ifc£j>K a. ^:^Z^>^ 
 
\ 
 
i 
 
I 
 
ON THE 
 
 PENITENTIARY SYSTEM 
 
 IN THE , 
 
 UXlTEl) STATES, 
 
 PREPARED UNDER A RESOLUTION OF THE 
 
 SOCIETY FOR THE PREVENTION OF PAUPERISM, 
 
 IN THE 
 
 CITY OF ME FF- YORK. 
 
 8ai»l«l»»l»|»i g 
 NEW-YORK : 
 
 PRINTED BY MAHLON DAY, 
 No. 372, Fkarl-Stbset. 
 
 1822. 
 
5oB 
 
The Chairman of the Committee appointed to present a 
 • General View of the Pknitentiary System, as it 
 
 now exists in the United States^ respectfully presents 
 
 the following 
 
 REPORT: 
 
 The importance, as well as the intrinsic diflSculties of the sub- 
 ject, committed to the research and fidelity of the Committc , 
 have subjected them to formidable embarrassments in every 
 stage of their investigation. A voluntary association of indi- 
 viduals, to ascertain the operation of municipal ordinances and 
 regulations, and to trace out the effects and detect the errors of 
 various systems of criminal law, throughout a country of vast 
 extent, act under restraints not incident to boards of inquiry 
 clothed with public authority, sustained by adequate means, and 
 acting under auspices compatible with the moral importance of 
 the undertaking. But until the legislatures of the different states, 
 and the constituted authorities of the country, encourage and 
 support those regular systems of examination and observance, 
 that are competent to correct and prevent public evils ; until 
 they learn to avoid the errors of other governments and other 
 countries, (a) in remaining inactive and indifferent, until awa- 
 kened to a sense of duty by the loud cries of deep and compli- 
 cated grievances ; we must repose our hopes and rest our 
 confidence, on the philanthropy, the patriotism, and the zeal of 
 individuals. 
 
 (a) Bishop Burnet, in bis history of his own times, more than et tentury sigd. 
 appealed to the attention of the House of Commons, concerning the Poor Laws 
 of England. He inculcated the necessity of their immediate correction. His 
 voice was not heard. The paupers of Great-Britain now co^t h»r not far from 
 |60,000,000 aiujually. Vi«le vot. iv. p. W5. 
 
By the Penitentiary System, as treated of in this Report, the 
 Committee would refer to tlie means resorted to in the different 
 States of the Union, to prevent crimes and misdemeanors, to 
 reform convicts, and to promote public security. These means 
 include the adoption of Criminal Codes, the erection of prisons, 
 and the confinement of convicts to hard labour within their 
 precincts. 
 
 The history of nations teaches us, that the welfare of em- 
 pires may be frequently endangered by sudden revolutions in 
 popular opinion, on subjects which embrace the general and 
 individual relations of society. Wild and speculative doctrines 
 will be occasionally started that strike at the abrogation of ex- 
 isting systems of civil polity, and silently and rapidly acquire 
 strength and stability, until the number and zeal of their vota- 
 ries become fob formidable for the effectual appeals of reason 
 and experience. A period has arrived in this country, which 
 fully illustrates this position. Without a due regard to facts and 
 reflection, there are many in the United States, who advocate 
 the renunciation of the Penitentiary System, and consequently 
 a change in our Criminal Jurisprudence that will increase the 
 severity of its character. Abstaining from all strictures, at pre- 
 sent, on the tendency and singularity of such an opinion, we 
 would remark, that communities seldom retrace their steps in 
 the trials of experience, until they reach their last extremity ; 
 and whether it is now decided to renounce or to retain this Sys- 
 tem, the determination will probably settle, for ages, the spirit of 
 our laws, in relation to crimes and punishments. It may there- 
 fore be expedient for the Committee, in the first place, briefly 
 to advert to the rise of the Penitentiary System in the United 
 States. Previous, however, to doing thi§, they feel constrained 
 to make a few reflections on a subject intimately connected with 
 it — the lamentable neglect of mankind, in the difierent periods 
 of human society, concerning the punishment and prevention 
 of crimes. 
 
 Unfortunately for the deepest interests of humanity, and for 
 the moral character of nations, Criminal Jurisprudence has not 
 
6 
 
 attmcted the attention, and commanded tbat anxiety which its 
 importance has demanded. This fact is visible in the history 
 of every civilized people, both of ancient and modern times. 
 Wars have been waged, and vast and bloody revolutions accom- 
 plished, for the acquisition and establishment of political rights ; 
 laws have been invented and improved, from one age to ano- 
 ther, for the security of property and the enjoyment of civil im- 
 munities ; moral and relative obligations have been defined with 
 a nicety that strongly marks the perfection of human discrimi- 
 nation ; but that science which cautiously and successfully gra- 
 duates punishments to offences, and, in the greatest possible de- 
 gree, prevents the perpetration of crimes, is still in its infancy. 
 
 In arbitrary governments, where the arm of power is the 
 rule of law, despotism never pauses in her march over the lives 
 and fortunes of submissive millions, to adjust a scale of punish- 
 ment to suit the atrocity of guilt, or to provide for the reforma- 
 tion of character. We may look in vain among the populous 
 and refined nations, that once flourished in the fairest portions 
 of Asia, for any exceptions to this remark worthy of conside- 
 ration. Ancient India, so renowned for her civilization, her 
 wealth, her ingenuity, her arts and her sciences, and filled, as 
 she is, with the wrecks of power and splendor, was cruel in her 
 administration of justice ; and one of the earliest historians 
 induces us to believe, that crimes were punished with that 
 severity that destroys all proportion between the punishment 
 and the aggression.* The laws of the most polished states of 
 Greece, not excepting Athens, when taken as a body, were 
 grossly defective ; (6) and during the most illustrious ages of 
 
 * '• Punishment" (according to a striking personification in the Hindoo Code) 
 '• is the magistrate ; punishment is the inspirer of terror ; punishment is the 
 nourisher of subjects ; punishment is the defender from calamity ; punishment 
 is the guardian of those who sleep ; punishment, with a black aspect and a red eye, 
 terrifiei the guUly " Rob. Disqui. on India. 
 
 (6) The Spartans were a martial and sanguinary people, and under the sem- 
 blanae of a Republic, evinced a spirit of arbitrary government and punished 
 crimes with an unsparing vengeance. Turn vero apud multos populo. et domi- 
 nus in servos et parentibus in liberos mansit jus puncendi plenum, etiam ad 
 mor rra u»que sic Sparta Ephoris licuit civini occidere extra judicium- Gro. 
 
6 
 
 the Roman Commonwealth, inflictions for offences indicated 
 the triumpli of military ferocity and summary revenge, rather 
 than the adoption of mild, just, and rational laws, to restrain 
 and prevent the commission of offences. The conquerors of 
 the world were too intent on the subjugation of mankind, to 
 settle nice and refined rules of human conduct, and to restraia 
 the evil propensities of a populous community, by prudent, 
 sound, and effective restraints. 
 
 While the civil law presents us with a system of rules in rela- 
 tion to the rights of persons and the rights of things, which 
 deserve admiration ; while private wrongs and their remedies 
 are defined with a subtlety, and an exactness, that in many 
 respects, may still challenge competition ; that porfion of it 
 which falls under the head of Criminal Jurisprudence, presents 
 a dark, cruel and implacable character. Punishments were dis- 
 proportionate to offences, as well as relatively defective in their 
 graduation; the accused was not confronted with the accuser; 
 trial by jury was unknown ; and the means of ascertaining the per- 
 petration of crimes, rigorous, partial and unjust. The rack, the 
 wheel, torture, crucifixion, and many other barbarous expe- 
 dients, were common in the treatment of culprits, (c) 
 
 In looking into the Feudal laws, we look into the operations 
 of a vast military system, where the field, and not the forum — 
 where the sword of conquest, and not the scales of justice, is 
 most perceptible. Single combat, the ordeal by fire and ivater, 
 and the extinguishment of public offences by pecuniary com- 
 pensation, distinguish its history. 
 
 (e) The whole front of Roman Criminal Law, presents nothing but odious tinW 
 •f sanguinary horrors, where every step of the Legislature can be traced im 
 blood. The iron crown, the agonizing wheel, the bed of torture, present them- 
 selves to the abhorrent eye, on every side ; their ultimate punithments, savages 
 in their nature, and foreign to their end, which is example, and not the pain of 
 the individual. Delaceration by wild bea^tii, protrusion from the Tarpeian Rock, 
 immersion, cruci6xiou and scourging to death, are less shocking iii narration to 
 our feelings, than the previous engines used to extort confession from the prison* 
 «r, and to load with guilt the unfortunate object of imperial reaoataeat, Browoe'e 
 Civ. and Adm. Law, p. it, V. j. 
 
7 
 
 As we turn from this offspring of fierce and barbarous ages 
 to the Canon law, that was principally composed from tl.>e de- 
 crees of Ecclesiastical councils, the edicts and decretals of the 
 Pope, and the writings of the Papal Fathers and moulded to 
 the exigencies of a great spiritual empire, by the subtlety and 
 adroitness of the ecclesiastics and the commands of the chief 
 Pontiff, we find little worthy of commendation amid the excorn- 
 raunicatinns, anathemas, censures, degradations, forfeitures, and 
 other similar resorts, which formed the main reliance for the 
 prevention of public offences. The overt sale of indulgencies 
 to commit crimes of the darkest nature, not excepting robbery, 
 arson and murder, throughout the papal dominions, in the 16th 
 century, went far to produce the overthrow of that power, which, 
 from the Vatican, overawed the kings and nations of the earth, 
 affords a striking comment on this point. 
 
 The practice of expiating crimes by a specific recompence, 
 seems to have been a favorite remedy in many periods of socie- 
 ty. Homer incidentally mentionsin his Illiad, that in ancient 
 Troy, even murder, the blackest of offences, was punished by 
 fine, and this information is again repeated in his description of 
 the shield of Achilles. Tacitus tells us that among tlie ancient 
 Germans, injuries were atoned for by compensation, and homi- 
 cide had its price, which, when once paid, appeased the ven- 
 geance of relations and friends. The Salic law settled various 
 prices for different kinds of crimes ; and, according to Hume, 
 among the anglo Saxons, the forfeiture for killing a king, a 
 bishop and alderman, a thane, a sheriff, a clergyman or a pea- 
 sant, was settled by law, in the coin of the times. Not only was 
 the aggressor compelled to pay, but the relations and parties 
 injured, obliged to accept, of the penalty incurred. Blark?tone 
 informs us, that formerly in Ireland, in case of murder, the Bre- 
 hon or Judge was authorized and accustomed to compound 
 between the murderer and the friends of the deceased, in a 
 manner peculiar to that country. The lex talionis or the law of 
 retaliation, in case of corporeal injuries, has also been a prevailing 
 feature in the criminal systems of many civilized nations, and 
 
8 
 
 one deformity 6f person, when the effect of violence has been 
 compensated by visiting the like mark and suffering on the per- 
 son of another, the offender. Among the Jews, the Egyptians, 
 and the Athenians, this rule of punishment was adopted in cer- 
 tain cases. 
 
 When the nations of the European continent, emerged from 
 the barbarism of the dark ages, the civil law which had slum- 
 bered in obscurity for centuries, awoke with the restoration of 
 the arts and the sciences. It became the foundation of national 
 law in Europe, and the municipal law of many countries, under 
 the limitation of local customs and ordinances. Its qualified 
 dominion is apparent, as we look into the histories of Germany, 
 Holland, France, Italy, Portugal, Spain, and some other states. 
 In criminal proceedings, the process, as well as the rules and dis- 
 criminations of the civil law, were in a great degree followed. 
 Inquisition, denunciation, accusation, imprisonment, the oath of 
 purgation, and the rack, were adopted. The writer before allu- 
 ded to, ft/j has forcibly remarked that there is scarcely an abuse 
 of the criminal law, which in the last or preceding centuries 
 drew down on its perveters the vengeance of an injured people, 
 that was not suggested by the despotic genius of declining Rome. 
 Had the Corpus Juris Civilis, while it applied the principles of 
 jnoral rectitude to the extended variety of human concerns, been 
 well adapted to the prevention ol crimes, and the reform of 
 criminals, far different would have been the science of Criminal 
 Jurisprudence among modern civilized nations, at the present 
 day. 
 
 For many centuries, after the revival of letters, Criminal Ju- 
 risprudence continued nearly stationary on the continent of Eu- 
 rope. The records of her criminal courts were deformed by 
 cruel, rigorous, and impolitic sentences, and humanity was 
 shocked and outraged, by awful and sanguinary punishments. 
 Dungeons were multiplied and rendered the unmerited man- 
 sions of ignominy, sufferings and despair j torture and the rack 
 
 (<0 Brown's Civ- and Adni- Law. 
 
9 
 
 were applied with little discrimination, and no just relation was 
 preserved between the offence and the punishment. Reasons of 
 state and religious bigotry, added stimulus to the vindictive 
 temper of sovereigns, courts, and tribunals. But during the 
 18th century a new and illustrious era broke upon the world. 
 A combination of enlightened philosophers, united by the ties 
 of genius, zeal and humanity, lifted the curtain which had so 
 long concealed the horrors and abuses of different existing crimi- 
 nal codes, and opened the eyes of nations to the deep rooted and 
 flagrant errors of the systems, which they sustained. Their ap- 
 peals to public conviction, were effectual to no inconsidera- 
 ble extent, and the moderation of some punishments and the 
 abolition of others, succeeded. Torture was banished from 
 Germany, Sweden, Saxony, Poland. Denmark, and Russia. 
 France (e) enlightened and polished France, with a character 
 illustrious for valor, for learning, and the arts, was among the 
 last to follow this mild and praise-worthy example, if we except 
 Spain and Portugal, whose annals are stained with blood, and 
 whose moral condition requires deep and radical changes to re- 
 form the abuses of laws and customs, (f) The attempts made 
 in Russia and in one of the Italian states to effect the permanent 
 abrogation of all capital punishments, proceeded from this be- 
 nevolent spirit for reformation. 
 
 (e) The laws given to France by Napoleon reflect more credit on liis public 
 career than all his conquests- From the time his criminal code was adopted, 
 crimes rapidly diminished- The following facts are taken from the report of the 
 Minister -of the Interior in 1813. In 1801 the population of France was 34- mil- 
 lions : that year produced 8500 criminal cases in which there were implicated 
 J2,400 persons. In 1811a population of 42 millions offered but 6000 criminal 
 cases in which were implicated 8600 persons. In 1801, 8000 were sentenced ; in 
 1811, 5,500; in 1801 there were 88 sentences to death, in 1811 only 392 Louis 
 18th has had the good sense to adopt the code of Napoleon, with a few altera- 
 tions. 
 
 (/) The last question concerning torture was brought up in England in the reign 
 of Charles the first by the Bishop of London in the case of Felton, for the murder 
 of the Duke of Buckingham. It was introduced in the time of Henry the sixth. 
 In the case here mentioned, the 12 Judges unanimously decided that it was con- 
 trary to the laws of England. Fos. C. Lew. 244. 
 
 2 
 
10 
 
 It is with regret that we are here compelled to advert to Eng- 
 land, with the deepest sentiments of reprthension. While she just- 
 ly boasts of a system of jurisprudence in civil transactions, that 
 applies to all the exigencies of civilized society, that guards and 
 secures all the rights, incident to a state of public and private 
 security, and one that is founded on the broad basis of utility, 
 her criminal code presents us with a melancholy spectacle of 
 cruelty, error, and neglect. Not only is it inadequate to the 
 ends which it has been designed to accomplish ; but it is pro- 
 ductive of the very evils which it would remedy. The land of 
 Coke, of Hale, of Foster and Mansfield, whose powerful and 
 comprehensive minds extended the boundaries of legal science, 
 and enriched and adorned it with truths and principles that were 
 drawn from the depths of human reason, at this late day retains 
 a system of laws that awards death for about twoliundred offen- 
 ces, and that draws no distinction between the most atrocious 
 murders and the stealing of a guinea, or the cutting down a for- 
 est tree. 
 
 We cannot conclude these remarks on the subject under con- 
 sideration, with more propriety than by adopting the judicious 
 observations of the learned and elegant Commentator on the 
 laws of England. " In proportion to the importance of criminal 
 law, ought also to be the care and attention of the Legislature 
 in properly forming and enforcing it. It should be founded up- 
 on principles that are permanent, uniform, and universal ; and 
 always conformable to the dictates of truth and justice, the feel- 
 ings of humanity, and the indelible rights of mankind, though it 
 sometimes (provided there be no transgression of these external 
 boundaries) may be modified, narrowed or enlarged, according 
 to the local or occasional necessities of the state which it is 
 meant to govern. And yet either from a want of attention to 
 these principles, in the first concoction of the laws, and adopting 
 in their stead the impetuous dictates of avarice, ambition and 
 revenge, from retaining the discordant political regulations, 
 which successive conquerors or factions have established, in the 
 rarious revolutions of government ; from giving a lasting effica- 
 
11 
 
 cy to sanctions that were intended to be temporary, and made 
 (as Lord Bacon expresses itj merely upon the spur of the occa- 
 sion ; or from, lastly, too hastily employing such means as are 
 greatly disproportionate to their end, in order to check the pro- 
 gress of some very prevalent offence ; from some, or from all of 
 these causes, it hath happened that the Criminal Law is in eve- 
 ry country of Europe, more rude and imperfect than the civil. 
 I shall not here enter into any minute inquiries concerning the 
 local constitutions of other nations : the inhumanity and mista- 
 ken policy of which have been sufficiently pointed out by inge- 
 nious writers of their own. But even with us, in England where 
 our crown law is with justice supposed to be more nearly advan- 
 ced to perfection ; where crimes are more accurately defined, 
 and penalties less uncertain and arbitrary ; where all our accu- 
 sations are public, and our trials in the face of the world ; where 
 torture is unknown, and every delinquent is tried by such of his 
 equals, against whom he can form no exception nor even a 
 personal dislike : even here we shall occasionally find room to 
 remark some particulars that seem to want revision and amend- 
 ment." (h) 
 
 From this partial sketch concerning the Criminal Jurispru- 
 dence of other countries, we turn to the United States. We turn 
 to our country too, with those grateful emotions that are inspired 
 by just causes of self-gratulation. No country on the face of 
 the globe, of the extent and population of the American nation, 
 presents a criminal system so mild, so rational, and so well pro- 
 portioned to its ends as ours. It attracts admiration among the 
 most polished states of the world, receives the eulogiums of 
 philosophers, and philanthropists, and with our free and popu- 
 lar institutions, and with the sedulous attention of wise legisla- 
 tors, may, ere long, command the imitation of older and more 
 powerful empires. Strong moral causes have contributed to the 
 contrast which we display between ourselves and other nations, 
 in this respect. Many of the first settlers of this country were 
 
 {h) Black. Com. Vol. 4, p. 3. 
 
 2* 
 
12 
 
 men of enlarged views and vigorous minds ; many had left the, 
 shores of the other continent with a spirit of free enquiry and 
 with a repugnance to irrational and sanguinary laws of every 
 description. They came to a land, where the theatre of experi- 
 ment was boundless. The relations of civil society were few 
 and simple, and the complex abuses of long existing systems, 
 in social order, were unknown. Some bold advances towards 
 the adoption ol a mild and temperate Criminal Code, were 
 made before the Revolution ; but it was that great and momen- 
 tous event which divested the monuments of European polity 
 and jurisprudence of a false venerati n, that expanded the pub- 
 lic mind to a more acute, comprehensive and enlightened view 
 of public rights and their security. In the Constitution of the 
 United States, as well as in the se\ e.-al Slate Constitutions, con- 
 stant regard is paid to the preservation of life and the security of 
 fundamental principles, (g) The statutes of our different Le- 
 gislatures, which followed the establishment of the national go- 
 vernment, breathed a spirit of mildness and humanity, unknown 
 to the nations of Europe. Public investigation was unshackled, 
 and the public mind susceptible of new and deep convictions, 
 upon subjects connected with the general interest, and the moral 
 condition of the community. The writings of eminent advocates 
 on the other side of the Atlantic for mild punishments, met with 
 an ardent admiration. Many able and luminous disquisitions 
 were written in this country, to advance the triumph of humane 
 laws, and in some places associations of distinguished men were 
 formed for the same purpose. 
 
 From these, and other kindred cause!;, arose the PENITEN- 
 TIARY SYSTEM in the United Slates. It was the offspring 
 of this country, and established on the broad principles of hu- 
 manity. It was believed by its founders, that sanguinary pun- 
 ishments were not the most subservient to the ends of criminal 
 justice, and that a system of laws that would tend to give a mo- 
 
 (g) See Appendix ( \) where those parts of the atatc Constitutions, relating to 
 ♦his subject, are given in one riew. 
 
18 
 
 ral dominion over the mind and bring It to a sense of its erroi'a 
 and turpitude, would prove more efficacious in preventing offen- 
 ces, than severe corporeal inflictions : that a system of laws 
 which should prescribe confinement, hard labour, and moral 
 discipline and instruction, would accomplish this purpose, and 
 send forth convicts at the termination of their confinement, as 
 useful members of society. 
 
 Before the Committee proceed to give (heir views of the 
 tendency, defects and reform of the Penitentiary System in 
 this country, a brief sketch of its rise and progress may not be 
 unproductive of benefit. 
 
 To William Penn, a name venerable and distinguished in the 
 history of the new World, and one which will ever be associa- 
 ted with the recollection of ardent and successful effurts to im- 
 prove the condition of mankind, may be traced the first steps 
 towards that reformation in Penal jurisprudence to which we 
 have alluded. The British government appears to have been 
 anxious to extend her Penal laws, or at least the spirit of them, 
 to her North-American Colonies. In the Royal Charter, grant- 
 ed to the founder of Pennsylvania, by Charles II. it is directed 
 that the laws of the coloqy, in relation to felonies, should bear 
 a similitude to those of the mother country ; and even the fu- 
 ture Provincial Legislatures were constrained to conform to the 
 British system in their future enactments. But William Penn 
 was a man of firm purpose, of strong mental powers, and of an 
 original cast of mind. He thought with freedom on every sub- 
 ject, and his acts comported with his conclusions. He set at 
 defiance the arbitrary injunctions in the Royal Charter relating 
 to the punishment of crimes. First he abolished forfeitures in 
 cases of suicide, and the deodands which followed the perpetra- 
 tion of murder. He then formed an independent Criminal Code, 
 in which capital punishment for robbery, burglary, arson, rape, 
 forgery, and levying war against the governor, was abolished, 
 and alone retained in cases of homicide. Imprisonment, with 
 hard labour, and in some Instances the infliction of corporeal 
 punbhrnent were cubstituted. In trials for murder, where the 
 
14 
 
 jury retnmed a verdict of guilty, the record of conviction was 
 sent up to the Executive for supervision. This Code, wor- 
 thy of one of the greatest legislators of the new world or the 
 old, was transmitted to England and rejected by Queen Ann 
 and her council. But the Colonial government conducted 
 with a noble resolution, and still retained it in defiance of royal 
 displeasure, until 1718, with the most salutary effects. Under 
 the reign of George I. after much trouble and confusion in the 
 Colony, the mild system of William Penn was surrendered un- 
 der many aggravating circumstances, in which the hand of op- 
 pression is too visibly seen. A new Criminal Code was given 
 to Pennsylvania, which, with subsequent additions, rendered six- 
 teen species of crime punishable with death ; also extending ca- 
 pital punishment to all cases of felony on second conviction, 
 excepting larceny. No further change ensued, until the Revo- 
 lution. That august event burst the fetters of colonial law. In 
 the Constitution of Pennsylvania, framed in 1776, the Legisla- 
 ture is ordered " to reform the Penal laws — to make punish- 
 ments less sanguinary, and, in some cases, more proportionate 
 to the offence." In 1786, a new Criminal Code was created, and 
 capital punishment was retained in four of the highest felonies — 
 treason, murder, rape, and arson. But what derogated altoge- 
 ther from its merits, was the infliction of severe corporeal punish- 
 ment, by whipping in public, and by compulsion to hard labour 
 with the head shaved, and with other external indignities. The 
 tendency of this system was obvious. It roused the strongest 
 feeling of public aversion, and elicited the censures of such men 
 as Benjamin Franklin, Benjamin Rush, and William Bradford. 
 —These personages will be ranked, to the close of time, among 
 the ornaments of our species, and among the benefactors of our 
 race. Caleb Lowndes of the society of Friends, whose biogra- 
 phy is the history of benevolence, displayed in its most simple 
 and effective character, aided with unreserved ardour in the at- 
 tempts at reformation. In 1790, a change took place in the 
 Penal laws of that state. The State Prison at Philadelphia was 
 erected. Here commenced the Penitentiary System in the Uni- 
 
15 
 
 ted States, wbicb has now been in existence about tbirty years. 
 As we shall mention, tbe peculiar construction of the Penitentia- 
 ries in this country, in their proper order and in a succinct man- 
 ner, nothing need be said here in relation to the internal ar- 
 rangement and police of the one now mentioned. We are now 
 showing the rise, and not the defects of tbe system. 
 
