if not exclusively, as a station for examin- ing and classifying the entire prison population of the State. This new prison will be the clearing-house for diagnosing the individual offender. It will have a psychiatrical clinic, facilities for the medical, social and family study of delinquents, and departments of voca- tional guidance, education and religious or moral super- vision. Every prisoner will go to it first and will there be observed for so long as may be necessary to discover the causes of his wrongdoing and to establish a profit- able prognosis. Three or four months are expected to be the average stay of an offender in this institution. From the clearing-house offenders will be sent to the other prisons of the State. These at present num- ber four (excluding the present Sing Sing, which is to be replaced) : two industrial prisons at Auburn and Clinton, an agricultural prison at Great Meadows and a hospital for the criminal insane at Dannemora. To them will be added a special institution for defective delinquents. It is expected by Dr. Glueck and his as- sociates that the classification of prisoners at the new reception prison will, for purposes of administration, divide offenders into five more or less well defined groups. These do not include "the accidental offender who, before coming to prison, was well able to earn his livelihood by honest means." The five prisons can then be made to meet the needs of these groups. Fol- lowing is a description of each group, with the insti- tution to which it will be assigned : TREATMENT 331 1. The normal prisoner who is capable of learning a trade. This group embraces the normal young adults who are still in the formative period of life and who could be benefited materially by being taught a useful trade, should they possess no trade upon admission to prison. This grpup will be assigned to the two industrial prisons at Auburn and Clinton. 2. The normal prisoner who is more or less advanced in years, whose occupation has been that of ati unskilled laborer and who would make himself most useful to the state as well as derive the most benefit to himself by agricultural work. This group will be assigned to the agricultural prison at Great Meadows. It will also be used in the housekeeping of the various institutions. 3. The insane delinquent whose presence in prison should be recognized as early as possible so as to obviate, on the one hand, the interference with the proper regime of the institution which is bound to take place as a result of his presence and, on the other hand, so as to aflford the insane prisoner proper treatment as early as possible when therapeutic measures may have some beneficial effect. The insane delinquents who require treatment of a more or less permanent nature in a hospital for the insane will be trans- ferred to the Hospital for the Criminal Insane at Dannemora, while those suffering from transitory mental disturbances that promise recovery under proper treatment will be treated in a specially constructed psychiatric pavilion at the reception prison. 4. The defective delinquent. The presence of these prison- ers among the normal population of the prison seriously inter- feres with the proper discipline of the institution, and they should be recognized on admission and segregated elsewhere. The defective delinquent is found in large numbers among recidivists. A certain number are unteachable and incapable of benefiting much from any form of procedure and will ultimately have to be kept under custodial care more or less permanently. This group will be assigned to the special institution for defective delinquents to be provided. 5. The psychopathic delinquent. Prisoners of this type are the most troublesome element in a penal institution. They are subject to outbreaks of pathological emotionalism and excite- ment, and cannot be given proper care in the average prison. Some psychopaths break down completely under the stress 332 PUNISHMENT AND REFORMATION of imprisonment and require treatment in a hospital for the insane; others will eventually have to be segregated more or less permanently ^ in the institution for defective delinquents.^ The accompanying chart shows this plan in diagram. The erection of the reception prison has been begun. How such a plan, if carried out, will be handicapped by the necessity of using existing plants, built with the idea of. giving uniform treatment to all inmates, re- mains to be seen; administrative expedients can over- come this difficulty to some extent. Two other factors will largely determine the success of the plan. One of these is the flexibility of commitment and transfer ; it should at all times be easy to remove an offender from one prison to another if it appears thiat he will make a better response there. The other factor is the character of the administrative force in the various prisons. A force capable of making a great success in one of the industrial prisons might fail utterly if placed in charge of the institution for defective delinquents. From wardens down, each group of employees should be chosen with a view to its fitness for the particular situ- ation it will have to face. Interesting in this connection is a plausible contention recently made with considerable vigor^ that none but physicians, or persons with the training of physicians, ^ "So radical a procedure as permanent segregation," says Dr. Glueck, "should never be resorted to until a competent board of inquiry has so recommended as a result of thorough scientific investigation into the problem involved." 2 Adapted from "Types of Delinquent Careers," by Bernard Glueck, M.D., in Mental Hygiene for April, 1917, pp. 171-173. 3 See, for example, a paper entitled "The Desirability of Med- ical Wardens for Prisons," by E. E. Southard, M.D., in the "Proceedings of the National Conference of Social Work for 1917," p. 589. "^yfcs cf (Pffoni