 In 1794, tbe example of Philadelphia, awakened tbe philan- 
 thropy of sereral citizens of the city and state of New- York. 
 Previous to this period, no views on the subject of the Peniten- 
 tiary System were entertained in this section of the union. Du- 
 ring tbe year here mentioned. General Schuyler and Thomas 
 Eddy, without any other business, visited tbe Philadelphia pri- 
 son, for the purpose of forming a more accurate knowledge of its 
 tendency, its structure, and its internal arrangements. The view 
 made a favourable impression on their minds, and on their re- 
 turn to New- York, General Schuyler, who was one of tbe most 
 liberal minded, enterprising, and illustrious founders of this 
 Commonwealth, and who was then in tbe senate of this state, 
 immediately drafted a law for tbe erection of a Penitentiary in 
 the city of New-York. This bill " for making alterations in tbe 
 criminal law of this state, and tbe erecting of State Prisons," 
 was brought forward, and ably and successfully sustained by 
 Ambrose Spencer, the present Chief Justice of tbe state of New- 
 York, and finally became a law on tbe 26tb of ]VIarcb, 1796. (j) 
 By this law, two State Prisons were directed to be established — 
 one at New- York, and one at Albany. The idea of a Peniten- 
 tiary at Albany, was afterwards abandoned, and the whole ap- 
 propriation expended in New-York, under a commission, con- 
 sisting of Matthew Clarkson, John Murray, jun. John Watts, 
 Thomas Eddy, and Isaac Stoutenburgb. With the passage of 
 tbe law here alluded to, an important amelioration took place in 
 our criminal code. Previous to tbe year 1796, there were no 
 less than sixteen species of crime, punishable with death, in this 
 
 (J) Vide Journals Sen. and account of the Penitentiary House in the City of 
 New-York. 
 
16 
 
 state. Corporeal punishment was resorted to, and in many cases, 
 where felonies were not capital, they became so, on their second 
 commission. By the law 1796, providing for the erection of 
 the New-York Penitentiary, capital punishments were abolished 
 in fourteen cases, for imprisonment during life, or for a shorter 
 period, and only retained for treason and homicide. This re- 
 form has since been advanced still further ; but some laudable 
 attempts have failed of success. In 1804, eight years after the 
 erection of the New- York Penitentiary, Thomas Eddy framed 
 a law " for erecting a Prison for solitary confinement in the city 
 of New- York.." This was to contain sixty cells of the dimen- 
 sions of 7 feet by 8, where all convicts for petit lauceny, and 
 other minor offences, were to be confined for a short period in 
 solitude, without labour, and on a low diet. Had this plan suc- 
 ceeded, it was contemplated to divide the state into districts, 
 and to erect a similar prison in each section. By an alteration 
 in the above bill, the erection of the Prison was left to the dis- 
 cretion of the Corporation of the City of New-York, who ap- 
 proved of the system, but never executed the law. Good effects 
 were however produced by its passage. A copy of it was trans- 
 mitted to Mr. Colquhoun, the author of the Police of London, 
 the Police of the River Thames, and other celebrated works, ac- 
 companied by a letter to the same distinguished person, from 
 Thomas Eddy. These were banded to Lord Sidraouth, then 
 Secretary of the Home Department, who decidedly approved of 
 the principles which it adopted ; and in a few years afterwards, 
 prisons were constructed in England upon the plan which it 
 embraced. On this subject more will be said in the se- 
 quel. 
 
 The State Prison in Richmond in the Commonwealth of Vir- 
 ginia, was erected in the year 1800. Convicts for homicide in 
 the second degree, manslaughter, rape, grand and petit larceny, 
 burglary, robbery, forgery, and other inferior crimes, are doom- 
 ed to this Penitentiary. The State Prison in Charlestown, in 
 the Commonwealth of Massachusetts, was erected in 1804 with 
 a correspondent change in the penal code of the state. The 
 
IT 
 
 State Prison at Baltimore, in the State of Maryland, was erec- 
 ted in 1811. The State Prison at Windsor in the State of Ver- 
 mont, was erected in the year 1603. The State Prison at Con- 
 cord, in the State of New-Hampshire, was finished about 1812, 
 and the one at Cincinnati, in the State of Ohio, was established 
 in 1616. There are also, Penitentiaries in New-Jersey, Ten- 
 nessee, and Kentucky. The Penitentiary in the State of Con- 
 necticut, differs from all others in the United States, and was 
 not entirely the effect of the system cemmenced in Pennsylva- 
 nia. We have not, therefore, regarded its priority in point of 
 age. About a century ago a company of German miners, open, 
 ed what was called the Copper, or Simsbury mines. The ex- 
 cavation created by procuring the ore is about 70 feet in its 
 greatest depth, and about one hundred feet in length, varying 
 from ten to fifty feet in width, and from five to fourteen feet in 
 length. About the year 1778, the state made use of this cavern 
 as a prison for felons. In 1790, it was rendered a State Prison 
 for convicts, by the Legislature The necessary walls, buildings 
 and workshops, were erected, during the same year. No fe- 
 male prisoners are ever sent here, and a female convict is indeed 
 a rare spectacle in this state ; they are sent to the country work 
 house, if ever arraigned and convicted. Burglary, arson, horse- 
 stealing, rape and forgery, are the crimes punished by sentence 
 to this place. Previous to the period when this prison was pre- 
 pared, these offences were punished by death, cropping the ears, 
 branding on the forehead, whipping in public, or the pillory. It 
 may therefore be said to have produced a change in the crimi- 
 nal code of Connecticut, which has received the long and con- 
 stant sanction of public approbation up to this day. (k) 
 
 The'^e we believe include all the Penitentiaries that have been 
 erected in the United States, with the exception of one at Pitts- 
 burgh in the State of Pennsylinvania, and one at Auburn in the 
 State of New-York, which we shall notice in the sequel. 
 
 We have now given a sketch of 'the rise and progress of the 
 
 (t) Vide Mr. Shelden's letter to Gov. Woolcol in the appendix and Gov. W's. 
 >etter also. 
 
 3 
 
18 
 
 Penitentiary System of the United States. It was first introdu- 
 ced, and has since been cherished, for the important purpose of 
 preventing crimes and offences, and for reforming convicts. The 
 grand question which now arises, is, has the system answered 
 the expectations of its founders and advocates ? To this inqui- 
 ry but one answer can be given. — It has not. Two other inqui- 
 ries, then, naturally arise : First, Why has the Penitentiary Sys- 
 tem failed of producing its expected ends .'' Secondly, Can it be 
 so modified and improved, as to produce the results expected by 
 its founders ? 
 
 We shall contend that the Penitentiary System is a practical 
 System, and that its present defects are separable from it and 
 can be eradicated. We must still cherish the firm and unsha- 
 ken conviction, that it is not beyond the bounds of human effort 
 to devise a system of punishment, that will combine in its ten- 
 dency, the prevention of crimes, and the reform of convicts. 
 We do not believe that civilization has yet effected all the moral 
 changes and improvements, that can be wrought in the consti- 
 tution of human society, or that laws and government have 
 been carried to the utmost limits of perfection. Nor do we 
 admit, that even in the Penitentiary System, there has been 
 that total failure which some have been pleased to assign, al- 
 though from the perversion of its principles, it has disappointed 
 the hopes of its early friends. 
 
 The divisions of this Keport will naturally fall under the fol- 
 lowing heads : 
 
 I. What are the defects of the Penitentiary System of the 
 United States, and why has it failed to answer the objects of 
 its establishment i* 
 
 II. In what manner can the defects be remedied, and how can 
 the System be rendered effectual .<* 
 
 III. If the Penitentiary System is to be abandoned in the Uni- 
 ted States, to what substitute shall we resort 
 
 The Committee confidently hope that the investigation of 
 these problems will result in a firm conviction that it is our duty 
 to adhere to the Penitent &ry System in the United States, and 
 
19 
 
 to look to it, under new improvements, as a national blessing, 
 when compared witli any other system of criminal law that can 
 succeed it 
 
 I. The present defects of the Penitentiary System may he 
 included in this enumeration : 
 
 1. Frrors in the construction of our prisons. 
 
 2. Want of classification among the convicts. 
 
 3. Want of room. 
 
 4. The too frequent intervention of pardons. 
 
 5 Want of a school for Juvenile offenders, and of a system of 
 ^loral and religiou; instruction. 
 
 6. The too frequent change of Superintendants and Governors- 
 
 7. Want of proper diet. 
 
 8. Too much rpgard to revenue. 
 
 1. The errors in the construction of our State Prisons, have 
 more than once been perceived and pointed out, by those who 
 have cherished a deep interest in the improvement and perfec- 
 ticn of the Penal Codes of this country. The place of confine- 
 ment of the Philadelphia Prison occupies a lot of 400 feet by 
 200 feet, on which is erected a large stone building, 184 feet 
 long on the north side, two stories high, divided into rooms of 
 equal dimensions of 20 by 18 feet. The New- York Prison is 
 204 feet long, a wing projecting from each end, and from these 
 wings two other smaller wings. The whole fabrick is of the 
 Doric order, and contains 54 rooms, 12 feet by 18, for prisoners, 
 sufficient for the accommodation of 8 persons each. The 
 Massachusetts Penitentiary consists of a principal building, 66 
 feet long and 28 feet wide, containing five stories and two wings, 
 each 67 feet long and 44 wide, making in the whole a building 
 of 200 feet. The rooms of the two upper stories are 17 feet 
 by 11, and the cells of the two lower stories are 11 feet by 8. 
 
 The cells in the ground story are assigned to convicts for soli- 
 tary confinement, and for violating the internal police of the 
 prison. It is unnecessary to describe the internal and external 
 structure of all the Penitentiaries in the United States. The 
 description of the oldest already mentioned may be taken as a 
 
20 
 
 data. The Virginia. Maryland, New-Hampshire, Vermont and 
 Ohio Prisons, do not so deviate from them in any particular, as 
 to redeem the System from the errors which have been enu- 
 merated, and which we shall illustrate. The rooms are all too 
 large, and none of the prisons constructed on a plan to prevent 
 the constant intercourse of criro*nals er to divide and keep then 
 in distinct and proper classes. 
 
 Here is one of the fundamental errors, that has defeated the 
 grand object of the Penitentiary System in the United Slates. 
 This is the greatest of all the defects that time and experience 
 have revealed, in the lapse of thirty years. It accommodates u.» 
 internal police of our prisons, to the ruling propensities of huo.an 
 nature and gives indulgence to the leading passions and mch- 
 nations of man. It baffles the adoption of aH.Pt''er rules and^ 
 principles of discipline and organization, and we might as well 
 attempt to raise a superstructure without a fpundationj as . 
 make efforts for the perfection of a Criminal Code, while it» first;, 
 requisite is wholly wanting. Wi to 
 
 The erroneous construction of our Penitentiaries, bas 
 until recently, attracted that deep attention throughout the 
 country, which it deserves. For several years, every thing re- 
 lating to the System, was viewed as a matter of experiment, 
 and so far as it was adopted, it proved so much superior io its 
 moral consequences, to the old sanguinary codes of the colonies, 
 that the gain was deemed matter of congratulation, although the 
 grand end was not attained. Besides, the number of convicts 
 was much smaller than it is at present, the superintendants were 
 frequently changed, the chain of observation was broken, and 
 if the sagacity of observation detected defects, they were not 
 so presented to the Legislatures of the different sections of the 
 Union, as to awaken their apprehensions. Hence one state 
 after another, each having disUnct municipal laws, and distinct 
 constitutions of government, went on, imitating Pennsylvania 
 and New- York, in the erection of prisons, and adapted the errors 
 and vices of the System, without an anticipation of disastrous 
 consequences. The last prison on the old plan was erect«d at 
 Cincinnati, in the state of Ohio, in 1816. 
 
21 
 
 God has planted in the bosom of man those passions and emo- 
 tions that constrain him to assimilate his condition to that of his 
 species, and to cultivate those relations, that produce reciprocity 
 of feeling. (I) Abstractedly speaking, his nature is social ; but 
 when bom and cherished in the bosom of civilization, and when 
 his faculties are called forth, and his leading propensities grati- 
 fied, by constant intercourse, and where the pleasures of socie- 
 ty become essential to his comfort and his happiness, the heavi- 
 est curse that can fall upon him, is, complete and unceasing soli- 
 tude. His fortitude may endure and triumph over the infliction 
 of corpjral sufferings ; his want of shame may set at defiance 
 the soJrn of the world, as he undergoes the ignominy of public 
 disgiace ; his desperation may enable him to look coldly and 
 fearlessly on capital punishment ; but that condition that 
 cuts him off from the world and all its endearments and attrac- 
 tions: *fcat judgment of law that proves the grave of every 
 social blessing and allurement, and leaves the mind to prey upon 
 itself, and mixes bitterness and reproach with every remem- 
 brance ; that doom which places before the eye, one long, dark 
 and unchanging scene of seclusion that can never be broken by 
 :he human voice, lighted up by a smile of joy, nor meliorated 
 by a tear of sympathy, is more appalling, in the train of reflec- 
 tion, than all the terrors of dissolution. If exile from our native 
 country, although it may place us in the midst of the most re- 
 fined and polished society in foreign countries, and carry with it, 
 as it frequently does, the consolation derived from noble strug- 
 gles and elevated devotions to a pure cause, frequently breaks 
 the proudest spirit and shakes the firmest resolution, and is view- 
 
 (I) Two thousand years have not weakened t)ie force of the beaufifuUdea ex- 
 pressed by Aristotle, when he said, that from the circumstance of man's being 
 endowed with the powers of speech, he could pro^e his ruling propensity for 
 social existence. Grotius has repeated it in the following remarks : hominivero 
 perfects setatis, cam circa similia similiter agere norit cum societatis appetita 
 •xcellente. cujtis pecutiare solus inter anioiantes instrumentum babet sermonem, 
 inesse etiam facultatem sciendi agcndique. secundum generalia praecepta, par es^ 
 iDtelligi. cui quae conveniunt ea jam sunt noD omnium quidera animantium sed 
 homans naturs congruentia. 
 
22 
 
 ed as an act of outlawry from the enjoyments of our existence ; 
 what must be that exile from all human kind that is the result of 
 vice, profligacy and crimes ; that carries with it the torture of 
 self-condemnation and the reprehension of the world; thatcan- 
 not be soothed by the enthusiasm ol principle, nor mitigated by 
 the distant applause of posterity ? The evening sun sets but to 
 rise on the same dark scene of mental suffering : the mind is 
 driven to rely upon its own resources : the pleasures of inventive 
 genius are withdrawn, and the poignancy of deep and settled 
 repentance is uninterrupted. This is not theory, that no prac- 
 tice has sanctioned. It is founded on the deepest priry^iples of 
 our nature, all round the globe, where civilization has tast the 
 lines and boundaries of her empire. 
 
 And indeed it may perhaps be said with truth, that the social 
 attractions act stronger on depraved and desperate persons, lhan 
 on tliose of a correct and virtuous character. What pleasures 
 can pertain to persons destitute of all moral obligations but ihe 
 indulgence of those passions that can alone be gratified by a 
 communion with others.'' Who plunders the property of ano- 
 ther, who seeks gain by violating the Penal laws, to enjoy the 
 fruits of aggression in solitude .'' Mark the murderer, the pirate, 
 the burglar, the thief, and the swindler — v/hither do they repai 
 with the acquisition of their crimes.'' They go to the bosom o' 
 that abandoned circle, which is composed of wretches lik< 
 themselves. They derive a countenance and support froa 
 those, who, like themselves, have ceased to regard moral ties, 
 and who adhere to no common bond but that which holds to- 
 gether a combination, erected against the peace, the rights and 
 the security of the community. It is in the refuge afforded by 
 such associations, that reflection is precluded, and conscience 
 vanquished. It is in such asylums of infamy, that the most 
 depraved can find vindicators. In the ebulitions of a convulsive 
 joy at the success and triumphs of guilt, or in the cool and de- 
 liberate councils for the prosecution of fresh depredations, we 
 may expect the annihilation of every wholesome and honora- 
 ble restraint, and the banishment of contrition and remorse. 
 
23 
 
 Let us, for instance, take ten or twenty abandoned fHons, and 
 give them their choice either to go into complete solitude, and 
 be comfortably cloathed and fed, and live in total idleness, or to 
 be placed in the society of one hundred honest mechanics with 
 whom they should live and labour and be comfortable, or be 
 placed in the society of two or three hundred criminals, like 
 themselves, destitute of honesty, and destitute of shame : can 
 any rational person doubt the alternative which would be em- 
 braced ? Solitude would present nothing but horror ; the com- 
 pany of industrious and upright men, would be disgusting; but 
 the association with knaves and villains, would be a place hold- 
 ing out the most pleasing anticipations. 
 
 With these prefatory remarks, and with the principles of con- 
 duct, and thinking which we have pointed out, fully in mind, 
 let us take a view of the internal state of our Penitentia- 
 ries. 
 
 Are our Penitentiaries places which are dreaded by convicts.' 
 Is the anticipation of being immured within their walls, gi lerally 
 productive of terror ? The observation and experience of years 
 convince us to the contrary. Our Penitentiaries are communi- 
 ties by themselves. They contain so many societies of men of 
 the same feelings, of similar principles, and like dispositions, 
 erected by force of statute. They are so many commonwealths, 
 insulated from the rest of mankind. Look at the Penitentiaries 
 of Pennsylvania, New- York, Massachusetts, and the other 
 states ; what is the spectacle which they present ? Several hun- 
 dred convicts are mingled together, without regard to age, atro- 
 city of guilt, or prospect of reform. All the characteristics of 
 social intercourse are presented. There is neither shame nor 
 repentance. All have been placed there by the arm of justit e, 
 for violating the laws of the land, and there is but little ground 
 for contrast or reproach. The members of these little commu- 
 nities are comfortably clothed, comfortably fed, condemned to 
 moderate labour, and easy tasks, permitted to have their hours 
 of ease and recreation, indulged in talking over their exploits in 
 ♦he paths of guilt, suffered to form new schemes for future exe- 
 
24 
 
 cutioii, and to wear away their term of service, under circum- 
 stances calculated to deprive it of every salutary effect. This 
 state of things is truly appalling, and we cannot draw a picture 
 in more vivid colours, than the one which is presented, of the 
 oldest State Prison in the union, by the report on the Peniten- 
 tiary System in the State of Pennsylvanian, on the 27th of Jan- 
 uary, 1821. " It seems," says the Report, " to be generally ad- 
 mitted, that the mode at present in the Penitentiary, does not 
 reform the prisoner. It was intended to be a school of refor- 
 mation, but it is now a school of vice. It cannot be otherwise, 
 where so many depraved beings are crowded together, without 
 the means of classification or of adequate employment. There 
 were in confinement on the first instant, four hundred and nine- 
 ty-four men, and forty women, convicts. A community of in- 
 terest and design is excited among them, and instead of refor- 
 mation, ruin is the general result.'' ( m) 
 
 We must then draw the conclusion that the construction of 
 our Penitentiaries is wholly defective, and calculated to defeat 
 the object of the system. Large numbers of convicts are pro- 
 miscuously crowded together : a sentence to the Sate Prison is 
 not viewed with that terror that tends to prevent crimes ; the 
 allurements and pleasures of social intercourse, are kept up . 
 the ignominy of punishment is forgotten ; and with many hundred 
 criminals, the State Prison is viewed like the transportation to 
 Botany Bay, by felons in Great Britain, as a welcome assy- 
 lum. 
 
 The next error which we shall notice, as pertaining to our 
 Penitentiaries, is the entire want of classification, if we except 
 the division of convicts into sexes. Men and women are kept 
 separately and here the rule of discrimination stops. This i» 
 indeed the natural consequence of the evil manner in which our 
 prisons are constructed ; yet defective as they are in this res- 
 pect, it would be practicable, in many cases, to prosecute some 
 more distinction among felons than appears at the present time. 
 
 (m) Report to Pennsylvania Senate, by Mr- Ragaet, Jan. 1821, and letter of 
 Mr. Mierckeii. 
 
25 
 
 We know of no prison in the United States, where the convicts 
 are divided into classes, and kept in classes, with a reference to 
 their own good. When once placed within the precincts of the 
 Penitentiary, the grade of the offence, the age, the disposition, 
 the indications of repentance, or the proof of their hardihood 
 are all forgotten, and they comprise one great aggregate of of- 
 fenders. The prevailing object is to make their labour as pro- 
 ductive as possible, and to this object every consideration seems 
 subservient. Here the most obdurate and experienced offender 
 who has grown grey in the perpetration of crimes, and who has 
 become familiar with the walls and discipline of prisons, who 
 with equal thoughtlessness and hardihood, contemns the laws of 
 God and man, is seen the daily, and in many prisons, the night- 
 ly companion of the unfortunate youth, who, from neglect of 
 parental regard and watchfulness the want of timely education, 
 and the inculcations of correct early habits, have committed a 
 single offence of a minor grade, and has been sentenced for the 
 shortest term the law allows. Offenders for manslaughter, burglary, 
 larceny, counterfeiting, and swindling, the felon of sixty and the 
 felon of fifteen, — he who has shed man's blood, or put the mid- 
 night torch to his neighbour's dwelling, and threatened the ex- 
 istences of a whole family, and he who has passed a counterfeit 
 bank note of five dollars, are doomed to a condition, where they 
 are placed together upon equality, and become daily associates. 
 Can we rationally talk of the reform of convicts under such cir- 
 cumstances ? What is man ? The creature of habit. We assert 
 not the doctrine that all men are naturally possessed with an 
 equal love of virtue and an equal abhorrence of vice ; but we do 
 assert that habits of thought, and habits of action, create settled 
 rules of conduct that are grounded on moral excellence — fortify 
 the character against all temptation, — and that they may also 
 destroy the last trait of honesty, truth and rectitude, and render 
 character the blackest type of human guilt. How many crimes, 
 how many misfortunes, how many sacrifices of worth and promise, 
 have been produced by indiscreet and vicious associations, that 
 existed before men have violated the law, and fallen under the 
 
 4 
 
26 
 
 iientence, of a criminal tribunal ; and yet by means of our 
 Penitentiaries we establish in the execution of our laws, the 
 most desperate, profligate, and dangerous association, that can 
 well be established by human invention, and expect that such a 
 policy will prevent the perpetration of crimes, present a salutary 
 example, and restore those who compose them, reclaimed and 
 regenerated to the bosom of society ! A State Prison must ne- 
 cessarily be filled with every description of offenders, from him 
 who is the least obnoxious to the laws, to him who is the most 
 flagrant aggressor. Felons, according to the ordinary principles 
 of our nature, will assimilate in moral character by intercourse ; 
 and the standard which will be approached and adopted, will not 
 be the lowest, but the highest degree of turpitude The har- 
 dened convict will maintain his abandoned principles, and the 
 novice in guilt will become his pupil and his convert. The 
 greater oflender will not go to the lesser; the tendency is the 
 reverse. It requires no reflection to perceive, that without clas- 
 sification, our Penitentiaries, instead of preventing crimes, and 
 reformhig convicts, directly promote crimes, and augment the 
 moral baseness of convicts. They are so many schools of vice 
 — they are so many seminaries to impart lessons and maxims, 
 calculated to banish legal restraints, moral considerations, pride 
 of character, and self-regard. It is notorious that, in all public 
 prisons, their tenants soon adopt certain principles of govern- 
 ment and conduct, among themselves, and that they soon assume 
 the form and semblance ofa distinct and independent community. 
 They have their watchwords, their technical terms, their pecu- 
 liar language, and their causes and objects of emulation. Can 
 we see any thing in this view, but consequences the most seri- 
 ous and alarming ? Who fill our Penitentiaries ? Take those 
 of Richmond, Baltimore, Philadelphia, New-York, and Boston 
 — and we shall find their tenants composed of renegadoes from 
 England, Ireland, Scotland, France, Italy, and other parts of the 
 continent of Europe, united to convicts who are natives of the 
 United States. Many of them were finished adepts before they 
 reached our shores, and united to such of our own citizens as arc 
 
27 
 
 equally well skilled in the perpetrations of crimes, they form a 
 combination every way calculated to extirpate the last principle 
 of honesty in the human breast. With this congregation of robbers, 
 burglars, thieves, counterfeiters, and swindlers, of every descrip- 
 tion, we shut up all classes of minor offenders, and they mingle 
 together, for months and years, without distinction. Many of 
 them are of respectable parentage, and have been decently, and 
 sometimes well educated ; their hold on the respect of the 
 world is not entirely broken ; the feelings of repentance and 
 self-respect, are not extinguished ; — and they have not with- 
 drawn their eyes from the paths that lead to reform, and to res- 
 toration. Many of them possess dispositions that are easily 
 swayed, and sensibilities that are easily excited by reason and 
 truth, and under proper discipline, could be reclaimed and re- 
 formed. But can we rationally look for such results, when they 
 are turned into a Penitentiary, with hundreds of criminals, who 
 are daily rendered more wicked by example and precept ? As 
 to those State Prisons which have been erected in the interior 
 of our country, they too have their desperate and hardened ten- 
 ants, whose evil communications are palpably seen in the most 
 baleful consequences. Let us ask any sagacious observer of 
 human nature, unacquainted with the internal police of our Pen- 
 itentiaries, to suggest a school where the commitment of the 
 most pernicious crimes could be taught with the most effect ; 
 could he select a place more fertile, in the most pernicious re- 
 sults, than the indiscriminate society of knaves and villains of all 
 ages and degrees of guilt, with strong and furious passions, har- 
 dy constitutions, and sound health, comfortably clothed, sump- 
 tuously fed, and left to the performance of trifling duties ? Your 
 Committee are not indulging in speculation. They say that our 
 Penitentiaries are destitute of the classification of convicts, of 
 any regard to the degree of individual guilt, and any regard to age 
 — and without any regard to reclamation. We say that an in- 
 discriminate intercourse exists among the convicts, and that 
 the different shades of guilt and atrocity are blended together. 
 We say that both, by day and by night, with few or no excep- 
 
28 
 
 lions, they communicate with each other ; — that the most per- 
 nicious principles may be inculcated, the worst of passions infla- 
 med, the most profligate maxims be rendered familiar — and all 
 shame, honesty, and self respect be destroyed. We appeal to 
 any Penitentiary in the United States, to show us the moral 
 misapplication of this discription. If there are exceptions, they 
 are in some of the new Penitentiaries, where the prisoners are 
 few, and the evils here spoken of, not yet palpably developed. 
 The State Prison in Ohio, erected five years ago, already se- 
 verely experiences the truth of what we here lay down. Such 
 has been the information derived by the Chairman of the Com- 
 mittee, in a pf rsonal conversation witii one of the most distin- 
 guished, and public spirited men of lliat Slate. 
 
 We shall here adduce some proofs to illustrate the assertions 
 in which we have indulged. We could produce more than will 
 be referred to, were it essential and requisite. We shall begin 
 with Pennsylvania, and quote the heport to the Senate of that 
 State, before referred to. " There were in confinement," says 
 that well written and lucid document, " on the first of January, 
 1821, four hundred and twenty-four men. and forty \Nomen 
 convicts. For want of room to separate them, the young a-<so- 
 ciate with the old offenders : the petty thief becomes the pupil 
 of the highway robber; the beardless boy listens with delight 
 to the well told tale of daring exploits, and hair- breadth escapes, 
 of hoary headed villany, and from the experience of age 
 derives instruction, which fits him to be a pest and terror to 
 society. Community of interest and design is excited among 
 them, and instead of reformation, ruin is the general result." 
 
 "This is a short but melancholy picture; it is but faintly 
 drawn, but it is sufficiently strong to excite attention in every 
 benevolent mind. The Grand Juries of our district, have for 
 years past, presented to the public a similar portrait of our once 
 boasted Penitentiary, and the late Executive has very judicious- 
 ly directed the attention of the Legislature of the State to the 
 subject." (n) 
 
 (n) Report to Pennsylvania Legii'Iature, and Mr, Mecrekin's letter. 
 
29 
 
 We shall next refer to the Statistical View of the operation of 
 the Penal Code of Pennsylvania, prepared and published by the 
 Society for alleviating the miseries of public prisons. " So 
 many," says this publication, " are crowded together in so small 
 & space, and so much intermixed, the comparatively innocent 
 with the guilty ; the young offender, and often the disobedient 
 servant or apprentice, with the most experienced and hardened 
 culprit ; that the institution already begins to assume the cha- 
 racter of a European Prison, and a seminary for every vice, in 
 which the unfortunate being who commits the first offence, 
 and knows none of the arts of methodised villany, can scarcely 
 avoid contamination, and leads to extreme depravity, and with 
 which, from the insufiBciency of room to form separate ac- 
 commodations, he must be associated in his confinement." (o) 
 We shall next cite the words of Mr. Hopkinson, whose celebrity 
 as a lawyer and a statesman, give him a passport to the acquaint- 
 ance of the American people. His whole letter will be found 
 in the appendix. " So far" says he "from reformation having 
 been the effect of the System as heretofore practised, one of its 
 worst evils is, that by throwing a crowd of criminals together, 
 necessarily of different degrees of depravity, they become equal- 
 ly wicked and corrupt, and skilled in the various contrivances 
 to commit crimes and elude justice. It is a college for the edu- 
 cation of men to prey upon society. A novice, who if kept 
 from company worse than himself, might have been reclaimed 
 from his first attempts, is here associated with old, hardened 
 and skilful offenders ; he hears with envy and admiration, the 
 stories of their prowess and dexterity ; his ambition is roused, 
 his knowledge extended by these recitals, and every idea of re- 
 pentance is scorned ; every emotion of virtue, extinguished. 
 Instances of this sort are numerous, both in the United States 
 and in England. I consider this herding of criminals together, 
 as a vital defect in the Penitentiary System." (p) 
 
 A letter, full of sound sense, from Bishop White, President 
 
 (o) Statistical View. 
 
 (p) Mr. Hopkioson's letter in the App 
 
so 
 
 of the Philadplphia Society for alleviating tlie miseries of pub- 
 lic prisons, whose persevering and benevolent eflbrts are well 
 knciwn, goes to prove the facts above stated, (q) 
 
 As we pass from the Philadelphia to the New-York Peniten- 
 tiary, we find nothing but the strongest evidence to prove the 
 total want of any judicious classification of prisoners. Our State 
 Prison has been crowded for years. — Convicts of all ages, and all 
 degrees of 'turpitude, have been placed together, and all the 
 evil and fatal consequences of vicious communications have 
 been exhibited. It was built to accommodate three hundred 
 persons, and more than seven hundred have been confined in it 
 at once— many of them foreigners from all the ends of the 
 earth. Your Committee need appeal to no documents, to shew 
 (he total want of a proper division of convicts in our Peniten- 
 tiary. The defect is well known to the whole community, and 
 is as obvious to the eye, as the prison itself. Culprits come out 
 far more depraved and desperate, than they were when they re- 
 ceived their sentence. The young are advanced in the paths 
 of guilt; the old, confirmed in their baseness ; morals, instead 
 of being improved, are broken down ; conscience, instead of 
 being restored to a tone of reproof, is blunted and banished. 
 N(» statement of ours can be too strong on this point. The 
 fact stands complete and conclusive. 
 
 The State Prison in Massachusetts forms no exception to the 
 general want of classification. Unfortunately, the circulars ad- 
 dressed to several of the first men in Massachusetts, by your 
 Committee, have not been answered or noticed in a single in- 
 stance ; we must therefore rely on that information which has 
 been derived from other sources. We feel authorised to assert, 
 that there has ever been a neglect of that division and separa- 
 tion of convicts, that discrimination between old and young 
 olTenders, and that prevention of evil communication, which 
 constitutes the grand defect under consideration. We are, how- 
 ever, recently informed, that it is at present less to be appre- 
 hended in this case than formerly. ( r) 
 
 (q) See A pp. 
 , (r) Vide North Am Review, No. 8, Oct. 1821. 
 
31 
 
 Perhaps no Penitentiary in the United States has been mana- 
 ged with more wisdom, care and uniformity than the one in 
 Virginia. Samuel P. Parsons, of the society of Friends, who 
 has long been the Superintendant, and who, if any man has capa- 
 city and zeal to perfect the System, possesses them in an emi- 
 nent degree, and who has spared no effort to accomplish the 
 original end of the institution, informs us that the want of classi- 
 fication of convicts is one of the evils which have caused the 
 partial disappointment of its friends and patrons. There is too 
 much intercourse among the prisoners, too many sleep together, 
 and the contagion of vice is apparent, (s) 
 
 The State Prison of New-Hampshire has been erected but 
 for a few years. The number of felons is not great, and yet the 
 the want of a division into classes is already perceptible. Gov. 
 Plumer, the late distinguished Chief Magistrate of the State, on 
 whose sound and judicious opinion, the Committee place great 
 reliance, and to which they shall again refer, observes that " ef- 
 fectual measures should be adopted, to separate, in the Peni- 
 tentiary, old offenders from the young and inexperienced, oth- 
 erwise the latter, instead of being reformed will become adepts 
 in crimes ; and when the term of their confinement expires, they 
 will return to society, more wicked and abandoned, than when 
 they left it." (t) 
 
 Judge Woodberry, of the New-Hampshire Supreme Court, 
 remarks : " The prisoners, according to the enormity ol their 
 crimes should be classed, and matched with some distinctive 
 badge. They should, during the day, be kept more quiet and 
 secluded from either society or conversation, and during the 
 night wholly separated from each other." (u) 
 
 The letter from the hon. Daniel Clussman one of the most 
 distinguished la\vyers in Vermont, and in New-England, and a 
 careful and sound legislator, observes, when speaking of the 
 Penitentiary in that state : " The prisoners are only exposed to 
 
 (i) Vide Mr. Parson's letter in the app. 
 
 (0 Vide Gov. Plumer's letter in app. 
 
 (u) Vide. Judge Woodberry's letter ia app. 
 
32 
 
 corruption ; a young man who has been detected and punished 
 for the the first crime he has committed, and who has no settled 
 habits of vice, is confined with old and hardened offenders, and 
 those will have an influence on the young mind. He will in a 
 measure look up to them." 
 
 The Penitentiary in Maryland, and the one in Ohio, erected 
 about six years ago, go on with an exhibition of the same radi- 
 cal defects, and although the State Prison in Connecticut is dif- 
 ferent from any other in the United States, yet Governor Wol- 
 cott remarks in his very interesting communication, which we 
 shall more fully notice, " that it has been a defect in the estab- 
 lishment, that the means of discrimination between convicts of 
 different degrees of enormity, do not sufiiciently exist." (v) On 
 this alarming error in the Penitentiary System, we trust that 
 enough has been said in this place. Its existence and its tenden- 
 cy, require no further illustration here. 
 
 The want of room, is another defect that applies to several 
 of the State Prisons, and is, in some measure, the result of their 
 construction. In Philadelphia, New-York, Baltimore, and 
 Charleston, it would have destroyed the ability to classify con- 
 victs, had it been a part of the penitentiary police to have resor- 
 ted to this policy. It has produced another evil next to the one 
 last mentioned if not still more fatal — the exercise of the par- 
 doning power. In no state has this defect been so alarming 
 and disastrous as in our own. The Judges of our Supreme 
 Court' have actually recommended convicts to pardon, and the 
 Governor of the state has, in innumerable instances, granted 
 pardons to make room for new criminals. Want of a place to 
 secure new offenders, rendered this baneful state of things abso- 
 lutely necessary if the laws were administered at all. (w) In 
 Pennsylvania, the most serious difilculties have arisen from the 
 want of more extensive accommodations, and Massachusetts, 
 previous to the erection of the state of Maine, and its separation 
 from the parent state, and an alteration of the Criminal Code, 
 
 (»>) See Gov. Wolcott's letter in the app. 
 
 (w) Keport of Coicmittee to I-ow-York Senate, March 7, 1817- 
 
33 
 
 that places young offenders in the County prisons, great disad- 
 vantages arose from the same cause. In New- York and Penn- 
 sylvania, these evils will be diminished hereafter, by the erec- 
 tion of new prisons, although they here deserve much conside- 
 ration among the causes that have produced the practical failure 
 of the State Prison System. 
 
 We now come to a defect, that has been one of the radical 
 causes of disappointment in our Penitentiary System, and one 
 whose existence will ever defeat the most perfect Criminal Code 
 that human wisdom can frame. We refer to the frequent ex- 
 ercise of the pardoning power. This evil, although most deep- 
 ly felt in all the states, has been endured with the most fatal re- 
 sults whenever the Penitentiary System has been tried on a large 
 scale. It has been found, to the last degree, pernicious in Penn- 
 sylvania, New- York, and Massachusetts. Unless more caution 
 is hereafcer exercised with regard to this suspension of justice, 
 we may as well close and abandon our Penitentiaries so far as 
 prevention of crimes is concerned. 
 
 In every department of law, there are certain fundamental 
 maxims, that truth, experience, and universal assent, render sa- 
 cred and unquestionable. Thus all jurists and legislators adopt 
 the principle, that the certainty of punishment is the prevention 
 of crimes. This was a favourite feature in the writings ofBee- 
 caria. It was laid down by Sir Samuel Romily, one of the 
 greatest lawyers which England ever had, that could punishment 
 be reduced to absolute certainty, a very slight penalty, would 
 prevent every crime that was the result of premeditation. And 
 we might well ask, if any offence, of consequence, was ever 
 committed where there was not a full conviction, in the mind of 
 the perpetrator, that he should escape the grasp of justice The 
 felon does not weigh the gain of liis deed, with the punishment 
 which the law denounces against him, and strike the balance ; 
 but he connects together the acquisition and the belief of eluding 
 justice. Would any man rob the mail of the United States if 
 he knew that death was his certain doom f Would any man 
 pass a five dollar bank note, if he knew that five years iropris- 
 
 5 
 
34 
 
 onnieiit w uuld be bis destiny ? No one can rationally pretend 
 it. What then is the effect of granting frequent pardons ? Does 
 it not go directly to diminish the certainty of punishments ? A 
 pardon disarms the law, and is a destruction of punishment. If 
 pardons are often granted, what is their consequence on the mind 
 of public offenders ? Not only do they calculate on the gene- 
 ral belief of escape, but they reflect, if even that confidence 
 should be ill-placed, they will be fit subjects of executive cle- 
 mency, and thus is combined in their thoughts the double pros- 
 pect of going unpunished. This, therefore, holds out a direct 
 encouragement to the desperate and evil minded, and contra- 
 venes that vital requisite of every Criminal Code, on which the 
 Marquis Beccarie, and every succeeding writer has laid so much 
 stress. Besides, if the pardons are granted, without due discri- 
 mination, there is extreme and barefaced injustice in the policy ; 
 and it is a sound maxim in jurisprudence, as well as in morals, 
 that he who attempts to punish another for offending against 
 justice, should himself be just. 
 
 This is the way to render justice a mockery, and weaken the 
 respect of the community for the laws. Four or five hun- 
 dred convicts are confined in a Penitentiary : some for robbery, 
 burglary and swindling, and some for passing a five dollar note 
 or stealing a garment. The robber, the burglar and the swind- 
 ler are pardoned, and he who passes the note or takesthe gar- 
 ment are kept in for months and years. What must be the re- 
 flection of convicts on such an administration of justice ? This 
 is no speculation : the most notorious felons have again, 
 and again, been pardoned from our Penitentiaries, while the 
 young and inexperienced culprits, for committing crimes of 
 comparative petty magnitude, are kept in for years. Is this the 
 way^to render our prisons places of reform and amendment ? 
 Is this the way to render law and justice sacred in the eye of 
 criminals One of the great objects of punishment, is said by 
 many writers, to be example, and the restraining consequences 
 to flow from it. Example, to be effectual, should be uniform. 
 It should not be severe and desolating in one case, and wholly 
 
35 
 
 destitute of force in another. What beneficial effect can we 
 expect from this source, when it is doubtful who will and who 
 will not suffer after sentence ? When it is questionable, whether 
 the most flagrant, or most excusable offender will endure the 
 heaviest punishment? Reasoning is unnecessary to illustrate 
 the ruinous consequences of this abuse of executive justice. It 
 strikes at the root, and contravenes the ends of all Criminal 
 Codes. 
 
 This evil has not been felt in all the states. Its consequen- 
 ces have been most apparent in the states where Penitentia- 
 ries were early resorted to, and what is more to be regretted, 
 want of room for the confinement of convicts, and not a regard 
 for the constraining appeals of clemency, has been the moving 
 cause, which has led to its existence. The state of New-York 
 has unfortunately furnished the most striking and melancholy 
 prcjof of the correctness of our remarks, of any state in the con- 
 federacy. We shall here refer to a report of certain commis- 
 sioners, appointed to examine into the State Prison, relative 
 to its expenditures. This document remarks, that " the Judges 
 of the Supreme court have been obliged to recommend for 
 pardon, an«l the executive to exercise his constitutional power 
 of pardoning, merely for the purpose of making room for the re- 
 cejiiion of new offenders. The sentence of the law must, in the 
 first intanre be complied with ; the convict must be received in 
 the prison, and put to labour ; but before his term of service has 
 half espire.i, it has been found indispensable to get rid of him 
 in order to make room for others, under similar sentences. The 
 consequence has been, that, while on the one hand those, whose 
 dispositions and habits have prepared them for the perpetra- 
 tion of crime, have been encouraged to go on and commit 
 their depredations in the hope of at least partial if not absolute 
 impunity, (for that portion of the community, no doubt, perfect- 
 ly understand the subject, and know well the calculation they 
 may make upon it) — on the other, the institution has been sub- 
 jected to the disadvantage of continual change ; by the time 
 one set of workmen have been taught to labour, and have been 
 
36 
 
 qualified to make some return for the expense they have occa- 
 sioned, they are discharged from confinement, and a new set 
 substituted in their place. And thus all the inconvenience and 
 expense of preparing them for usefulness is constantly borne, 
 and all the advantages expected to result from it almost as uni- 
 formly relinquished. On referring to the reports for the five years 
 which have been mentioned, it is found that within that period, 
 seven hundred and forty convicts have been pardoned and only 
 seventy-seven discharged by the expiration of their sentences. 
 And the number of pardons within the year just ended, is stated 
 by the inspectors to have been even greater, and more dispro- 
 portionate to the number of other discharges than in any former 
 year. Nor will the force of this fact be in any degree impaired, 
 by a consideration of the moral effects of these pardons upon 
 the convicts themselves. Of all those who have, within the 
 above period, been committed for second and third offences, 
 about two thirds have been discharged from their former sen- 
 tences by pardon. And of twenty-three, the whole number 
 convicted of second and third offences in the year last reported, 
 (1815) twenty had been previously pardoned, and only three dis- 
 charged by the ordinary course of law." (x) 
 
 Since this report was made, some mitigation of the evil has 
 existed, in consequence of the advantages afforded by the Au- 
 burn Penitentiary. But still the evil is among us. Great num- 
 bers are annually pardoned out of the State Prison in the city 
 of New-York, on the grounds stated in the report alluded to, 
 and sometimes we fear from a mistaken policy of displaying 
 principles of humanity. It is to be regretted (hat many of our 
 most influential citizens are constantly found joining in recom- 
 mendations for pardons to the executive, without reflection on 
 the impropriety of defeating the purpose of the laws ; and it is 
 more regretted, that jurors, after they have convicted a felon 
 under the obligations and solemnities of an oath, turn round 
 
 {x) Report of Commissioners to the Legislature of New-Tork, 1817. 
 
37 
 
 and join a petition that renders their own verdict a nulity, and 
 
 the forms of justice a fruitless ceremony, (y) Whoever attends 
 the criminal courts of this State, and more particularly the 
 court of General sessions of the city and county of New-York^ 
 may perceive the palpable tendency of a frequent exercise of 
 the pardoning power. Criminals are constantly arraigned, tried 
 and convicted, who a few months, and oftentimes a few days 
 before, were dismissed from prison by a pardon from the go- 
 vernor. We shall here present the views and sentiments of one 
 of our statesmen on this point, who has spoken in words more 
 forcible than any we can adopt, and whose remarks are entitled 
 to peculiar respect from his sound experience as a lawyer. We 
 refer to the speech of Ogden Edwards, Esq. in the late Con- 
 vention of this State. When speaking of the effect of granting 
 pardons, he said, " that by the indiscreet use of the pardoning 
 power, the administration of justice had become relaxed ; that 
 if not checked, we should soon have to erect State prisons in 
 perhaps every county in the State. The exercise of the power 
 of pardoning is pleasant, it is humane, it is agreeable to the 
 best feelings of the human heart ; but sad experience has taught, 
 that the interests of the community require, that the civil arm 
 should be brought to bear with power upon malefactors. It 
 was a remark of an eminent Judge, now gone down to the grave, 
 that mercy to the criminal was cruelty to the State. If you 
 exercise this pardoning power to the extent that has been done, 
 what will be the consequences .'' The rest of society will be 
 exposed to the depredations of villains. The laws should be 
 exercised with a strong and resolute hand. Our Penal Code is 
 mild ; and the manner of punishment is meted out to all in the 
 proportion they deserve. If a reasonable doubt exists, the 
 felon is acquitted. But should he be convicted, there is still a 
 discretion reposed in the court for his benefit. Why has the 
 pardoning power been so fully and frequently exercised ? Why 
 are our prison doors so often thrown open, and villains let loose 
 to prowl upon society It is because our executive has been 
 too much influenced by feelings of humanity. The governor 
 
 (ff) See Annual Report, tc 
 
38 
 
 must nerve himself against their solicitations, and act with a 
 cunsciousiioss that he must account to the people for the man- 
 ner in which he uses this pardoning power. Even in Great- 
 Britain, a pardon never passes the great seal, without contain- 
 ing a recital of the causes for which it is extended. But in this 
 State they are granted without a single reason for it. And af- 
 ter the inhabitants of a country have exercised their vigilance 
 in detecting the felon ; after the jurors have convicted, and 
 judges sentenced him, the interposing hand of the executive 
 rescues him from punishment. Unless we abolish this system, 
 we may as well open the prison doors at once. They enter no- 
 vices in iniquity, and remain long enough to become professors 
 of all its arts. This is the practical operation of the system, 
 and unless we nerve ourselves against it, sooner or later the 
 rights of the people of this State will be held by a moral 
 precarious tenure. This sickly sympathy is wearing away the 
 foundation of our laws. Placed here as one of the guar- 
 dians of the rights and privileges of the people, I wish to have 
 such a provision inserted in the Constitution, as shall prove an 
 effectual check upon vice."* 
 
 The tendency of too frequently exercising the pardoning 
 power, has been found equally pernicious in the State of Penn- 
 sylvania, as far as practice has developed the principle, (z) The 
 same remark applies, in a diminished degree, to other states. 
 This grand defecrt will be further illustrated by the words of the 
 late Governor of New-Hampshire. They are full of sound 
 sense and correct observation. " The power of granting par- 
 dons" he remarks foj " should be seldom exercised. The cer- 
 tainty of punishment has a great if not a most powerful influence 
 upon the wicked in restraining them from the commission of 
 crimes. The government should therefore avoid every thing 
 that has a necessary tendency to impair the force of that cer- 
 tainty. A hardened, subtle offender, dead to moral feelings, 
 
 (a) vide Mr. Hopkinsons' letter in appendix. 
 (a) Vide his letter in app. 
 •Vide Deb. of Con; p. 125. 
 
39 
 
 calculates upon the many chances he has to escape punishment. 
 His hopes are strong that he shall not be suspected ; that if sus- 
 pected, he shall be able to avoid arrest; that if arrested, proof 
 will not be obtained to convict him ; and if convicted, that he 
 shall be pardoned. That spirit of benevolence, which often 
 prompts public officers to pardon the guilty, does honor to the 
 heart, but it impairs the security of society. During the four 
 years I was governor of this state, I pardoned but two of the 
 convicts who were confined in the State Prison, although the 
 applications for the first two or three years were numerous, and 
 supported by the recommendations of many respectable charac- 
 ters. / did not consider myself at liberty to question the propriety 
 of the opinion of the court who rendered the judgment. I believ- 
 ed they were the only tribunal competent to pronounce upon the 
 innocence or guilt of the accused ; and that their own decision 
 ousrht to be conclusive." (b) 
 
 Mr. Raymond of Baltimore, whose letter will be read with 
 deep interest, indulges in the following observations, when 
 speaking of the pardoning power in the state of Maryland. He 
 says that " some of the facilities of escaping punishment might 
 be easily remedied, and with this view, I would deprive the go- 
 vernor of the power of pardoning and granting a nolle prosequi. 
 I consider the power to be attended with the most mischievous 
 consequences, and should be taken away entirely. In the first 
 place this must be a most unpleasant power for an honest and 
 humane man to exercise. In the next place, there can be no 
 hope in the present state of society, that it will be exercised 
 with rigor and impartiality. Those who have strong friends will 
 obtain a nolle prosequi, or a pardon, be their crimes small or 
 great. Those who have not friends, will never obtain either the 
 one or the other. But these are by no means the worst conse- 
 quences of this power. It is the anchor of hope to the accu- 
 sed, and the convict, and there is very little likehhood of peni- 
 
 (6) Vide Gov. Plumer's letter in app. The cases -mentioned justified the par- 
 don—one was insane, and the other in the last stage of life, without hope of re- 
 covery. 
 
40 
 
 ence or reformation so long as there is hope of escaping pun- 
 ishment. A single spark of hope will support a mind which, 
 without it, would sink into contrition and repentance. It should, 
 therefore, be a principal object to extinguish every ray of hope 
 of escape in the mind of the accused criminal, and of the fe- 
 lon." (s) 
 
 Mr. Parsons, in his letter on the Penitentiary System of Virgi- 
 nia, {t ) considers the granting of pardons one cause of its fail- 
 ure to answer the required end ; and the North American Re- 
 view, whose investigations on all subjects do honor to the 
 American nation, remarks, when speaking of the Massachusetts 
 Penitentiary, that " out of fourteen hundred and seventy-one 
 convicts, who have been sent to the Massachusetts State Prison, 
 during a period of sixteen years, two hundred and forty-two 
 have been pardoned, and twenty of them have been afterwards 
 committed again." How many of these same pardoned con- 
 victs have been committed to prison in other states than Mas- 
 sachusetts we are not informed, and we cannot here forbear to 
 express a most decided repugnance to the practice that has 
 prevailed in this and in other states, of pardoning criminals, on 
 condition of their leaving the state in which they have offended. 
 It is immoral, unjust, and disgraceful. It is opening your pris- 
 on doors and sending forth so many outlaws to mar the peace 
 and plunder the property of citizens in neighbouring sections 
 of the union. 
 
 The Committee trust that they have indulged in a sufficient 
 latitude of remark on this defect. Its tendency to prevent the 
 end of every Criminal Code is palpable. This truth has been 
 seen and felt in other countries besides our own. Beccaria, 
 Sir Samuel Romily, and Mr. Colquhoun have reprehended it 
 on the other side of the water, and Sir James Mcintosh, in a 
 debate some three years ago, in the British House of Commons, 
 on sonie of the Penal laws of Great Britain, stated to that body. 
 
 («) Vide letter from Daniel Raymond. Esq. app. 
 (() " Appendix. 
 
41 
 
 " that one pardon contributed more to excite the hope of es- 
 cape, than twenty executions to produce the fear of punishment ; 
 and that an able and ingenious writer who, as a magistrate, was 
 peculiarly competent to judge, forcibly argued that pardons con- 
 tributed to the increase of crime." (e) 
 
 The next error which the Committee would notice, is the 
 frequent change of superintendants, governors directors and 
 managers, in several, if not in all, of the Penitentiaries in the 
 United States. No system of laws can prove salutary and effec- 
 tual, when its administration is grossly defective. More espe- 
 cially a system intended to reform the most depravpd and des- 
 perate portion of mankind, and one which is designed to extin- 
 guish the worst of passions, and destroy the most vicious habits, 
 should be uniform and unchanging in its operations. This has 
 not been the case in the immediate administration of the Peni- 
 tentiary System. Unfortunately party politics have pervaded the 
 different states of the Union, and all places of power and trust, 
 have turned on their constant fluctuations. Not even our State 
 Prisons have been spared. The men who have been entrusted 
 with their supervision have been displaced again and again, and 
 others been called in to supply their places. Removals and ap- 
 pointments, have been governed by party feelings, and made 
 on party grounds, to give strength and consequence to this or 
 that pohtical sect. What has been the result ? As soon as one 
 set of supervisors, or governors, have become accustomed to 
 the duties of their station ; as soon as they have been able to 
 take that comprehensive view of a system, that detects errors 
 and suggests remedies, their powers have been vacated, and their 
 functions transferred to others. These, in their turn, have been 
 swept aside, to gratify the wishes of new applicants. In this 
 state of things, the most pernicious results have been found. 
 The government of our Penitentiaries has been often changed, 
 old laws have been relaxed, and new internal regulations Lave 
 been established. Rash experiments have been made. N(u- 
 
 (e) Deb. in House of Com. IS 19. 
 
 6 
 
42 
 
 is this all ; we fear that the selection of individuals to superin- 
 tend our Penitentiaries has not always been the most judicious. 
 Party favouriteism has had its dominion in this respect. 
 
 In Pennsylvania and New- York, political changes have been 
 more frequent than in Massachusetts, Virginia, Maryland and 
 other states where Penitentiaries have been established. Had 
 the selection of governors and superintendants, in the two states 
 first mentioned, been judicious, and been made with a regard to 
 the peculiar relation that must exist between several hundred" 
 human beings guilty of crimes and placed in custody for punish- 
 ment, example, and reform ; had men been selected for their 
 public zeal, their benevolence and their capacity to devote time 
 and reflection to their duty ; and more than this, had men who 
 have been oftentimes appointed, been preserved steadily in their 
 stations until their experience and observation had taught them 
 wisdom and judgment, many of the evils now enumerated might 
 have been prevented. As the system has been administered, 
 two more disadvantages, kindred to the others, have here arisen. 
 In the first place, there being no assurance of permanency in 
 the enjoyment of these stations, good men have been constrain- 
 ed to decline them ; and in the second place, where they have 
 accepted them, the precarious tenure with which they were 
 held destroyed that ambition, and extinguished that hope of 
 reform, that would otherwise have been cherished. 
 
 The Committee consider that the cause of failure in the sys- 
 tem here spoken of, is so apparent in its consequences, and so 
 foreign in its nature to the system itself, that it requires nothing 
 more in this plaee than the brief notice which we have confer- 
 red upon it. 
 
 The want of a school for Juvenile offenders, has been ano- 
 ther, and a stable evil, as has also been the want of a proper 
 system of moral and religious instruction. The first deside- 
 ratum, has long been palpable, more especially in those Pen- 
 itentiaries that are situated in our large cities, or in their vi- 
 cinity. As population clusters, the civil relations of life mul- 
 tiply, moral habits become less strict, education is less dif- 
 
48 
 
 fused, and a portion of the youthful part of the community are 
 more neglected ; temptations to vice are stronger and more nu- 
 merous, and young convicts bear a greater ratio to old ones, than 
 in the interior. Hence the Criminal Courts of the cities and 
 larger towns, frequently sentence boys from fourteen to eighteen 
 years of age, to a long term of service in our State Prisons. 
 Whoever has entered these abodes, has seen youth of various 
 ages from fourteen to twenty years old, wearing away a portion 
 of the brightest and most precious period of their existence 
 among felons of the most abandoned description, without the 
 means of improving. It is impossible that they should not come 
 forth prepared for evil deeds. The worst examples are con- 
 stantly before their eyes. Morality is ridiculed : honesty is 
 dispised, and vice is set off with every attraction that hardened 
 guilt can suggest. Religious service we believe is generally 
 performed in our state prisons once a week. This does not 
 seem adequate to produce the effects to be desired. We think 
 that the chaplains of our Penitentiaries should often visit the 
 criminals, and afford that instruction, and give those mild and 
 conciliating counsels that conspire to awaken and restore the 
 mind to its lost tone of moral energy. 
 
 We shall conclude this division of the Report by noticing one 
 more defect attendant on the administration of j_the Peniteni- 
 tiary System, although no way intrinsic, or inherent in its consti- 
 tution. We refer to the great regard which has been paid, in 
 the different states, to the revenue to be derived from the la- 
 bours of convicts in the State Prisons, without paying due res- 
 pect to the fact, that the end of the system itself might be 
 defeated by such policy. It is very natural, and it is very ne- 
 cessary that the States should pay a strict attention to the finan- 
 cical resources, and think of debt and credit. Still it is a source 
 of regret to see narrow fiscal views bear so strongly on the pub- 
 lic mind as not only to defeat a great moral purpose, but even 
 to increase expenditures which it is intended to diminish. 
 
 Two considerations strike the mind on this point : first, the 
 object of the Penitentiary System; and secondly, the great 
 
44 
 
 increase of the necessary expense attending it, in consequence 
 of its failure to produce expected results What then was the 
 object of this system in the United States? It has already 
 been mentioned ; it was the suppression of crime and offences, 
 and the reform of convicts. What should be the first thought 
 of those who have the charge of its administration ? Not its 
 annual income, not the amount of revenue that can be derived 
 yearly, not the most lucrative end to which the toils and labours 
 of the convicts can be devoted ; but the government, discipline 
 and internal arrangement, which will be most conducive to the 
 great object of the system. If mingling young and old crimi- 
 nals in the same apartment ; if crowding convicts together, by 
 night or by day ; if tolerating a state of tilings that permits a 
 constant intercourse among culprits, and affords those social 
 recreations, and those effusions of spirit, that extinguish a sense 
 of shame, and cross the salutary tendency of punishment, pro- 
 mote the saving of expenditure, they defeat the purpose of the 
 system to which they are intended to be subservient, and render 
 vain and useless, to a great extent, the labours of the Legisla- 
 ture and the integrity and firmness of the jurist and the magis- 
 trate. In the second place, the attempts at economy now re- 
 sorted to, by those who have the management and control of 
 our Ptnitentiary establishments, are abortive, since the fact is 
 clearly evident, that instead of preventing, when viewed in their 
 full operation, they augment expense. The most effectual 
 method of lessening disbursements would be the diminution of 
 crimes and offences, by the due execution of the laws; and so 
 far as their execution fails to promote this diminution, so far the 
 public are laid under pecuniary liabilities, that might be avoid- 
 ed. If the construction and internal regulations of our Peni- 
 tentiaries were judicious, there would be less commitments for 
 crimes, and, of course, less expense in the yearly management 
 of our Penitentiaries. In truth, revenue, as connected with the 
 system of which we are treating, should never enter into the 
 views of our different state governments, as a primary object. 
 It should never clash, nor, in any manner, come in competition 
 
45 
 
 with the most secure and competent means of preventing 
 crimes, and of changing the characters of vicious men, who 
 fall under the sentence of the lav?. And yet one of the grand 
 complaints against the Penitentiary System is, that it will not 
 support itself. The states are brought annually in debt, and the 
 people are compelled to lose, instead of gaining wealth by its 
 existence. It presents a singular phenomenon in political 
 economy, where a Criminal Code is a source of public revenue. 
 Heretofore it has been supposed in every rational state of socie- 
 ty, that there would be a depraved, indolent and desperate por- 
 tion of the community, who in any event would prove a tax to 
 the rest of the people. If suffered to roam at large, they 
 would prey upon the peace, violate the security, and plun- 
 der the property of their fellow citizens. If confined to hard 
 labour, they might still compel the commonwealth to contribute 
 out of its annual resourses to their support. But after all, is 
 not the commonwealth the gainer by their confinement, even if 
 the State Prison that holds them does not pay its way? For 
 what would convicts do, were they in the full enjoyment of their 
 personal freedom ? They would commit constant depredations 
 on the community, and live in indolence and profligacy, on the 
 avails of their guilty deeds. We must compare what little they 
 would earn by honest labour for their support, if left at large, 
 with what they earn for their maintenance when confined in the 
 Penitentiary — not forgetting, at the same time, what society 
 would lose by their thefts, swindlings, counterfeitings, passing of 
 forged notes, and other offences, and then strike the balance. 
 In this view of the subject, no very alarming disparity would 
 appear. But this is not all. When abandoned men are suffered 
 to be abroad in the world, with all their evil propensities in full 
 vigor, they spread around them a moral contamination. They 
 withdraw others from the paths of peaceful industry, and dimin- 
 ish the productive energies of the country. 
 
 Several of our Penitentiaries support themselves ; others, it 
 isprobable, would also, could there be stability in the tenure of the 
 offices and trusts which are connected with them. The Commit- 
 
46 
 
 tee would certainly inculcate a prudent regard for frugality ; but 
 let not an ill-timed parsimony defeat moral ends, vitally identi- 
 fied with the tranquility and safety of society ; and not only 
 this, but even go to defeat its own immediate object, by the con- 
 sequences to which it must lead. The state of the country is 
 becoming more favourable to the debt and credit of our Peni- 
 tentiaries. We are placing more reliance, than heretofore, on 
 our internal resources, and more dependence on our domestic 
 manufactures, especially on those of the coarser kinds, and we 
 may find the labours of convicts attended with a more certain 
 remuneration. But whether this prove the case or not, we 
 should either renounce the Penitentiary System altogether, and 
 resort to some other method to punish and prevent crimes, or 
 pursue such a course of policy in its government as will render 
 it the most effective in its bearings and operations. This has 
 not been done when profit has been the moving spring of ac- 
 tion. 
 
 We have mentioned the want of proper diet as a defect wor- 
 thy of notice. Convicts who are consigned to hard labour 
 should be supplied with food that is coarse, wholesome and 
 nourishing, and they should have it in sufficient quantities to 
 meet the requisitions of nature. But here we should stop. 
 Every thing calculated to inflame the passions, and sharpen the 
 evil propensities of men ; every thing of a stimulating nature ; 
 every thing calculated to render a Penitentiary attractive and 
 pleasant, as a place of gratification to the appetite, should be 
 strictly avoided. The use of ardent spirits and exhilarating 
 liquors and fluids, in any shape, excepting as a medicine should 
 be rigidly precluded. This has not heretofore been done in 
 many of the State Prisons. A certain portion of spirituous 
 liquor has been dealt out daily to each convict, and their 
 food has been far better and more luxurious, than that of two 
 thirds of the honest mechanics in the community. The Com- 
 mittee do not say that this has been the case in every state ; but 
 it has been the case in their own, and in othei-s. If we are to 
 render public prisons, places where the desperate and depraved 
 
47 
 
 in the land find comfort and indulgence ; if tbey prefer to move 
 
 and breathe in their walls, to being in the possession of personal 
 liberty ; if when they leave their gates, they cast back a linger- 
 ing iook, on the daily gratifications which ihey enjoyed, the 
 terror of punishment is gone, and the dread of law is destroyed. 
 
 These are the views of the Committee, as to the defects 
 which have produced a failure of the Penitentiary System in 
 the United States. Others, perhaps, of a collateral nature, might 
 be enumerated ; but the leading evils have been fully designa- 
 ted, arranged, and amplified. We will concede, that the system 
 has not answered the expectations of its advocates ; -but a con- 
 cession on the other hand, is equally demanded, that it has not 
 bad a fair trial, or if it has had a rational test, proof has been 
 -afforded that it can be rendered more effectual than any other 
 mode of punishment. In Pennsylvania, for a number of years, 
 while there was a judicious selection of inspectors, while there 
 was uniformity in the internal regulations of the system, and 
 while there was sufficient room for convicts, its operation was 
 found peculiarly salutary, and the hopes and confidence of men 
 gathered round it. In the state of New-York, we can also 
 say with confidence, that for several years, while the manager 
 were men of public spirit, and of sufficient leisure to attend to 
 the careful and uniform management of our State Prison, that 
 it was productive of many public blessings that have since dis- 
 appeared, from the existence of neglect, and from various abu- 
 ses that have been pointed out in our general summary. 
 
 And even admitting all that the opponents of the system as- 
 sert, one question should be always candidly borne in mind : 
 suppose that the Penitentiary System had never been establish- 
 ed in the United States, what would have been our condition ? 
 It is believed by the Committee, that it would have been far 
 more intolerable than the present state of our criminal laws. It 
 will be perceived that the system has led to a change in the 
 Criminal Codes of every state in the Union, as far as it has been 
 adopted. They have been fundamentally reformed and san- 
 guinary and ignominious punishments, renounced. Death, crop- 
 
48 
 
 fjing the earsj burning the hand, exposure in the pillory, the 
 public infliction of stripes, and confinement without labour in 
 the county jails, for a term of years, have been abandoned, and 
 confinement to hard labour substituted. And after all, there is 
 no data to authorize the conclusion, that crimes have been more 
 numerous or atrocious, than they would have been, under the 
 old laws. Reformation was rarely, if ever, produced by their 
 administration, and many criminals have been driven to despe- 
 ration by marks of disgrace ; whereas several instances can be 
 pointed out, where convicts have been reclaimed and reformed 
 in our Stale Prisons, and been sent forth with a character for 
 industry, sobriety, and honesty. It is not practicable to insti- 
 tute any thing like a fair and conclusive comparison between the 
 operation of our present Criminal Codes, and the severe and cru- 
 el laws which they have superseded. Population has increased, 
 ^nd the history of nations shows us, that crimes and population 
 do not always bear the same proportion to each other. The 
 density of the latter has a material influence. Two hundred 
 thousand people residing in the space of two miles square, will 
 show a much more formidable criminal calendar, than the same 
 number scattered over a whole country, or a whole state- Vi- 
 ces are produced by the intercourse of tli« profligate ; and bad 
 passions mingle together, influence each other, and break forth 
 in deeds of guilt and desperation. Inequalities in the condition 
 of individuals, become more apparent ; property is less equally 
 distributed ; poverty is more perceptible, and want and misery 
 more common. New relations in society are created, new laws 
 are required, new offences arise, daily transactions are multipli- 
 ed, and the avenues to temptations are rendered more nume- 
 rous. Hence, it would not be judging by a fair standard, to 
 take the records of criminal courts, thirty years ago, and the re- 
 cords of the same kind of tribunals, at the present day, and af- 
 ter making allowance for the excess of population at the pre- 
 sent, over the former period, institute the contrast, and draw a 
 general deduction. But let the Penitentiary System be abolish- 
 ed, for a short time, and let the laws that were formerly in force, 
 
49 
 
 be again called into being, and administered for two years to 
 come, and we should then be able to derive some data on which 
 our conviction could rest. If we may judge of the operation of 
 Penal Codes in other countries, and in other ages, where tbey 
 have been severe and bloody — where life has been held cheap, 
 and corporal inflictions necessary, we shall find nothing to in- 
 duce the renunciation of our present laws. And, indeed, defec- 
 tive as the Penitentiary System has been, in its administration, 
 and disappointed as ardent and sanguine minds have been, in its 
 result, we shall yet endeavour to shuvv, that no substitute, which 
 the feelings, the sentiments, and the habits of the American 
 people would tolerate, can be embraced with effects and conse- 
 quences more salutary than those which have appeared under it. 
 We see crimes and offences multiply : we forget the changing 
 state of society ; we forget the increase of population ; — we for- 
 get the new restraints that are naturally demanded, and the fresh 
 temptations that are created ; we forget what might be the ten- 
 dency of different laws, and attribute the whole evil to the Peni- 
 tentiary System. Reason and reflection will correct this error 
 in judgment, and lead us to different views. 
 
 Thus far, the Committee have proceeded to point out what 
 they consider to be the leading defects of the Penitentiary Sys- 
 tem, in this country. They now enter on the second part of 
 their Report : In what manner can these defects be remedied, 
 and how can the System be rendered effectual .'' In designating 
 the foregoing errors, many of the improvements to be suggested, 
 have been negatively anticipated. The Committee recom- 
 mend : 
 
 First. That the internal construction of our Penitentiaries be 
 altered. 
 
 Secondly. That solitary confinement be resorted to. 
 
 Thirdly. That when solitary confinement is not adopted, the 
 classification of convicts be rigidly embraced. 
 
 Fourthly. That every convict sleep in a solitary cell. 
 
 Fifthly. That Penitentiaries be erected for juvenile offen- 
 ders. 
 
 7 
 
60 
 
 Sixthly. That a suitable diet be provided and adopted with 
 uniformity. 
 
 Seventlily. That the pardoning power be never exercised ex- 
 cepting in extreme cases. 
 
 Eighthly. That more caution be exercised in the selection 
 and appointment of the inspectors, governors, superintendants, 
 managers, agents, and keepers who have the controul and super- 
 vision of our Penitentiaries, and that there be more stability in 
 the tenor of their offices. 
 
 Ninthly, That the sentence to hard labour be enforced, with 
 certainty, rigor, and without favour or partiality, of any kind. 
 
 Tenthly. That a strict and undeviating regard be paid to 
 cleanliness. 
 
 Lastly. That less regard be paid to revenue In the adminis- 
 tration of the Penitentiary System. 
 
 In speaking of the construction of Prisons, it is not the inten- 
 tion of the Committee to propose specific plans for their erec- 
 tion. It is immaterial what may be the order and style of the 
 architecture of a Penitentiary ; it is immaterial what may be its 
 length, breadth, height and form of exterior ; — will it answer the 
 ends of reformation here proposed This is the only question 
 that is interesting to the Committee, at the present moment. 
 
 A Penitentiary should be sufiiciently large and spacious to 
 admit of the execution of any system of internal police, and of 
 any interior arrangement, in the treatment of convicts, that may 
 be deemed necessary. The plan on which it is contemplated 
 to construct the new Penitentiary, to be erected in the city of 
 Philadelphia, by the Pennsylvania government, meets the views 
 of the Committee, and will allow the full application of the re- 
 form, for which they contend. In the first place, there is to be 
 a lot of ground in the shape of a parallelogram, surrounded by a 
 wall six hundred and fifty feet long, and thirty-six feet highk 
 "Within this wall, the prison is to be erected, and to have two 
 hundred and fifty cells. They are to be built at some distance 
 from the outer wall, to be one story high, and about twelve feet 
 square ; — each cell to have a yard about it, of 12 feet by 20. 
 
51 
 
 This arrangement will permit each prisoner to be kept in com- 
 plete solitude, by day and by night, to eat and drink alone, and 
 to perform labonr by himself, throughout the day, when labour 
 is enjoined. The new Penitentiary at Pittsburgh, in the state 
 of Pennsylvania, has a double row of cells, making two hundred 
 and fifty in number, attached to the outer wall, showing an 
 exterior of an octagon shape. The cells are one story high, 
 with a separate yard to each cell. The principles adopted in 
 the construction of these Penitentiaries, would permit the full ap- 
 plication of the recommendations for reform which follow, and 
 thpy may be taken as a data on which our reasons can be ground- 
 ed A striking contrast will be exhibited, when they are com- 
 pared with the old Penitentiaries of Pennsylvania and New- 
 York, and those which the other states in the union have con- 
 structed. 
 
 The Committee now come forward and advocate a change in 
 our Penitentiary System, that will be radical and fundamental. 
 They are fully persuaded that nothing less than solitary con- 
 finement will ever enable us to give it a fair and full trial, 
 in the United States. If this fails, on its full ond complete 
 adoption, then the System is intrinsically defective, and out of 
 the compass of perfection. There is nothing hazarded in this 
 remark. If it were made by every friend of the System, on 
 both sides of the ocean, nothing would be jeopardized, for there 
 is the strongest reasons to believe, that with this improvement, 
 a confinement in a Penitentiary would prove the most effectual 
 and salutary punishment that has ever been devised, since the 
 origin of human government and human laws. And the Com- 
 mittee are happy to find this doctrine sanctioned, by most of 
 the very instructive, and interesting letters, which follow, in the 
 appendix to this Report. 
 
 Wherever solitary confinement has been tried, it has produ- 
 ced the most powerful consequences. In the State Prison of 
 Philadelphia, offenders of the most hardened and obdurate des- 
 cription — men who entered the cells assigned them, with every 
 oath and imprecation that the fertility of the English language 
 
52 
 
 affords — beings, who scoffed at every idea of repentance and hu- 
 mility — have, in a few weeks, been reduced, by solitary con- 
 finement, and low diet, to a state of the deepest penitence. 
 This may be set down as a general result of this kind of punish- 
 ment, in that prison. In the New- York Penitentiary, many 
 striking instances of penitence and submission, have also been 
 afforded. Where prisoners were peculiarly refractory and vi- 
 cious, they have been placed in solitary cells, and insulated from 
 every human creature. Even the messengers who carried them 
 their food, were enjoined not to utter a syllable, in the discharge, 
 of their diurnal duties. The most overwhelming consequences, 
 were the result. The spirit of the offender was subdued, and a, 
 temper of meekness, and evidences of contrition, displayed. A 
 resort to this discipline, never failed to accomplish its end. 
 
 But, it will be asked, do we recommend an entire suspension 
 of all labour in our Penitentiaries .'' VVe answer in the negative. 
 W,e are sensible that such a proposition would not meet with 
 currency in the different states, nor do we, at present, perceiv^ 
 the necessity of its general adoption. But the Committee, 
 would recommend, that solitary confinement be adopted, to a,, 
 far greater extent, than has heretofore been thought of in this 
 country. They would separate this punishment into two kinds : 
 first, solitary confinement, without labour ; and secondly, solita- 
 ry confinement, with labour Could these two methods, in the 
 treatment of offenders, be universally and exclusively adopted, 
 in the various Penitentiaries of this country, and all intercourse, 
 and all kinds of communication, among prisoners, be prevented ; 
 could they be wholly precluded from even seeing each others' 
 faces, a new era would soon appear, in the history our criminal 
 laws. 
 
 It appears to the Committee, that in all ca9es where the con- 
 vict is of a desperate character, and where his crimes are great 
 and manifold, that his imprisonment should be spent in complete 
 solitary confinement, free from all employment, all amusement, 
 all pleasant objects of external contemplation. Let his diet be 
 moderate, and suitable to a man placed in a narrow compass for 
 
53 
 
 tlie purpose of reflecting on his past life, and on the injuries 
 which he has done~ to society. This would produce other ef- 
 fects on experienced offenders, than imprisonment, with several 
 hundred brother villains, where free intercourse, by day and by 
 night, is permitted ; — where rich soups, and airy apartments are 
 prepared for their reception ; — and where a shool for guilt, is 
 established — where all the evil passions of man flourish in rank 
 and poisonous luxuriance. Six months solitary confinement, in a 
 cell, would leave a deeper remembrance of horror, on the mind 
 of the culprit, and inspire more dread, and prove a greater safe- 
 guard against crimes, than ten years imprisonment in our Peni- 
 tentiaries, as they now are managed. Who but would shudder 
 at the bare idea of returning again to the dreary abodes of 
 wretchedness, sorrow, and despair, in the narrow limits of a sol- 
 itary cell The memory of long and miserable days, and of 
 sleepless and wearisome nights, once spent there, would come 
 over the mind like the dark cloud of desolation, and terrify, and 
 agrrest the guilty, in the career of outrage. Employment tends 
 to destroy the efllects here pointed out. It diverts the mind, 
 calls forth a constant exertion of the physical faculties, and ren- 
 ders men unconscious of the lapse of time. To felons^ whose 
 minds should be broken on the rack and the wheel, instead of 
 their bodies, and who can only have their obstinate and guilty 
 principles crushed and destroyed, by severe treatment ; no kind 
 of labour should be given, while it is intended that solitude, 
 complete and entire solitude, should be left to do its eflectual 
 work. Sooner or later, this mode of punishment will be adop- 
 ted in the United States. It is founded on sound principles of 
 philosophy, applicable to the nature of the human species. The 
 term of solitary confinement, without labour, will be defined in 
 our statute books for specific offences, and enter into the sen- 
 tence of our criminal tribunals. Wherever it has been tried, it 
 has been tried with success, in this country. No time should 
 he lost in giving it a more full, ample, and satisfactory experi- 
 ment. "Man is a social being," says Governor Adair, in his 
 last speech to the Legislature of Kentucky. — " The intercourse 
 
64 
 
 of his fellow man is essential to his happiness, and necessary, for 
 the expansion of those noble faculties, which distinguish liim 
 above all other animals. Unbroken solitude is the grave of his 
 genius and his joys. Virtue herself wanders with melancholy 
 aspect in the regions of exile, and sinks, with despair- 
 ing anguish, amid the gloom of that dungeon, from which 
 she is never to emerge. But absolute and compulsory sohtude, 
 when adopted as a punishment, and inflicted for a season only, 
 has been found productive of the most beneficial results. It is 
 the inquisition of the soul, and the tyrant of every vice. It 
 may be regarded as scarcely possible that the guilty prisoner 
 can long inhabit a cell where darkness and silence reign, undis- 
 turbed arbiters of his doom, without some relenting of purpose, 
 some real penitence of heart. The moral faculty regains its 
 lost dominion in his breast, and its solemn responses are regard- 
 ed as oracular. He acquiesces with abated resentment in the 
 justice of the sentence by which he suffers. That audacious 
 spirit of resistance to the established order of society, which 
 drove him to the commission of every outrage, gives place to 
 the mortifying sense of his weakness and dependence ; and he 
 ardently desires, as the first of blessings, a return to that very 
 society from which his crimes have banished him. Hence ori- 
 ginates a disposition fitted for the reception of moral and reli- 
 gious instruction — a conformity to the requisition of his present 
 condition — a spirit of active industry, emulation and amend- 
 ment, the means of present favour, and future restoration ; and 
 all the benefits which are consequent on regular habits and 
 amended morals."! 
 
 The other kind of solitary confinement, might be designated 
 for the most hardened felons, after they had passed through a 
 sufficient course of dicipline in solitude, without labour. Their 
 first relief should be the application of their time to that sober 
 industry, which they had discarded, for the devices of guilt and 
 the commission of crimes, before their sentence to the Peni- 
 
 J Vide Gov. Adair's Speech to Leg. of Kentucky. 
 
55 
 
 tentiary. It ''ould also be proper, for another class of criminals, 
 of a lower grade, who might be doomed to solitary imprison- 
 ment and hard labour in the first instance. It is believed, by 
 the Committee, that the punishment would be found severe, 
 salutary and effective. A long period ot solitary confinement, 
 without any labour would have an unfavorable effect on the fu- 
 ture ability of the convict to be useful in his peculiar pursuits. 
 His mechanical capacity might be impaired by long inertness. 
 But when solitude and labour could be combined, consistently 
 with the design of punishment, the execution of the law would 
 not give cause of objection to those who look at our State Pri- 
 sons, more with a view to loss and gain, in point of revenue, than 
 to any thing else. It is contended that the solitary confinement 
 here spoken of, would be suitable to all crimes of a secon- 
 dary degree, and that it would tend to prevent offences 
 in two ways. It would have a lasting and powerful effect on the 
 mind of the offender himself. If the reform of convicts is with- 
 in the reach of any human laws,-:we might expect it here. It 
 would also prove a restraining cause in the evil hour of temp- 
 tation, when its bitter consequences were recollected. It would 
 also accomplish much, by the means of example, if example 
 can ever hold the reign of terror over the vicious and profli- 
 gate. 
 
 Much confidence is cherished, that if these two grand meth- 
 ods of punishment, could be rigidly enforced, in our Penitentia- 
 ries, and no other adopted, that a more efficient and salutary 
 criminal code would be exhibited, in the Uuited States, than 
 has been seen in any other country. The term of imprison- 
 ment might be much shorter than it is now. Instead of ten 
 and fifteen years, it could be reduced to less than half the num- 
 ber and so throughout the whole statute book, on the same prin- 
 ciple of reduction. 
 
 It is contended, by many, that solitary confinement is too se- 
 rious a punishment for our fellow beings ; that it will drive them 
 to madness and mental alienation, or send them rapidly to the 
 grave. We are happy to find that its contemplation, in the 
 
56 
 
 »iiiicl of a vii'tuuu:j and reflecting community, is aiicnHpd wi tli 
 such feelings of revolt : for, this is an indication of its sumniaiy 
 and salutary effects, on the most guilty and knavish of our race. 
 They, too, will catch the abhorrence, and feel an interest to 
 atoid the suffering to which it points. We are. however, incli- 
 ned to think, that the fatal effects of solitude and confinement, 
 are exagerated. We do not believe that they would be so de- 
 structive of life and sanity, as it is imagined. Men have often 
 been cast into the deepest and the darkest dungjeons, to serve 
 the views of despots and the policy of governments, on the 
 other continent, and existed there, for years, on the poorest food, 
 and again appeared before the face of the sun, with their bleach- 
 ed locks and sallow countenances. If, however, its tendency is 
 so overwhelming, its adoption as a punishment will supply a 
 desideratum in the American community. 
 
 But we cannot expect that all the states will immediately fol- 
 low our views. Revenue, and not exclusively the prevention 
 of crimes, will enter into their public policy. We regret to 
 say, that convicts will still be suffered to have intercourse, and 
 to mingle in common, in order to carry on particular manufac- 
 tories, and to prosecute mechanical pursuits, which demand 
 strong physical power. In time we trust that a wise principle 
 of economy will be cherished, and the ultimate, and not the 
 direct loss, to the community, by a method of punishment, 
 that defeats its own object, will be duly borne in mind. But 
 while the suppression of all intercourse among criminals is 
 neglected, we must turn our attention to the most wise means of 
 managing our Penitentiaries with this defect. This brings us 
 to consider the necessity of classification. 
 
 If the state governments will go on, shutting up some three 
 or four hundred convicts in a Penitentiary, and carry on manu- 
 factories, and a course of business, that need their joint labour, 
 the division of their persons into classes will prevent many of 
 the evils now (lowing from their promiscuous and indiscriminate 
 intercourse. Let the most hardened and guilty criminals be 
 
kept bv themselves, and the more trivial offenders be also at- 
 tached to a distinct denomination. Let those of an interme- 
 diate grade, in guilt, have their own class and department. 
 These divisions might be extended, and subdivisions be institu- 
 ted, to suit the age, disposition, obstinacy or penitence, of the 
 felon. But we shall be asked, how is the discrimination to be 
 made ? Who shall fix on the standard by which a division into 
 classes shall be regulated ? And we would ask, in return, where 
 is the radical difficulty in distinguishing the character of con- 
 victs in a Penitentiary ? In the first place, the records of their 
 eonviction, afford prima facie evidence of the degree of turpi- 
 tude of which they have been guilty. A notorious offender will 
 find his fame precede his entrance upon his new life ; nor will 
 men remain long in a State Prison, without betraying their 
 strong propensities and ruling passions in visible indiscretions 
 of conduct. A sign of humility, contrition and obedience, will 
 be equally visible. Those tu whom is entrusted the govern- 
 ment of a Penitentiary, will have abundant means of drawing 
 correct lines of separation, between the vicious and the super, 
 latively vicious. Take a Penitentiary containing two hundred 
 tenants ; divide them into eight classes, and let each class be 
 kept unconnected with the others ; let all the classes be kept 
 under strict regulations, and rigid bye-laws, and as few words 
 be spoken as possible. Several beneficial effects must result. 
 The work of contamination would be arrested ; the distinction 
 displayed in the classification would shew, that even in a State 
 Prison, virtue, in whatever degree it existed, was esteemed 
 above moral abandonment ; and men, by being placed in small 
 numbers, would reflect more on their individual conditions. 
 Instead of criminals being huddled together, in one rude con- 
 gregation, where all lines and contrasts are obliterated and de- 
 stroyed, and where the work of moral disease is continually ad- 
 vancing, as is now the case in many Penitentiaries, we should at 
 least see some offenders coming out from among the multitude 
 of the condemned, redeemed from moral apostacy. 
 If classification is not adopted, then, as a choice of cxpe- 
 
 8 
 
58 
 
 dients, the Committee would advise another remedy for exist- 
 ing evils. 
 
 There was a day when the New- York State Prison (2) was con- 
 ducted with a strictness, precision, and uniformity, that preclu- 
 ded all conversation, and all the evil consequences of the in- 
 culcation of corrupt maxims, profligate notions, the communi- 
 cation of desperate plans, and the relation of profligate adven- 
 tures and exploits. The utterance of a syllable was punished 
 with confinement In a solitary cell. The restraint on the crimi- 
 nal was severe, and it rendered his confinement odious, and 
 mentally oppressive. Aversion, deep and settled aversion, for 
 the prison walls and all within them, was contracted ; and that 
 aversion stuck a root in the soul that no time extirpated. T his 
 community, this commonwealth of felons, that now exists in 
 our Penitentiaries, must be broken up. To this the Committee 
 earnestly call the atteniion of the diflerent states : and they do 
 ardently hope, that when convicie are suffered to labour and 
 spend their days together, in large numbers, or even in small 
 ones, that all conversation, that all the chances of evil commu- 
 nication, will be rigorously prohibited, by the enforcement of 
 strong and severe bye-laws. Great good will follow. 
 
 At Auburn, in the state of New -York, the classification sys- 
 tem is now in operation, on principles similar to those here laid 
 down. It was recently commenced, and the DiOst beneficial re- 
 sults are expected. 
 
 We would next call the attention of the public to another 
 evil, that requires immediate correction. It is absolutely es- 
 sential to any thing like success in the Penitentiary System, 
 that criminals should sleep in solitary cells, even when they 
 are not kept in solitude during the day. The practice of turn- 
 ing ten, fifteen, or twenty, into the same sleeping apartment, has 
 been sufficiently noticed. Every criminal should retire at sun- 
 set to his own domicil, and there remain, free from the sound 
 of a human voice, until the rising of the next morning's sun. 
 
 (S) In 1800, and at other periods. 
 
59 
 
 This would at once destroy those evil and dans^erous conse- 
 quences, that have been brought into existence and nourished, 
 during ihose hours that should be devoted to reflection and re- 
 pose. It would leave human beings in solitude and darkness, 
 to turn their thoughts on the causes that placed them in their 
 narrow and gloomy mansions, and carry back their memories 
 to that early dereliction from duty, which placed them at the 
 bar of a criminal court, and incurred the heavy sentence of the 
 law. It would lead them to contrast innocence with guilt, and 
 to appreciate the worth and blessings of moral rectitude. It 
 would tend to suggest amendment, and transport the mind to a 
 future period in the prisoner's life, when better days and hap- 
 pier nights would again pass over him ; when he would be re- 
 stored to the comforts of social life, and to the wide and alluring 
 theatre of activity and enterprise. It would , in fact, render the 
 nights of the prisoner a severe scene of mental tribulation, if 
 the least spark of feeling and contrition was left. The worst 
 of men will think at times, and the hour of midnight, is, of all 
 hours, the most horrid to a guilty conscience, when the mind is 
 left to that retrospect, that brings agony and remorse. Could 
 all our Penitentiaries be constructed like those mentioned in 
 Pennsylvania, the alteration in the treatment of convicts, here 
 advocated, would be secured at once, with many other benefits; 
 with the prevention of many horrid evils that now exist, and with 
 the promotion of individual and public good. The Committee will 
 next speak of the erection of new prisons for juvenile offenders. 
 
 The poHcy of keeping this description of convicts complete- 
 ly separate from old felons, is too obvious to require any ar- 
 guments. Nor does it seem wise to place young felons, who 
 have been guilty of but one offence, and who can be reclaimed 
 and rendered useful, in that severe state of punishment that 
 attends solitary confinement. In most instances, they have no 
 inveterate habits to extirpate. Their characters are not form- 
 ed- No moral standard of conduct has been placed before their 
 eyes. No faithful parent has watched over them and restrained 
 their vicious propensities. Their 1 ives exhibit a series of abera- 
 tions from regularity — chain of accidents that has rendered 
 
60 
 
 them the Tictims of temptation, and the sport of adversity. 
 They have been sent from place to place, subsisted by preca- 
 rious meanSj'or been left to combat with poverty, want, and the 
 inclemency of the seasons, by the exercise of their own inge- 
 nuity. Every thing about them has been various and unsettled ; 
 and in the unfortunate hour of temptation, while under th^ 
 pressure of want, or when seduced into the giddy vortex of de- 
 praved passions, they have offended against the laws, and been 
 sentenced to the State Prison. There are exceptions to these 
 remarks, in a few solitary instances of premature and settled 
 •baseness ; but this view has a very extensive application to the 
 cases of juvenile offenders in our large towns and cities. In 
 the interior it is very rare that boys are indicted for crimes. 
 What then is the duty which devolves on our legislators ? To 
 use every effort to bring back these unhappy youth to society. 
 They should be restored, as far as possible, to the rights forfeited 
 by an early departure from the line of rectitude. This can 
 never be done, under a system of punishment, that is suitable 
 to the most obdurate and abandoned criminals. The human 
 mind has its seasons and stages, when specific remedies are, 
 and when they are not, applicable. The Committee would 
 therefore recommend, thai prisons be erected in the different 
 states, exclusively for juvenile convicts. In the larger states, 
 there could be a division into districts, and a place of confine- 
 ment erected in each. In Massachusetts there is a prison for 
 young convicts in each county. 
 
 These prisons, the Committee conceive, should be rather 
 schools for instruction, than places of punishment, like our 
 present State Prisons, where the young and the old are confined 
 indiscriminately. The youth confined there should be placed 
 under a course of discipline, severe and unchanging, but alike 
 calculated to subdue and conciliate. A system should be 
 adopted that would prove a mental and moral regimen, if we 
 may be indulged in the expression. The wretchedness and 
 misery of the offender should not be the object of the punish- 
 ment inflicted ; the end should be bis reformation and future : 
 
61 
 
 usefulness. Two objects should be attended to : first, regular 
 and constant employment in branches of industry, that would 
 enable the convict to attain the future means of livelihood : and, 
 secondly, instruction in the elementary branches of education, 
 and the careful inculcation of religious and moral principles. 
 The latter would be vitally important. 
 
 Most of the young offenders in the different State Prisons, so 
 far as the knowledge of the Committee extends, have no trade 
 or mystery. They have never been put with the industrious me- 
 chanic, or been placed to labour with the cultivators of the 
 soil. Their lives have been chequered with the most idle ha- 
 bits. Hence, one great object should be, to give them a set- 
 tled occupation for life. One part of their time should be 
 devoted to those mechanic pursuits, to which their genius may 
 be adapted. Under strict and rigid regulation, let them go to 
 their daily toils, and each day acquire some new principles of 
 knowledge. Emulation should be excited as far as possible, 
 and extraordinary exhibitions of skill, or great and successful 
 efforts in industry, be rewarded by marks that would call forth 
 an ambition for excellence. What would be the effect We 
 should see a little society of boys, growing up in useful em- 
 ployments, imbibing settled and lasting habits of the most in- 
 dustrious kind. They would go forth, at the end of their con- 
 finement, with a capacity to obtain an honest living — with the 
 means of acquiring wealth and fortune. Another part of their 
 time should be spent in the acquirement of elementary educa- 
 tion, in all the branches of knowledge requisite for the ordinary 
 transaction of business. The expense of giving young culprits 
 this advantage, would be small, and its consequences of the 
 most salutary and durable nature. The force of education is 
 no where better understood, and no where more highly appre- 
 ciated, than in this country. Its connection with the duration 
 and prosperity of our public institutions, and its importance to 
 the peace of society, and the security of individual rights, are 
 daily seen. Why then neglect to give instruction where it is 
 most required — to that portion of the rising generation, that 
 
62 
 
 have fallen victims to early guilt, in a great measure, for the 
 want of it. With the elementary instruction here spoken of, 
 plain, simple, and practical moral principles, like those promul- 
 gated by our illustrious countryman, Benjamin Franklin, should 
 be constantly blended; and great care be used in selectingteach- 
 ers and superintendants, who, with mild manners, humane dis- 
 positions, and benevolent spirits, will watch over their charge 
 with fidelity and success. If such a policy can have no effect 
 towards reforming our juvenile offenders, then we may despair 
 of effecting anything, over which we can pour forth our con- 
 gratulations. If industry and education — if strict, wholesome, 
 and sound moral discipline — if rendering places for their con- 
 finement abhorrent to the views, feelings, and inclinations 
 of every vicious youth, by an entire new life within their boun- 
 daries, equal in strictness and regularity to that of monastic es- 
 tablishments, cannot produce a salutary change, then we may 
 mourn over the lot of our race, and rest under the conviction, 
 that there are cases where hope has neither refuge or resting 
 place. (3) 
 
 As to the construction of these prisons for juvenile offenders, 
 it is believed that they should sleep in separate and solitary 
 cells, and that during the day, they should be divided into class- 
 es. Solitary confinement during the day does not seem to be 
 called for, in the case of these culprits, nor would it be consist- 
 ent with the regulations here advocated ; but the necessity of 
 classification is obvious. There will be shades of guilt, among 
 young, as well as among old criminals ; and the evils of conta- 
 gious vice appear in both cases. There will also be differen- 
 ces in dispositions, capacity, habits and age, that will demand 
 discrimination. The Committee do not feel themselves called 
 on to act in the capacity of architects, and to draw plans 
 for edifices ; they are called on to make suggestions, as to 
 
 (3) The Committee are liappy to remark, that the new Penitentiary erected at 
 Auburn, in the state of JNew-Yoik. has one wing containing separate r.eWs, cal- 
 culated for the solitary confinement of convicts from sun-set to sun-ri»e. 
 
63 
 
 principles and their application. They have recently perused 
 a small pamphlet, entitled " Description of a design for a Pen- 
 itentiary for six hundred juvenile offenders, as recommended 
 by the Society for the improvement of Prison Discipline in 
 London," (4) from which they take the following extract con- 
 cerning classification : — " The whole number of juvenile pri- 
 soners, viz. 600, are divided, according to this design, into nine 
 classes ; and such is the construction of the building through- 
 out, that a most effectual and constant separation of these nine 
 classes can be preserved at all times, whatever be their occupa- 
 tions, whilst all of them are going through their regular, and, 
 generally speaking, the same discipline, without any interrup- 
 tion or interference with each other. To every class is appro" 
 priated a distinct prison establishment, whilst the power of com- 
 plete superintendance is placed in the hands of the governor. 
 
 " Every class has a separate work room, about ninety feet in 
 length, which is to be divided off at the lower end for a school 
 room, as above mentioned ; a dining room and airing room, 
 with a covered colonade, in case of rain ; a set of shower 
 baths, washing sinks, &c. ; a separate stair case, leading to the 
 night cells ; a solitary cell, for the punishment of the refractory 
 of the class ; a separate compartment in the chapel, fitted up 
 with benches ; also an area for such species of work as may 
 best be carried on out of doors. By means of the moveable 
 doors on the cell galleries, the requisite number of night cells 
 are provided, and which may be varied, from time to time, ac- 
 cording to the increase or diminution of prisoners ; at the same 
 time giving to each prisoner a separate cell; an arrangement 
 which is earnestly recommended, as essential to the health and 
 moral welfare of prisoners. 
 
 " Such is the nature of this design, that it would be by no 
 means difficult to increase the present number of classes to a 
 very considerable extent ; but the apparent advantage, in this 
 respect, would be greatly exceeded by the loss of many other 
 
 (4) Published in London, 1819. 
 
64 
 
 essential advantages. It has, therefore, not been made an ob- 
 ject, in the preparation of this design, to obtain a great, but a 
 sufficient degree of classification, combined with the most ef- 
 fectual and invariable separation of each class, and at the same 
 time, to provide that the power of constant and complete in- 
 spection should be placed, as much as possible, within the reach 
 of the governor." 
 
 It will be said, in answer to all this plan of improvement, 
 that its expenses will prove an invincible obstacle to its execu. 
 tion. Again we say, what is the object of Penal.Iaws ? Sup> 
 pression of crime, and the reform of criminals, is the answer^ 
 Where then is the fault of our proposition ? If a better one 
 can be suggested, we shall be among those to hail its annuncia- 
 tion with feelings of pleasure. But let us take the other view, 
 and say a word of this alledged departure from economy. 
 
 Which, then, is the cheapest, to take five hundred juvenile 
 offenders, and render the great part of them honest and useful' 
 men, by a new course of punishment, attended with no extraor^ 
 dinary expense, or to thrust them into our present Penitentiarisg, 
 with a moral certainty of their coming out with new vices and 
 with fresh desperation — with the moral certainty of their eithef 
 being in prison, as a public burthen, their whole lives, or of 
 their living, when out, by depredation and knavery ? If reform- 
 ed, their industry will contribute to the productive energies of 
 the community, and augment its aggregate revenues ; if idle, 
 their labour will be lost, and if dishonest, they will diminish the 
 avails of the labour of others ; to say nothing of their example 
 and baneful influence, as a component part of a great popula* 
 tion. Upon every rational ground, therefore, the apprehension 
 of additional expenditures affords no arguments against the re>- 
 form here pointed out. 
 
 We fear that the younger states will not immediately embrace 
 any thing like the plan for reform here recommended, where 
 they have recently erected Penitentiaries. With the exception 
 of stales along the sea-board, these juvenile convicts are few in 
 number, and the present Penitentiaries will be used for the old 
 
65 
 
 and the young. Every principle of reason and policy dictate 
 if this is to be the fact, that in every Penitentiary in the United 
 States, the young offenders should be kept by themselves, and 
 that instruction should be afforded them. It is no less humane 
 than wise, to give them those steady and useful employments, 
 which will enable them to live honestly upon their earnings, af- 
 ter their term of service, in the Penitentiary expires. 
 
 While, in this country, we are doing much to prevent crimes, 
 by the growing establishment of Free schools and Sunday 
 schools, and the education of youth is an object of vital con- 
 sideration, it is to be hoped, that juvenile delinquents will nof 
 escape the attention of the wise, the good, and the public spir- 
 ited. We rejoice that in England, the reformation of juvenile 
 offenders is commanding the attention of men who combine 
 station, power and talents — who stand among the ornaments of 
 the British empire, and>f the civilized world. Their publica- 
 tions, their eloquence, and their appeals to public conviction, 
 are strong and spirited. They cross the ocean, and reach 
 hearts on this side of the wide waters, which beat in the glori- 
 ous cause that commands their zeal and exertions. 
 
 If we would render our Penitentiary System effectual, we 
 must not render our public prisons attractive to the idle, the 
 needy, and the profligate, by holding out the idea of comfort 
 or sumptuousness. Felons must not eat better food, find their 
 animal spirits better sustained, be more comfortably clothed, 
 and dwell in more commodious apartments, after sentence in a 
 court of justice, than they ordinarily enjoyed, in the busy world, 
 before its freedom was taken from them. Personal liberty is 
 dear to mankind, and its loss is repulsive to the mind ; still re- 
 pugnance is diminished, when something like an equivalent is 
 found for its privation, in an improved state of existence. To 
 men destitute of shame, and dead to the scorn of the commu- 
 nity, the institution of a comparison between the mode of liv- 
 ing in one place and another, is natural. All moral contrasts are 
 forgotten. What shall we eat, what shall we drink, what shall 
 we wear, how shall we sleep, and what company shall we keep, 
 
 8 
 
66 
 
 are subjects that occur, when the thoughts of public delinquents 
 are turned to a confinement in the Penitentiary What aspect 
 then should our Penitentiary present ? A place where every 
 thing conspires to punish the guilty. There should be nothing 
 incident to it that is either pleasant or inviting. It must be ob- 
 vious to all who reflect, that it would be an easy matter to give 
 a direct encouragement to the increase of crimes, by the man- 
 ner of treating convicts. Let them set down at the richest, and 
 most sumptuous tables, after conviction ; let them be regaled 
 with stimulating liquors ; let them be clothed with all comfort, 
 inhabit spacious and airy apartments, and live with fit compan- 
 ions for the wicked, and how many felons would literally seek a 
 residence, even for life, in a State prison .'' Many now sent there, 
 it is true would not. These inducements would not reach their 
 condition. But hundreds and thousands there are, who have no 
 settled means of livelihood, who know not where the end of a 
 year, or even a month, may find them, who are pressed in their 
 resources for bare being, to whom the considerations here sug- 
 gested most powerfully appeal. What conclusion does this re- 
 flection sanction .'' It goes to convince us, that so far as crimin- 
 als, of the most depraved character, can realise more of the 
 comforts of life in a State Prison, than out of it, so far it pre- 
 sents allurements to their eyes. And even with those of a less 
 abandoned description, a confinement in a Penitentiary will 
 have less terrors, in proportion as it afibrds more sources of en- 
 joyment. The force of these remarks may not be realized by 
 those who have thought on the Penitentiary System in the inte- 
 rior of the Union ; but to those who have visited the prisons 
 along the Atlantic coast, and seen them filled and crowded with 
 the former tenants of European prisons, and old offenders who 
 were born on our own soil ; who see them containing the most 
 needy, desperate, and hardy vagrants and outlaws that ever in- 
 fested society, whose bread for years, has been obtained by 
 fraud and plunder, they will not be thought so inapplicable to 
 ihe grand matter of our inquiries and investigations. 
 But convicts must live, will be the answer to these remarks. 
 
67 
 
 True — convicts must live ; and convicts who are doomed to 
 hard labour mOst so subsist, that they can find their strength, 
 vigor and spirits duly sustained. We would therefore say, that 
 on the subject of diet, two principles should be followed. As it 
 is hoped and trusted, that solitary confinement will be hereafter 
 adopted in our Criminal Codes, to a great extent, it is recom- 
 mended that in such cases, moderate and low diet be meteJ 
 out to criminals. While an attempt is made to inflict mental 
 discipline, it is necessary that the food of the criminal should 
 not be of that description, that would serve to counteract the 
 design. We do not say that bare bread and water should al- 
 ways be resorted to. In some instances it will be found requi- 
 site ; and in all instances of complete seclusion without labour, 
 the cheapest diet seems the most proper. On the other hand, 
 when convicts are to labour, their food, in the opinion of the 
 Committee, should be nutricious, simple and wholesome, but of 
 the coarsest kind. Nature should be supported by sufficient ali- 
 ment ; but every thing like good living should be discarded. 
 All spirituous liquors, of every description, should be rigidly 
 prohibited. The use of tobacco as it exilerates the spirits 
 seems a proper object of exclusion ; (5) and as to all species of 
 food and drinks, that contain any stimulating quality, they should 
 never be used, excepting as medicine. It is unnecessary to 
 draw up a bill of fare, or to say, in this place, what convicts 
 should, and what they should not eat, in detail; this is a sub- 
 ject easily determined by judicious men who may be called up- 
 on to manage our different Penitentiaries. There is no diffi- 
 culty in saying what diet will meet the policy which is here ad- 
 vocated ; and in closing this head, the Committee do say that 
 in several State Prisons, too little attention has been paid to it. 
 It is one that at all times deserves attention and vigilance. 
 
 We have spoken at large on the destructive effects of the too 
 frequent exercise of the pardoning power. We spoke with free- 
 dom, but without allusion to persons or to Chief Magistrates. 
 
 (3) TUb was formerly done in the Philadelphia Peniteotiary. 
 
86 
 
 We intended that our strictures should be abstract and general 
 in their application. In bringing up the subject again, to sug- 
 gest the remedy, our task is easy and simple. Let no convict 
 be pardoned. Let the display of executive clemency be so rare 
 and seldom, that it vrill amount to a virtual denial of all appli- 
 cations for its interposition, and a destruction to the hopes and 
 expectations of all convicts. We must come to this, or find all 
 attempts to perfect the Penitentiary System, fruitless, and worse 
 than fruitless. But what is to be done .'' Two things are to be 
 done, if we mean to correct the evils that we arraign. In the 
 first place, persons of respectability, influence and moral worth, 
 must abstain from passing off shameful impositions upon our 
 Chief Magistrates, although done with the best intentions, and 
 the purest motives. The practice of signing petitions for par- 
 dons, is one of a most pernicious and dangerous kind. It pal- 
 sies our penal laws, embarrases the Chief Magistrate, and, in ef- 
 fect, promotes the increase of crime and guilt. It creates un- 
 just discriminations, and in many instances, violates the moral 
 obligations of citizens, if we are bound by moral obligations, lo 
 do that which will promote the prosperity and happiness of the 
 Commonwealth, and to refrain from all acts that produce their 
 dimunition. To see the most distinguished and benevolent 
 members of the community, heedlessly putting down their 
 names to an application for the pardon of a convict, who has 
 forfeited every claim to any sympathy or humanity, but what 
 the stern mandates of justice permit us to cherish with proprie- 
 ty, presents a most melancholy comment on the weakness of hu- 
 man nature, and a total want of all forecast and prudence. The 
 Chairman of this Committee has seen lists of names, for which 
 the utmost respect is ever cherished, at the bottom of applica- 
 tions, for the most notorious villains that ever faced a court of 
 justice. Gamblers, and the keepers of gambling houses, where 
 the sons of our first citizens and the inmates of our most respec- 
 table families, have been seduced, fleeced and ruined — coimter- 
 feiters, swindlers, murderers, and pirates—hostes humani generis, 
 who roam and plunder over the seas, can strike the chord of 
 
e9 
 
 sjrmpatliy and send forth appeals that reach the bosoms and 
 co ninand the interposition of persons, who should shrink, with 
 the feelings of abhorrence, from the touch of their petitions. 
 We call the attention of the American public to the very able 
 letter of Mr. Raymond, contained in the appendix to this Re- 
 port, in which a striking instance will be found to corroborate 
 the correctness of these strictures. A murder was perpetrated 
 of the most cold-blooded, wanton and shocking character, on a 
 helpless and unoffending man, who appealed to his destroyers as 
 the father of a poor little family, by every tie that can dis- 
 arm cruelty and vengeance ; and yet coolly, deliberately, and 
 tranquilly, he was shot through the heart, while manacled to a 
 tree in the wilderness. The murderers were condemned by the 
 laws of the land. A petition was got up for their pardons, and 
 bnndreds and thousands signed it of the principal citizens of the 
 union. Not only men but women signed it with alacrity, while 
 the wife and orphans of the immolated victim, were forgotten 
 and left to weep over the untimely fall of their only protector 
 who was earning bread for their support, when his blood was 
 sought by those fiends in the form and attire of men. We have 
 no right to look for firmness on the part of a Chief Magistrate, 
 and for his prompt rejection of petitions for pardons, while such 
 reprehensible practices are continually indulged by men whose 
 cool and reflecting moments would dictate a different course of 
 conduct' It is painful to see wives and families deprived of their 
 bread, by the commitment of a felon to the Penitentiary ; it is 
 afflicting to see an aged father mourning over the incarceration 
 of an undutiful and profligate son ; but what then ? Shall the 
 prison doors be cast open, and convicts be let forth to commit 
 depredations anew, and our Criminal laws be rendered a mere 
 mockery ? Many of the applications sent to the Governor of 
 the state of New-York, contain the most absurd allegations, 
 and the most wilful misrepresentations ; and the late annual Re- 
 port from the Auburn State Prison alleges, that " the business of 
 procuring pardons has become the steady and profiitable em- 
 ployment of many individuals who attempt the grossest imposi- 
 
70 
 
 tions upon the Governor." (6) When the obtaining of pardons 
 becomes a profession and a settled pursuit, and those who en- 
 gage in the vocation are favoured with the names of those 
 members of society to whom we look to give a tone to public 
 sentiment, the prospect of reforming criminals is in truth dark 
 and hopeless. We call upon men in power and authority — we 
 call upon the friends to the peace and the order of society — we 
 call upon the friends of sound laws, and upon the friends to the 
 rigorous and undeviating execution of sound laws, to raise the 
 loud voice of reproof against the practice of embarrassing the 
 Chief Magistrates of our states, with petitions for pardons. And 
 we do also call upon the members of the Bar to refrain from 
 acting in their legal capacity to procure the liberation of felons 
 who have been justly condemned for their transgressions. (7) 
 
 The Committee also hope that those who are entrusted with 
 the pardoning power will feel the importance of exercising it but 
 seldom, and never but in extreme cases. If those in the com- 
 munity who should strengthen the arm of justice and render the 
 laws sacred and certain, will send up their petitions without rea- 
 son or consideration ; if women and children are presented as 
 instruments to obtain the relaxation of Penal statutes ; it is to be 
 hoped, that there will be a firmness and decision in the breast 
 of the Chief Magistrates to enforce the uniform and rigorous 
 operation of the laws, as the only sure means of protecting the 
 rights of individuals, and guarding the peace and safety of the 
 great body of the people, in their aggregate capacity. But we 
 are told, and told truly, that there is not room in many of the 
 Penitentiaries, to contain all the convicts, and that pardons are 
 granted of necessity. This we know has been the case with our 
 own State Prison, both under the administration of the late, and 
 the present Governor. But whose fault is this .'' Not the fault 
 of the Chief Magistrate. It is the duty of every Legislature to 
 
 (6) See Report of Inspectors to Legisla. Jan. U, 1822. 
 
 (7) Sir Edward Coke pointed out the cv'.l tendency of granting frequent par- 
 dons in the reign of Queen Elizabst'j. 
 
71 
 
 see that due means are afforded to enforce the laws If more 
 room is wanted for convicts, more must be provided. Let our 
 Chief Magistrates, when necessary, call the attention of the 
 Legislature to this point, and then let them stand by, for justice 
 to take her course. This would produce a better remedy, than 
 the incessant granting of pardons. To conclude on this sub- 
 ject, the Committee are cheered by the firm conviction, that a 
 feeling is daily and rapidly growing up in the different states of 
 the Union, that will ere long, render the frequent interposition 
 of pardons, an object of public reprehension, and popular re- 
 proach- This sentiment is more and more visible in the prints 
 and papers that traverse the nation. Certainty in the execution 
 of Penal laws will be demanded on principles of self-preserva- 
 tion. 
 
 The judicious selection of persons to have the control, go- 
 vernment, and administration of our Penitentiary System, is an 
 object of the first importance, as we look to its improvement and 
 perfection. In the enjoinment of this requisition, we mean to 
 include agents, keepers, directors, governors, inspectors or man- 
 agers, and all other officers of whatever name, who may be ap- 
 pointed to exercise discretionary power in and over State Pri- 
 sons. Those who are included in this enumeration, may be 
 properly divided into two classes — those who administer the 
 internal police of Penitentiaries, and those who have charge oi' 
 their general superintendance. The person or persons who 
 have the immediate and direct management of convicts in a 
 State Prison, have a trust confided to them of a most delicate 
 and difficult nature. They are called upon to deal with cha- 
 racters of various descriptions, whose dispositions are different, 
 and whose passions exhibit all the shades of turpitude and 
 desperation. This is more particularly so, in the present state 
 of our Penitentiaries, where a large number of convicts are 
 placed together ; where bye-laws and regulations must be made 
 to govern their intercourse, and where a kind of special cogni- 
 zance is had over the actions of each individual. Was each 
 criminal kept in ^ solitary cell, by day and by night, fewer difijr 
 
cullies would be apparent ; but, under the present con dition of 
 things, if we look to the amendment of convicts, or even if we 
 pretend to keep them from becoming more depraved and dan- 
 gerous, much depends on the character and qualifications of 
 the person who holds immediate government over them. We 
 conceive that he should be a man of mild and uniform dis- 
 position, of benevolent feelings, possessing courage, firmness 
 and decision of character ; experience in the walks of life, a 
 knowledge of human nature, and a capacity to discern the lead- 
 ing passions of individuals, and all their weak points, seem 
 requisite qualities. Individuals of this description can always 
 he found, if adequate inducements are held forth to engage 
 them ; and when once obtained, they would cherish a deep and 
 lively interest in the success of their efforts in the path of duty. 
 Men who seek the office of agent or keeper, in our State Pri- 
 sons, as a station of profit, should not be heard in their applica* 
 tion. Party views and prejudices should not produce the selec- 
 tion of one and the removal of another; and when a sound 
 choice has once been made, a change should be viewed as a 
 calamity. If the human character ever can be reformed by the 
 use of reason, the inculcation of moral thoughts and moral prin- 
 ciples, and the application of wholesome mental discipline ; if 
 the reprobate can ever be called back to the ways of honesty 
 or reclaimed from his vices, the Penitentiaries of this country 
 open a wide and fertile field to the zeal and patience of the 
 philanthropist. Much can be done. Human nature, in its very 
 worst state, can be wrought upon with success. The history of 
 Mrs. Frey's exertions in New-GJate, affords a most gratifying 
 comment on these remarks. She has entered the prison walls 
 like a ministering angel of truth, peace and mercy, and guilt, 
 in the most awful and repulsive form, has relinquished a domin- 
 ion over its victims. 
 
 As to the selection of inspectors, superintendants, directors 
 or governors, it greatly involves the prosperity of the system, 
 and we can never look for its success unless care and judgment 
 are exercised on this point. We must rise above the sphere of 
 
78 
 
 party passions and favouritism, and look abroad in the commu- 
 nity, with a steady and dispassionate eye, for men who will watch 
 o*rer our Penitentiary policy as an important national experi- 
 ment, involving a great portion of national happiness, and as 
 one reacbing the most intricate relations of society ; for men, 
 too, who will preside over it with a capacity that can discern de- 
 fects, and apply the ready hand of correction. Confident we 
 ara, that the state governments or state executives can find men 
 oi' public spirit, and of competent qualifications, to discharge 
 ;his trust with fidelity. When once selected, permanency in 
 the tenure of their appointment is absolutely essential to the 
 faithful exercise of their functions. Time and observation are 
 necessary to obtain a sufficient knowledge to enable men to act 
 with due discretion and effect in the management of a State 
 Prison ; and when obtained, all the benefits to result from it 
 are destroyed by ejection from office. Many of the State Pri- 
 son cudfS and bye-lavrs, at this time, want amendment, and it 
 requir-s talent, patriotism, ardour and industry, to make the 
 reqiired corrections. With men of prudence and capacity ip 
 bisiness, we should unite others of a higher order, in point of 
 ability, if we would constitute boards of inspection suitable to 
 the ends which we have in view. We have said so much on 
 this head, in another place, that further remark seems unixe- 
 cessary. 
 
 When a convict is sentenced to hard labour, the spirit and let- 
 ter of the law should be well observed. He should be put to 
 work, and kept to work, in the the true sense and meaning of 
 the words hard labour. (8) It is not contended that tasks should 
 be cruel and tyrannical ; but any relaxation in the requisition of 
 the law, any favour shown to one individual, that is not evinced 
 to another, and in fact any thing like favour in any case is hos- 
 tile to the System of punishraent whose perfection is now 
 sought. If one convict is to be permitted to sweep the rooms 
 of the prison, another to clean the furniture and utensils, another 
 to keep the yard in proper order, a substitute for haxd labour. 
 
 (8) Vide Mr. Hopkiason's letter, App. 
 
 10 
 
74 
 
 undue and improper partiality is shown, and an authority and 
 discretion are exercised that the laws never intended. The cer- 
 tainty of punishment is destroyed, and pernicious contrasts are 
 exhibited. Idleness should be guarded against, with the utniost 
 scrutiny, unless solitude without labour, is the sentence of the 
 criminal. To permit convicts to pass through any portion of 
 their term in the State Prison in indolence, when it was intend- 
 ed by legislatures and courts of justice, as well as expected by 
 the prisoners themselves, that constant and rigid industry shoukl 
 be their daily lot, is tolerating an abuse of a very mischievous 
 kind. The performance of hard labour, is intended, by out' 
 penal statutes, as a part of the punishment of the convict. His 
 exemption from this, in any degree, impairs the effect of the 
 punishment. It is said, that in some of the State Prisons, the 
 labour of criminals brings no returns ; that there is no market 
 for the manufactures which come from their hands. No facts 
 of this nature are before the Committee ; and if there were any, 
 we should say, that it would be far better, even to realise nuhing 
 more than the mere price of the stock worked up, than to {.er- 
 mit idleness to reign within our State Prison walls, when haH 
 labour is enjoined. We believe that the products of labour, per- 
 formed in our Penitentiaries, can always be sold for something 
 9.nd it is far more politic to dispense with strict calculations as 
 to profit, than to permit relaxation in the punishment of public 
 offenders. Agents, keepers, and all officers, who have the con- 
 trol and management of convicts, should, in the view of the 
 Committee, be wholly prevented from showing any other fa- 
 vours or discrimination than the State Prison codes and bye- 
 laws permit. 
 
 A disregard for personal cleanliness leads to the relaxation of 
 moral principles, and renders the profligate more profligate, and 
 the base more base. No public prison can be a place of reform, 
 if a disregard to neatness is tolerated. The benevolent Howard, 
 often had occasion, while visiting the dungeons of Europe, to 
 raise his remonstrance on this subject. The Committee recom- 
 mend, that the utmost care be taken, to render our Penitenti- 
 
aries clean and wholesome, in every particular. The convicts 
 should be compelled to keep their persons entirely free fjrocn 
 every neglect, and every species of uucleanhness. A habit of 
 neatness would soon become pleasant and grateful to the feel- 
 ings of the criminal ; and if he had been once found among 
 (hose collections of the wicked, where a disregard to appear- 
 ance and decorum was apparent, he would reflect on the pollu- 
 tion of such associations, with disgust. 
 
 We again repeat the remark, that revenue must be a secon- 
 dat)' consideration with those who administer the Penitentiary 
 System, if its designs are ever to be accomplished. We put 
 convicts in the State Prisons to be punished and reclaimed, not 
 to earn money for the people. Punishment and its effects are 
 never to be lost sight of. If the first object is the great produc- 
 tiveness of the labour of convicts, let it be so understood. We 
 must then change our whole System to meet this end ; and in- 
 stead of confining prisoners within the walls of a State Prison 
 during the day, it might be more profitable to put chains and 
 weights on their feet, and let out their services in various ways. 
 If the prevention of crimes is the design, let this also be sub- 
 stantively and primarily considered in all cases, and every thing 
 be renounced that militates against it. The Committee, there- 
 forcy enjoin what common sense, and the most ordinary pru- 
 dence dictates ; let the first great question be, how can the 
 Penitentiary System be rendered the most effective in dimin- 
 ishing crimes, and in reforming convicts The moment this 
 inquiry is forgotten, sound policy is contravened, and we give 
 up the System to ruin and disappointment. It cannot be oth- 
 erwise. Better that all the criminals in the United States should 
 never earn a farthing, than to bear the present results of our de- 
 fective and pernicious treatment. If it becomes necessary to 
 keep each transgressor in perpetual solitude, it must be done. 
 We must go through with the object of our Criminal Codes, or 
 renounce them altogether, and begin again with the enactment 
 of penal laws. Half-way laws, partial punishment, and legisla- 
 
7fi 
 
 y*TB Tpcaknfess and vacillation, will result in nothing but disaster, 
 discouragement, and vice. 
 
 Here the Committee terminate the second division of their 
 Report— the suggestion of remedies to meet existing evils in the 
 Penitentiary System, and pass to the third general lic»d : the 
 substitute to which the diflerent states in the Union must resort, 
 provided this System is to be abandoned. 
 
 Let it be admitted, that the Penitentiary System in this coun- 
 try is beyond the reach of those radical improvements that 
 would render it adequate to its original ends. Let us admit that 
 the nation should rise up at once, and resolve on its immediate 
 destruction. Let us repeal our present Criminal Codes, in the 
 different states, and discard their mild features. To what must 
 we resort? We shall have crimes, and we must have punishments. 
 Transportation, corporal punishment, and death, have been sug- 
 gested as a substitute for our present punishments. They have 
 found a vindication in some of the public prints of the day, more 
 especially that of transportation, and men of influence in the 
 community, and those well versed in the laws of their countiy, 
 often mention the latter as the inevitable resort of no distant 
 day. 
 
 Let us examine the expediency of resorting to transportation, 
 corporal punishment, and death, to prevent crimes. And as to 
 the former, its impracticability is the first objection that refutes 
 every ingenious argument in its favour. To what place will the 
 United States send their felons? Where are our colonial — 
 where our foreign establishments? Wherever our government 
 extends and wherever it has force and authority, there the 
 rights and immunities of American citizens may be enjoyed. 
 We know of no inferior appendages, within the circle wbieh it 
 embraces. How then are we to dispose of convicts, if transpor- 
 tation is deemed expedient? We must either obtain some dis*- 
 tant settlement, perhaps in the bosom of the Pacific ocean, or 
 we must take some spot within our national dominions. As to 
 •procuring a foreign settlement, but two methods offer, by which 
 the object could be effected ; we must resort to purchase or to 
 
77 
 
 conquest. The constitution knows of no such policy as the ap- 
 propriation of money, by the Congress of the United States, to 
 purchase a territory, that is not to be governed by that consti- 
 tution — that is not to be a part of the American confederacy. 
 The purchase of a foreign station is out of the question. Shall 
 we then proceed by conquest Shall we send our navy to tak« 
 possession of an Island in the western seas Foreign conquests, 
 for any purpose, are hostile to the principles of our national policy. 
 If one can be authorised, so can another, and we may go on till 
 we have a chain of remote settlements. By what laws would they 
 be governed .'' Not by the American constitution ; not by the 
 laws that extend their empire from the Floridas to the borders of 
 the Canadas. A local government must be organized, and prin- 
 ciples, foreign to our constitution, admitted. The expense of 
 acquiring such a territory, and the expense of retaining it ; in- 
 dependent of the disbursements for transporting criminals, are 
 entitled to some consideration, if all other objections could be 
 removed. But when we take into view the great expenditures 
 that would continually be demanded, to send out convicts, and 
 to keep tbem within the limits of their exile, we see new im- 
 pediments. We must have military establishments, a guard, a 
 foreign garrison, to watch over the rising destinies of our hope- 
 ful settlement. A few voyages round Cape Horn to carry forth 
 the tenants of our prisons on their conviction, and a few an- 
 nual appropriations to support a few troops to keep them in 
 subordination, and to prevent their speedy return, would show 
 an expenditure more than sufficient to erect separate cells, and 
 support in solitude, every convict in the United States. The 
 expenses for transporting convicts to Botany Bay, during the 
 last twenty years, has cost Great Britain an enormous sum. 
 And by whom would our criminals be transported ? By the 
 nation, or by the different states ? If by the nation, then the 
 nation is to execute state laws, over which the national govern- 
 ment has no control — laws different in their provisions, in their 
 enactments, in their severity, in their tendency to increase or 
 prevent crimes. As to the states' carrying away their own con- 
 
78 
 
 victs, it would involve too many objections to permit its inves- 
 tigation. They would avoid the indicting, arraigning and con- 
 victing of felons from the apprehension of heavy pecuniary 
 burthens. Transient felons, fleeing from one state to another, 
 would escape. Massachusetts or New- York would not be anx- 
 ious to punish the fugitives from Maryland or Georgia. We 
 have mentioned a settlement some where in the Pacific ocean, 
 because we can perceive no where else to which our views can 
 be directed, with any thing like propriety. 
 
 It has been asserted by many, that a settlement at the mouth 
 of the Columbia river, on the Pacific coast, might be establish- 
 ed and sustained, for our culprits. We take it for granted that 
 no one would seriously think of transporting convicts to this re 
 mote region by land across the western mountains, the extend- 
 ed spine of the Andes, several thousand miles. The disposal of 
 one offender, in this manner, would cost more than the support 
 of ten convicts in the State Prison, provided their periods of 
 punishment were the same. If the journey by land is renoun- 
 ced, then the doubling of Cape Horn, and all the unavoidable 
 expenditures of transportation, and of maintaining a small mil- 
 itary force before pointed out, occur to the mind. But another 
 consideration arises on this subject. Suppose we sentence our 
 criminals to a residence at the mouth of Columbia river, what 
 would be the moral consequences Is the banishment to be 
 perpetual or temporary If perpetual, then we confound all the 
 graduations of a penal code to the magnitude and depravity of the 
 offence. We must either adopt this kind of punishment in a 
 very limited degree, or make great and small crimes of equal 
 criuiiuality. If the term of residence beyond the mountains, 
 should be limited to five, ten or fifteen years, we have no idea 
 that hardy and resolute offenders would change in character and 
 morals, by the execution of the law upon them. We might ex- 
 pect to see them return to the society which they left, with new 
 enterprise and new hardihood. What is the object of punish- 
 ment at all.'' The prevention of crimes by the example, and 
 reformation of the convict — by the spectacle which is presented 
 
79 
 
 to others. Would transportation to the mouth of Columbia ri- 
 ver, have this effect ? What hardened outlaw, would dread the 
 novel and variagated scenes of a new country, where the eye is 
 regaled with perpetual objects of wonder and delight ? What 
 felon, from the prisons of England, Ireland, France, Germany, 
 Italy, or Spain, would find the bitterness of repentance in such 
 a punishment ? VVho of our daring and active countrymen, 
 would find their spirits broken down, and their moral depravity 
 eradicated by such a destiny? They would consider it as an 
 alluring excursion, and scarcely count the number of suns that 
 should rise and set before their return. How far a collection 
 of felons at this place, might hereafter annoy our frontier settle- 
 ments, as they stretch along the receding shades of the wilder- 
 demess, beyond the Mississippi; how far "they might break 
 away from tl^e location assigned them by law, and mingle with 
 hostile tribes of savages, and hereafter diffuse depredations 
 along the chain of our frontier settlements, it is not necessary 
 to inquire. The whole plan of transporting criminals from the 
 different states, appears to the Committee, to be visionary and 
 romantic. It has been noticed with some attention because it 
 is always wise to suppress wild and fanciful theories, in their 
 primeval state, before ardent and misguided votaries, adopt and 
 defend them, in the place of systems that merit vindication. 
 The United States can never resort to the transportation of 
 convicts, to any distant spot, beyond the jurisdiction of muni- 
 cipal authorities, while the present form of government remains, 
 and the people cherish their existing moral and civil institu- 
 tions. 
 
 England transports convicts to Botany Bay. Her limited em- 
 pire, her crowded population, her multitude of capital offences, 
 her diversity of crime from her complex relations of society, 
 may render this choice of evils necessary. Yet, if we may be- 
 lieve the declaration of English statesmen on the floor of Par- 
 liament, the terror of this punishment is little felt. Lord Sid- 
 mouth avered in the House of Peers some few years ago, that 
 *' it was notorious that the dread of transportation, had almost 
 
80 
 
 subsided, and perhaps had been succeeded by a desire to emi- 
 grate to New South Wales." (9) In a late debate in the Bri- 
 tish Parliament, Mr. Buxton declared, " that he should be guil- 
 ty of insincerity, if he were to contend that transportation were 
 any punishment at all." (10) The expenditures of this kind of 
 punishment have also been enormous. During twenty years 
 past, it has not cost the British government much short of 
 4^20,000,000 to send her criminals to port Jackson. (11) Thi^ 
 evidence should, at least, warn the American people to be cau-> 
 tious in advocating a remedy for crimes that has been found 
 ineffectual in a neighboring empire, after full trial. (12) 
 
 We are sorry to find any advocates in this country, for those 
 corporal punishments that seem alone congenial to the temper 
 of despotic or barbarous ages. We cannot withhold our ex-» , 
 pression of regret, that one of the moat rising and flourishing ,1 
 members of the confederacy, where free and enlightened prinT. 
 ciples are cherished with tenacity, should have recently disj, ; | 
 played, through some of her most distinguished legislators, & ;ij 
 disposition to adopt penal laws, long since denounced In the n{ 
 United States, as disgraceful and inhuman, and as ineffectual' ti 
 to prevent crimes. (13) Previous to that revolution whici} v 
 gave birth to our present system of government, corporal paa^ 
 ishments were common. They even prevailed to a great ex- 
 tent, after the colonial laws ceased to exist. Cropping the ears, 
 branding the forehead, burning the hand, the public infliction 
 of stripes, and scourging, and exposure in the pillory were fre- 
 quent. They were rejected for milder modes of punishment, 
 as criminal jurisprudence attracted the attention of our legisla- 
 
 (9) Speech io Hoase of Peers, June 3d, 1813. 
 
 (10) Mr. Bennet's speech in House of Commons, 1818. 
 
 (11) Debate in British Parliament, May, 1821. 
 
 (12) Mr. Roscoe, ia speaking of transportation, quotes the following wordb 
 from Cicero : Exiliumi non supplieium est, sed perfugium protusque supplicii. 
 Cic. pro Coecin. 
 
 (13) Vide late debate ia tke kgislature of Ohio, on the Penitentiary of that 
 .state. 
 
81 
 
 tures. Confinement to hard labour in our Penitentiaries was 
 substituted ; and now, before the virtues and eflScacy of this 
 substitute have been ascertained, by a full and fair test, there is 
 a doctrine in the land, that it is politic to return to the penal 
 statutes, that were recently repealed, as savage and obnoxious. 
 And why take this retrogade step ? Can it be proved, to the 
 satisfaction of the American public, that while corporal pun- 
 ishments were in existence, crimes were less frequent than they 
 are now ? Even could this question be answered in the affirma- 
 tive, it would not be satisfactory, since one species of crimen 
 falsi is peculiar to the present period of our history, from the 
 extensive creation of banking institutions, since the Penal laws 
 spoken of were abolished. The counterfeiting of bank notes 
 was not known, because no banks existed. But were larce- 
 nies less frequent? Were burglaries, arson, and murder, less 
 frequent? We contend that they were not. But what is 
 the just and proper inquiry to be put here ? It is simply this : 
 Would corporal punishments go farther to prevent crimes,'than 
 solitary confinement to hard labour in our Penitentiaries ? For 
 this is the punishment which we hope yet to see universally 
 adopted. On this point the Committee have no doubt ; and 
 they believe, that should this desired improvement take place, 
 and be amply tried, not only corporal punishment, but all other 
 substitutionsTor the Penitentiary System, would be relinquished, 
 through universal conviction. Several objections occur to crop- 
 ping the ears, slitting the nose, branding the forehead, public 
 •whipping, and similar modes of treating felons. First, no 
 facts prove that such punishments are more effectual in prevent- 
 ing offences, than our present Penitentiary System, defective 
 as it is. In the second place, they render men desperate, in- 
 sensible to shame, and dead to any appeals, either legal or mo- 
 ral. What has any person to look or hope for, in this world, 
 when his features are so deformed as to attract the scorn of the 
 public; or what has the culprit to anticipate, who has received 
 the stripes of a constable, amid a crowd of spectators, who 
 will retail and communicate his disgrace to the second and third 
 
 11 
 
82 
 
 generation ? Thirdly, tliey not only render offenders despe- 
 rate, but they release them immediately, and enable them to 
 exhibit this desperation in the perpetration of new crimes. 
 There is at least one advantage in our Penitentiaries ; 
 while villains are shut up, society are relieved from their depre- 
 dations and outrages. Not so, if the space of fifteen minutes 
 finishes their punishment. (14) Fourthly, the frequent inflic- 
 tion of cruel punishments inures the public mind to barbarities, 
 and destroys the advantages intended to be reaped from the 
 terror of example. People can become habituated to specta- 
 cles of horror, and feel no pangs at beholding them. We can 
 scarcely conceive of a more shocking sight than the flocking of 
 boys to a whipping post, to enjoy, in revelry and mirth, the 
 tortures of fellow beings. All solemnity, all the benefits of ex- 
 ample, are lost, when offenders are constantly doomed to suffer 
 in ignominy, as a mark for the gazing rabble to shout at. Nor 
 is it conceived that the American people would tolerate the 
 idea of disfiguring the persons of our citizens, with hacking, 
 branding and scourging. But we are told that all arguments 
 drawn from the cruelty of this kind of punishment should be 
 abandoned, since solitary confinement is still more cruel. This 
 is a specious doctrine — not a sound one Between physical 
 and moral suffering, there is a wide difference. The first de- 
 notes the propensities and passions of a savage state of man. 
 In Morocco, small offences or misdemeanors, are punished by 
 the bastinado, or beating the backs and legs with leather thongs, 
 something like the cat-o'-ninetails formerly used at the whip- 
 ping posts in this country ; and larceny, by cutting off a leg or 
 hand, or other bodily disfiguration. There is also a method of 
 tossing up criminals, so that they may fall on the head and frac- 
 ture its bones. Montesquieu remarks, when speaking of the 
 Japanese, that cruel and horrid punishments harden the public 
 mind, and tend to render penal laws ineffectual. Of all laws, 
 we may say that those of Japan are the most severe, and yet 
 
 (14) Vide Mr. B«wle's letter, App. 
 
83 
 
 t he most impotent. The administration of laws, distinguished 
 fo: tbeir severity, has no tendency to render persons more 
 honest or more serviceable to the public, who have incurred 
 its vengeance. It ratlier tends to create hardihood, the 
 abierice of shame, and the loss of self-regard. Solitary con- 
 finement may be called a cruel punishment, although it is not 
 entitled to that appellation, however severe its operation may 
 be. But admit its cruelty — to what does it lead i* To reflec- 
 tion, to repentance, to the amendment of the criminal. His 
 features and his limbs remain as God has made them. If he 
 forsakes the ways and devices of the wicked, no external de- 
 formity remains, a perpetual mark of public ignominy, when 
 crime is expiated and guilt done away. We trust and hope, 
 that the day is far distant, when the free states of the union 
 will retrace their steps to a system of laws, that would be at 
 war with civilization, humanity, the principles of our institu- 
 tions, and hostile to the lessons inculcated by the experience of 
 other times. (IS) 
 
 Singular as it may appear to the enlightened and reflecting 
 of other nations, there is a disposition sometimes indicated in 
 this country, to adopt capital punishments to a wide extent. 
 Because the Penitentiary System has been grossly perverted, 
 and its principles lost sight of, by those who have been entrust- 
 ed with its administration ; because an experiment has failed 
 before it has been adequately tried ; in order to preserve our 
 property and protect our persons, there are occasional bursts of 
 popular feeling and discontent, that denote symptoms of cruelty 
 and error, inconsistent with the political institutions of the na- 
 tion, and the reason oji which they rest. Without any inquiry 
 why the Penitentiary System has disappointed the hopes of 
 the states ; without any reflection on the practicability or im- 
 practicability of improving and perfecting it ; capital punish- 
 ments are urged as the only means of preventing crimes. Sup- 
 pose we adopt this rennedy and execute criminals for all the 
 
 (16) Id relation to corporal puBishmeDts, the Committee widely differ from 
 Mr. Raymond. Vide his letter, App. 
 
84 
 
 felonies, that are now punished by hard labour in the different 
 State Prisons ; what would be the effect? The Committee 
 consider that two consequences would arise : first, the laws 
 would not be executed ; secondly, if they were rigidly enfor- 
 ced, executions would lose their terror by becoming common. 
 It was a deep rooted abhorrence to cruel punishment, that first 
 diminished the number of capital felonies in the United States ; 
 and it is to be hoped, that the influence of early education and 
 the difiusion and inculcation of Christianity for the last few 
 years, have not had an influence to render us less humane or 
 less careful in establishing sanguinary laws. Let us amend our 
 Criminal Codes in the different states to-morrow, and render 
 counterfeiting, passing counterfeit bank notes, burglary, breach- 
 es of the public trust, grand larceny, conspiracies, and swind- 
 ling, or obtaining goods, chattels and money, under false pre- 
 tences, capital felonies ; — what would be the effect ? More 
 than two-thirds of these crimes would probably go unpunished, 
 and therefore be committed with fresh impunity ; for how many 
 would not shrink from being informers, if convinced that by 
 their testimony alone, the life of a human being, perhaps the 
 parent of a large number of children, was to be taken ? What 
 would be the reasoning of a large portion of American citizens 
 in such a case ? Would they not say to themselves, it is aggra- 
 vating to have our rights infringed upon, but better to endure 
 this than be the instruments of sending a fellow mortal out of 
 the world ? Such feelings might be derided, as the offspring 
 of weakness and folly ; but they do exist, and will exist, until 
 our sentiments, as a nation, undergo a very radical change. 
 Grand Juries would be backward in presenting indictments, 
 when death was to be the probable consequence. They would 
 find it more consonant to their feelings to dismiss complaints 
 than to find a bill upon them. There would also be a difliculty 
 in procuring juries to convict criminals under cruel laws. 
 Twelve men would have many agonizing sensations in con- 
 demning a culprit to death, for stealing property to the amount 
 of fifty or ojie hundred doilars,^or for passing a counterfeit bank 
 
85 
 
 note of five or ten dollars. Every opportunity would be em- 
 braced to find the oflender not guilty. Any doubt in the testi- 
 mony, afibrding an excuse, would produce an acquittal. I avvs 
 to be effectual must be certain ; and therefore it will be no an- 
 swer to say, that if these minor depredations did escape, more 
 enormous ones would not. If men would seldom inform, and 
 juries shrink from convicting, on the smallest doubt, and the 
 most sleader excuse or subterfuge, what would be the conse- 
 quence .'' Crimes would rapidly increase, because a vast pro- 
 portion of them would go unpunished. Again: if the execu- 
 tion of criminals became an ordinary spectacle, the dread and 
 terror of this species of punishment would be banished, and 
 its restraints be destroyed. Mankind can be rendered familiar 
 with horrid spectacles, by habit. The savage of our western 
 wilderness beholds the agonies of the prisoner at the stake, 
 with composure. The wife of the Hindoo ascends the funeral 
 pile of her husband with a firm step. The monsters of the 
 Inquisition feel no pangs at the tortures of their victims ; and 
 an execution in Japan, creates no more sensation than the 
 morning clouds that obscure the sun. The Romans beheld the 
 blood of their gladiators, without the movement of a nerve or 
 a muscle ; and in Great- Britain, at this day, the execution of 
 half a score of felons, calls forth no expression of horror from 
 the populace. In time, we should betray the same indifference. 
 The frequent repetition of similar scenes would habituate our 
 eyes to the suspension of men, women and children, from the 
 gallows. There is a habit of thought, as well as a habit of ac- 
 tion ; and when, by continual occurrence in the mind, any kind 
 of punishment becomes naturalized to our tone of feeling — ab- 
 horrence is overcome. 
 
 But what do we do, in advocating capital punishments, in 
 some ten or fifteen kinds of felony in the United States ? We 
 do violence to the moral feelings of the people of this coun- 
 try, which involuntarily repel all sanguinary laws. We go fur- 
 ther. We disregard the solemn lessons of an experience that 
 is drawn from the history of successive ages ; for, we would 
 
86 
 
 ask, in what period of national history have capital punishments 
 suppressed the crimes which they were designed to prevent ? 
 Are we not compelled to believe that they have rather promo- 
 ted, than diminished, the evils they vveie intended to destroy? 
 Take the Roman empire under the Caesars, during the mild 
 reigns of her most humane and virtuous emperors, who relax- 
 ed the rigor of the Penal laws; crimes were less frequent than 
 under those of her most furious despots, who promulgated 
 bloody edicts in every direction. Alfred came to the English 
 throne amid confusion, war, and licentiousness. He abolished 
 all capital punishments excepting in three kinds of felony, trea- 
 son, murder, and arson. Instead of increasing, public offences 
 rapidly diminished, and the security of persons and property, 
 during the peaceful and beneficent reign of this virtuous prince, 
 has been a distinguished era in the annals of the British em- 
 pire. The reigns of Henry 7th, Henry 8th, and of Queen 
 Elizabeth, of England, are rrmarkable for the number of felo- 
 nies which were rendered capital, and yet they are noted for 
 the number of criminal offences perpetrated during their ex- 
 istence. Lord Bacon considered the penal laws the most 
 odious feature of the government of Henry 7th, During the 
 reign of Henry 8th, there were 72,000 executions for robbe- 
 ries; and while Elizabeth was on the throne, they were pecu- 
 liarly numerous. The contrast that modern history has exhib- 
 ited, between the operation of Penal laws in Tuscany and the 
 Papal dominions, is striking and pertinent. When the late 
 Grand Duke of Tuscany ascended the throne, his dominions 
 were overrun by robbers and assassins. Robberies and murders 
 were common, and the wheel, the rack and the gallows were 
 seen in all quarters. On reading the celebrated work of the 
 Marquis Beccaria, he entirely abolished capital punishments. 
 An army of executioners, with their instruments of death, were 
 dismissed, and milder laws rendered Tuscany one of the best 
 ordered states in Europe, and no where were life and property 
 more safe. Punishments were proportioned to the offence, and 
 executed with ^strictness and certainty. In the Papal domin- 
 
87 
 
 ions, separated from Tuscany by a small dyke, the severity of 
 punishment was kept up, and crimes continued. Robbery and 
 homicide still continued to be committed. He who robbed was 
 executed. He who robbed and murdered, suffered no more. 
 The consequence was, that he who was robbed was also mur- 
 dered. Sir William Blackstone, after speaking against the too 
 frequent infliction of capital punishment, asks if they have been 
 found more salutary than those of a milder character. " Was 
 the vast territory of Russia," says he, " worse regulated under 
 the late Empress Elizabeth, than under her more sanguinary 
 predecessors .'' Is it now, under Catharine II. less civilized, 
 less social, less secure .'' And yet we are assured, that neither 
 of these illustrious Princesses have, throughout their whole ad- 
 ministration, inflicted the penalty of death. And the latter has, 
 upon full persuasion of its being useless, nay even pernicious, 
 given orders for abolishing it entirely, throughout her extensive 
 dominions." (16) 
 
 Were atrocious crimes more frequent in France under the 
 reign of Napoleon, than under the government of any one of 
 the Bourbons, for a half a century before him ? We know they 
 were not. And yet he greatly moderated the Penal Code, and 
 assumed the sceptre of power, after the revolution had poured 
 its overwhelming torrents of licentiousness, over the kingdom. 
 
 But why thus range the globe for illustrations ? There is a 
 nation in the fulness of life and glory, to whom we can refer. 
 England is before our eyes. The present state of her Penal 
 laws is worth the volumes of centuries. We know of no na- 
 tion in existence, which has so many capital felonies as Great- 
 Britain, and we know of none where capital punishments are so 
 numerous, and Penal laws more ineffectual to compass their ends. 
 If the infliction of death is so well calculated to deter men from 
 committing offences, why do they wholly fail to effect this result 
 in England Criminals are constantly executed for forgery, 
 and still forgery goes on. Felons are continually executed for 
 
 (16) CommeDtariea. vol. 4, p. 10. 
 
88 
 
 stealing, and still thefts increase. They are committed under 
 the very gibbets where thieves are hung. What is this but ex- 
 perience putting down theory. A man is executed for picking 
 a pocket, and during the execution, three-score pockets are 
 rifled, and the suffering of one criminal leads to the liability of 
 twenty or an hundred more. The British Parliament have enact- 
 ed that the passing of a one pound bank note shall be punished 
 with death. What has been the effect of this statute in sup- 
 pressing that crime In 1814, there were 10,343 convictions 
 under this act; in 1815, 14,000; in 1816, 21,000 and upwards; 
 and in 1817, 23,000 and upwards. Is this preventing felony by 
 the taking away of life? (17) Mr. Buxton, in his late speech 
 in the House of Commons, states expressly, that in the face of 
 more than 200 capital punishments, crimes that fall under them, 
 continue to multiply. The Criminal Code in France is less se- 
 vere than that of England, and yet, with more than double the 
 population of Great-Britain, the number of her criminals is less. 
 But there is another great evil in the accumulation of capital 
 offences in England — one that we have mentioned in our argu- 
 ments — the laws are not executed. The injured will not com- 
 plain, witnesses will not appear. Grand juries will not find in- 
 dictments, Petit juries will not convict, and if they do convict, 
 the sentence is often rendered inoperative. The same evil hajs 
 existed for generations. So dreadful a list," said Sir William 
 Blackstone, when speaking of the penal statutes inflicting death 
 in England, " instead of diminishing, increases the number of 
 offenders. The injured, through compassion, will forbear to 
 prosecute ; juries, through compassion, will sometimes forget 
 their oaths, and either acquit the guilty or mitigate the offence ; 
 and judges, through compassion, will respite one half of the 
 convicts, and recommend them to the royal mercy." (18) The 
 investigations of the House of Commons, the witnesses exa- ' 
 mined at the bar of that body, the speeches of eminent men in 
 
 Vide Report of Select Committee on the Criminal Laws, to House of Com- 
 mons, 1819, p 79. 
 (18) Black. Com- 
 
89 
 
 both bouses of Parliament, go far in settling this grand fact. 
 Sir Samuel Romilly, in a speech before the British Legislature 
 on the 26th March, iSlS, stated, that " he would take the pre- 
 sent opportunity of mentioning the state of the law, as derived 
 from the returns on the table, with respect to the act making it 
 capital to steal within a dwelling house to the amount of forty 
 shillings. Within eight years, down to 1816, no less than 1097 
 persons had been tried for this offence. Of these, 293 only had 
 been capitally convicted, and not one had been executra. In 
 1816, 131 more persons had been tried, of whom 49 had been 
 capitally convicted, and one (whose case was accompanied with 
 great aggravations) executed. So that of 1228 individuals 
 tried, 342 only had been capitally convicted, (the juries either 
 acquitting the 886, or finding them guilty of stealing to a less 
 amount,) and only one person executed." In 1732, there was 
 a statute passed in England, rendering frauds, in cases of bank- 
 ruptcy, capital crimes. Since that period, it is ascertained that 
 there have been 40,000 bankruptcies ; and yet Basil Montagu, 
 Esq. stated, in a late examination before a committee of the 
 j House of Commons, that there had been but nine or ten prose- 
 cutions during 87 years, and but three executions, although the 
 frauds within the statute were common and proverbial. (19) 
 
 (19) Rep House Com. 1819, p. 79. 
 
 Mr. Biuloo, in a late speech on the Criminal Code of England, adduces the 
 following extract from a speech of Queen Elizabeth to her Parliament ; — '' A 
 law without execution, is but a body without life, a cause without an effect, a 
 
 I countenance of a thing, and indeed nothing. Pen, ink and paper, are as much 
 towards the governance of the commonwealth, as the rudder or helm of a ship 
 
 I jwrveth to the .governance of it. without a governor, and as rods for correction 
 
 I without hands. Were it not mere madness for a man to provide fair torches to 
 guide his going by night, and when he should use them in the dark, to carry them 
 unlit.' Or for one to provide fair and handsome tools, to prune or reform his 
 orchard or garden, and to lay them up without use ? And what thing else is it 
 to make wholesome and provident laws in fair hook«, and to |sy them up safe, 
 without seeing them executed ? Surely, in reason, there is no difference between 
 the examples, saving that (he making of laws wilhou* espcntion is in much, 
 worse case, than those vain provisions before remembered ; for there, albeit, 
 
 1 they do no good, yet they do no hurt ; but the making of laws without esecu- 
 
 12 
 
90 
 
 Hence we see that when sanguinary laws are executed, they 
 fail to prevent crimes, and that when they are peculiarly severe, 
 they remain a dead letter; and thus directly promote, instead 
 of suppressing crimes — entailing on the community a compli- 
 cation of immoralities. The dangerous tendency of frequent 
 capital punishments, and their total failure to control and re- 
 strain the vicious propensities of mankind, have long been per- 
 ceived and enforced, by men who have shone among the first 
 luminaries that ever diffused light and truth through the world. 
 More than three hundred years ago, that learned and excellent 
 man, Sir Thomas More, assailed the enormity of the Penal 
 Code of Great-Britain. His writings on criminal law, have not 
 yet lost their impression on the feelings of civilized man. 
 About two hundred years ago, Sir Edward Coke, that venera- 
 ble giant of jurisprudence, on whom we yet cast back our eyes 
 with reverence and admiration, entered his solemn caveat 
 against the taking of human life by laws like those of his own 
 country. " What a lamentable case it is," said he, " that so 
 many Christian men and women should be strangled on that 
 cursed tree of the gallows: insomuch as if in a large field a 
 man might see together all the Christians that but in one year, 
 throughout England, come to that untimely and ignominious 
 death, if there were any spark of grace or charity in him, it 
 would make his heart to bleed with pity and compassion." ^20) 
 He then proceeds to advise reform. Sir Francis Bacon, the 
 Lord Chancellor of England, whose writings awoke the long 
 slumbers of human reason remarked to Queen Elizabeth : "so 
 it is most certain that your people are so ensnared in a multi- 
 tude of Penal laws, that the execution of them cannot be 
 borne " Sir Walter Raleigh advocated the same principles, 
 
 tion does very much harm ; for that breeds aod brings forth contempt of lawj 
 and lawmakprs, and of all magistrates : which is the very foundation of all go-l 
 ve nance, and therefore must needs be great and heinous in those that are the. 
 causers of this. Indeed, they are the very occasions of all injuries and injusticv, 
 apd of all disorders and unquietncss in the commonwealth." 
 (to) Vide Epilogue to bis fourth Institute. 
 
91 
 
 as early as 1611 ; Cbillingworih in 1640, and Doctor Johnsoo 
 in 1731. In 1750, the increase of certain crimes that were 
 capital felonies, roused the attention of the British Parliament. 
 A committee was appointed in the House of Commons, con- 
 sisting of the Earl of Chatham, Mr. Pelham, then Prime Minis- 
 ter; Mr. Grenville, Mr. Littleton and Charles Townsend, suc- 
 cessively Secretaries of State ; Sir C. Loyd, then a distinguished 
 member of the English Bar ; and Sir Dudley Ryder, then At- 
 torney General, and afterwards the Chief Justice of England. 
 These great ornaments of the British empire recommended 
 the exchange of death for other adequate punishments, and in- 
 troduced a bill that was passed in the House of Commons and 
 defeated in the House of Peers. Twenty years afterwards, io 
 1770, another committee, consisting of Charles James Fox, 
 Sir William Meredith, Sergeant Glynn, and Sir C. Banbury, 
 was appointed, who also reported a great reduction of capital 
 punishments, and introduced a bill that passed the House of 
 Commons and was rejected in the House of Lords. " Neither 
 was that bill opposed," said Mr. M'Intosb, in one of his elo- 
 quent speeches in Parliament, " by any of the great ornaments 
 of the House of Lords of that day, Lord Cambden or Lord 
 Mansfield ; it was thrown out on the opposition of others, whom 
 I will not name, and whose names will be little known to poste- 
 rity." Since that day, such men as Mr. Pitt, Lord Erskine, the 
 Marquis of Lansdown, Mr. Canning, Lord Grey. Sir Samuel 
 Romilly, Mr. Roscoe, Lord Lauderdale, Sir James M'Into«h, 
 Mr. VVhitbread, Mr. Wilberforce, Mr. Buxton, Mr. Colquhuun, 
 and others, whose rank and talents are well known to the Ame- 
 rican public, have made strenuous eflForts to procure the dimi- 
 nution of capital punishments in England. But why, we shall 
 be asked, has England still retained her Penal Code, against 
 the genius and influence of such a host .'' And we will ask, 
 why has she tolerated pauperism by the most careless policy, 
 since the days of William and Mary, when she was first loudly 
 warned against this evil .'' Why did she tolerate the slave trade 
 for years after Fox, Pitt, and Wilberforce, united their exer- 
 
92 
 
 tions for its abolition ? Why does she oppress the Catholics of 
 Ireland, and spread the gloom of bondage over the land of 
 fame and genius ? Why tolerate the errors of her representa- 
 tive system ? Why do nations ever oppose the voice of reason ? 
 Why, in fact, have the empires and kingdoms of the earth slept 
 in chains for ages ? Why have rational systems of government 
 and rational laws, been shut out for centuries, from the pale of 
 civilized communities ? Or, to come nearer home, why is there 
 a disposition in this country to pass over reason and Christiani- 
 ty, to the adoption of punishments that would disgrace the pa- 
 ges of American history ? But the day of reform is fast ap>i 
 proaching in England, and the awful effects of capital punish^ 
 inent are spreading a cloud over the face of society. Crimes 
 and outrages increase, and the destruction of human life but 
 augments their atrocity The last Report in the House of 
 Commons, an l the debates in the same body, carry the strong- 
 est conviction that the Criminal Code of England cannot last. 
 Mr. Colquhoun, who was the greatest police magistrate that 
 England ever has seen, and who has written more largely on 
 the subject of police than any other man, uttered these unqual* 
 ified words, to the committee that represented the British na- 
 tion, four years ago : " It has occurred to me, that except in 
 cases of high treason, murder, sodomy, arson, and other offen- 
 ces, accompanied with violence to the person, the punishment 
 of death may be dispensed with, under circumstances advanta- 
 geous to criminal justice." (21) If any thing further is wanting 
 to illustrate the fact, that the criminal laws of England are at 
 variance with the moral feelings of the British community, we 
 could successfully allude to the late publication of Mr. Ro» 
 coe. (22) In this invaluable treatise, talents, philosophy and 
 research, are blended, in a triumphant vindication of the princi- 
 ples of humanity. No man can answer it. The illustrious 
 author condemns the extensive adoption of capital punishments, 
 and recommends the Penitentiary System to the English na- 
 
 (21) Examination before Select Com. House Com. Report 1819. p. 66. 
 ' (22) Observations on Penal Jurisprudence and the reform of criminals. 
 
98^' 
 
 1 loij. He thusdirects their attention to the United States : " For- 
 tunately, however, whilst the civilized world has been groaning 
 under the effects of a barbarous and sanguinary Code of lawg, 
 mitigated at times by the milder spirit of philosophy, another 
 system has arisen, which from obscure beginnings, has gradually 
 attracted more general notice, till at length it has been adopt- 
 ed in practice on an extensive scale and affords a favourable 
 prospect of ultimate success." (23) 
 
 And with these lights shining in our eyes — with this deep 
 voice of experience sounding in our ears, shall we cast off our 
 moral feelings, and all the principles of our early education ? 
 Shall we renounce the spirit of our constitutions, as well as the 
 counsels of sound policy and humanity, and fill our statute books 
 with bloody laws ? Are we ready to behold the instruments of 
 death and torture in our peaceful villages, where education and 
 moral maxims have gained dominion ? Are we prepared to 
 see the gibbet erected along the borders of our highways, and 
 by the side of the pleasant fields of the husbandman ? Are we 
 willing to have the populace of our towns and cities constantly 
 pouring forth, as to a theatre of sport and revelry, to behold 
 the last sufferings of capital offenders f On this point, we shall 
 say no more. Against the extension of capital punishments, 
 the Committee feel it their duty to remonstrate, in every pro- 
 per shape and manner — at all times and all appropriate occa- 
 sions. And they regret that the sentiment, once expressed by 
 Sir Henry Spelman, is forcibly brought to mind at this enlight- 
 ened period of the world. He once remarked, when speaking 
 of penal laws, that in proportion as governments were rendered 
 better, and civilization had advanced, human life seemed to be 
 rendered of less worth and consequence in the eyes of legis- 
 lators and lawgivers. (24) 
 
 The anxiety which prevails in the United States, on the sub- 
 
 (23) lb. page 83. 
 
 (ti) See the bead Capital Powishments, in the Appendix. Let it be read 
 by every American citizen, who thinks and acts for himself. The testimony 
 before the House of Commons, and Mr. Roscoe's arguments, cannot be refuted. 
 
94 
 
 ject of the Penitentiary System, is deeply cherished by the civ- 
 ilized nations of the other continent. The third Report of the 
 Society for the improvement of prison discipline, and for the 
 reformation of Juvenile offenders, embracing more than two hun- 
 dred pages, combines a mass of the most interesting matter. 
 This association is sustained by the first men in England, wheth- 
 er we consider rank, talents, or wealth ; and its funds are ample 
 for the grandest purposes. It is carrying reformation through 
 the dominions of the British crown, and collecting information 
 from all quarters of Europe, and diffusing it back again, through 
 countless channels. 
 
 Many of the evils displayed in our Penitentiaries, have been 
 found in the prisons of England. The want of classification, 
 the want of constant labour, the evils of continual intercourse, 
 the increase of depravity, and the pernicious tendency of grant- 
 ing pardons and respites, are among the prominent defects 
 pointed out. 
 
 Solitary confinement is daily gaining advocates. The Step- 
 ping Mill, for the grinding of corn, by which any number of con- 
 victs can be employed, without any departure from all necessa- 
 ry restraints, is brought forward by the society with much 
 zeal. 
 
 " A good prison," says the Report, " is a school of moral 
 discipline, where incentives to vicious propensities are removed 
 — where drunkenness and gambling are superseded by absti- 
 nence, order, and decorum — where, by personal seclusion and 
 judicious classification, the evils resulting from contamination, 
 are prevented — where the refractory are subdued by punish- 
 ment, and the idle compelled to labour until industry shall be- 
 come a habit. These are the leading features of a salutary sys- 
 tem of gaol management : and it seems wisely ordered, that this 
 discipline should form, at once the medium of reformation and 
 the intrument of punishment. That a well regulated system of 
 prison discipline," continues this document, " represses crime, 
 is proved by the best possible evidence." It further states, 
 " that in a great number of instances, offenders, even the roost 
 
95 
 
 hardened, who have for a reasonable time been subjected to a 
 well regulated system of discipline, do abstain from the further 
 violation of the law, and have in a variety of cases been known to 
 abandon their criminal pursuit." It then proceeds to illustrate 
 this position, by shewing that while in prisons not under good 
 discipline, the re committals will vary from fifteen to fifty per 
 cent : those to prisons under good management will vary from 
 one to seven per cent- (25) 
 
 These important facts afibrd evidence that should induce the 
 American people to persevere in every rational effort, to im- 
 prove the management of our Penitentiaries. It shews that 
 while capital punishments are without avail in England, that ex- 
 ertions to repress crime in the same country, by the judicious 
 management of criminals, meets with signal success. 
 
 We are fully aware, that great consideration is attached to 
 the Penitentiary System in the United Srates, by the enlighten- 
 ed men in Europe, who are now combining their exertions to 
 produce a radical reform in Penal Jurisprudence. Nor are im- 
 provements in the execution of Penal laws confined to England. 
 The Report of the Prison Society of Paris, shews that much is 
 doing in France, to combine punishment with reformation. 
 In Ireland, the, labours of the Dublin Association, for the im- 
 provement of prisons are working salutary changes. In Swit- 
 zerland, some useful reforms are taking place. In Russia, an 
 Association for the same purpose has been created : the loca- 
 tion is at St. Petersburgh, under the sanction of the Emperor 
 Alexander, who, is giving force and authority to its proceedings, 
 throughout his wide dominions. In Sweden, and Norway, in- 
 formation of the condition of all the jails is collecting under 
 the patronage of the two governments, that the hand of correc- 
 tion may be successfully applied in the treatment of criminals 
 
 (25) Preston, 4 per cent.— Wakefield, 4 percent — Bury, 5 per cent — Devizes, 
 the general average, about 3 percent, and for felons, only 1 percent. — Eodurin, 
 8 per cent. — Ipswich, 3 per cent. — Lewis, 6 per cent — and even at Gloucester, 
 where the prison is particularly crowded, only 7 per cent. Repobt, p. 86. 
 
96 
 
 after their sentence to public prjsons.(26) Let them not feel their 
 prospects darkened — let not their efforts be weakened, by the 
 partial failure of our own system. Not a fact remains on record 
 — not a defect has been revealed, in the projrress of thirty 
 years, to convince us that it cannot be rendered ail that it was 
 ever expected to be. And the Committee do feel ■themselves 
 bound to lay down the following broad positions : 
 
 First. That the Penitentiary System, as it now exists, in the 
 United States, with all its defects, is preferable to the former 
 systems of punishment in this country. 
 
 Secondly. That it is capable of being so improved, as to be- 
 come the most judicious and effective system of punishment 
 ever known in ancient or modern times. 
 
 Thirdly. That where it has been properly administered, as it 
 formerly was in Pennsylvania and New- York, it has succeeded 
 and answered the expectations of its early friends. 
 
 Fourthly. That solitary confinement, by night and by day, 
 combined with other regulations suggested in this Report, will 
 remedy all existing evils. 
 
 Fifthly. That it is the duty of the different states of the Union 
 to proceed, without delay, to its improvement and perfection. 
 
 Lastly. That corporal punishments and the infliction of 
 death, would not prove congenial to the moral sentiments and 
 feelings of the American people : and that the transportation 
 of convicts, is visionary, impracticable, and would not prevent 
 crimes and offences, even if it were adopted in our penal stat- 
 utes. The Committee hope and trust, that enlightened, hu- 
 mane, and public spirited individuals, of the different States in 
 the Union, will feel the responsibility that rests upon this coun- 
 try in relation to the System of which wc have so fully spoken. 
 
 This is no common age in the annals of mankind. More is 
 now doing to ameliorate the condition and to promote the hap- 
 piness of the human race, than any period of society has accom- 
 plished. The errors and vices of preceding centuries are in 
 the way of correction. There is a unity of thought, design, 
 
 (2G) Vide App. to the Report last alluded to. 
 
97 
 
 and action, among the most powerful empires of the earth, that 
 stands a moral phenomenon in the history of governments. At 
 length the spirit of Howard begins to walk abroad over the 
 face of Europe ; at length his voice is heard from the dark 
 abodes of the wretched and forsaken of our species — from the 
 peaceful vallies of Switzerland, to the Kremlin of Moscow.* 
 Penal jurisprudence gathers around it the regards of the jurists 
 and the lawgiver, and commands the illustrations of genius and 
 reflection. Its importance to the welfare and safety of nations 
 is duly considered, and on© improvement is rapidly succeeding 
 another. What do we then owe to ourselves — what do we owe 
 to the world as a nation ? Are we to permit caprice and preju- 
 dice to govern us, on a subject interesting to ourselves and inter- 
 esting to mankind, or are we to remember that a great experi- 
 ment in civil policy, blended with the dearest interests of hu- 
 manity, should not be abandoned, until tested by fidelity and 
 candour.'' If a mild Criminal Code, can be fairly tried any 
 where, it can be tried in this country. Our institutions were 
 established on the will of the people. They were the off- 
 spring of enlightened views and independent feelings. Edu- 
 cation is more generally difllised here, than elsewhere on the 
 civilized globe. The civil relations of life are less complex — 
 there is less of poverty and less of oppression. The cry of 
 bread and the approach of general want, are never known : pop- 
 ular sentiment is disposed to mildness, and to che adoption of 
 virtuous restraints. If the Penitentiary System should be aban- 
 doned, in such a country, what would the legislators of Europe 
 hereafter say What would those who must hereafter raise 
 their voices in our own halls of legislation, say .•' A System 
 founded on benevolent principles, was tried for thirty years un- 
 der circumstances the most propitious : it terminated in failure 
 and disappointment. Why should we again traverse the same 
 
 • " Instead of boasting of the name of Howard," says Mr. Roscoe, " we ought 
 rather to blush at its recollection, when we reflect that it is upwards of forty 
 years since the publication of his work, and that little iaiprovement has yet been 
 made." 
 
 13 
 
98 
 
 ground of experiment to meet with the same calamitous results ! 
 The causes of its failure would not descend to an impartial pos- 
 terity, with the story of its unfortunate termination. A lasting 
 and unqualified condemnation would settle over its untimely 
 grave. Devoutly do we trust that this train of prospective re- 
 flections will never exist in sober reality. Is an attempt to im- 
 pose the Criminal laws of nations worthy of a free people .'' Is 
 an attempt to wipe from the Penal codes of empires the shades 
 of barbarism and cruelty by example, worthy of christian land 
 Are the interests of bnmanity anH the plevation of our speciies, 
 objects worthy of constant solicitude, among a people who have 
 laid the deep foundations of the most rational and perfect con- 
 stitution of government that the long career of six hundred cen- 
 turies has produced .'' When popular states, in the vigor of 
 virtue and enterprise, forget the glorious march of the human 
 mind that has struck them into existence — when they forget their 
 character in the scale of principalities and kingdoms, and the 
 hopes of the bond and the free that are embosomed in their 
 fortunes — when such states turn back and pursue the steps that 
 lead to the dark policy of despotic governments, the prospects 
 of progressive improvenjent among mankind are indeed forlorn 
 and discouraging. There are principles and feelings in the 
 American nation that will produce results more grateful and 
 benificent. 
 
 To laws well adapted to their end, and to the certain and un- 
 deviating execution of these laws, we look for the direct pre- 
 vention of crimes and the reform of offenders. These are the 
 premises which we lay down and attempt to sustain. But wfe 
 must go further ; we must endeavour to narrow down the ne- 
 cessary application of these laws, by the diffusion of elementaiy 
 education, especially among the poorer classes of children. 
 Deterring men from committing crimes by the fear of punish- 
 ment, is one thing : creating in the mind a deep abhorrence to 
 what is morally wrong, is another. The generous and liberal 
 endowment of our free school establishments, more especially 
 in our large towns and cities, is directly connected with a sacred 
 
99 
 
 observance of the laws. This will lessen the number of those 
 unfortunate beings who become the subjects of severity ; and 
 the more rare we render offences, the more force we give the 
 influence of example, and the more restraint we impart to the 
 sentence of a criminal tribunal. When many suffer, shame is 
 divided, and felons mutually countenance each other. When 
 one suffers, he stands in the solitude of disgrace and reproach, 
 and distinction carries poignancy and retribution. 
 
 In submitting this Report to the American people, the Com- 
 mittee feel sensible that they have but commenced a work whose 
 completion will require many subsequent exertions. The com- 
 munity is prepared for a great change, in the administration of 
 our Penal laws ; and if we have been successful in directing the 
 views of the public to proper objects of consideration ; if our 
 ideas of existing defects in the Penitentiary System, and of the 
 most appropriate remedies to be applied for their eradication, 
 are calculated to awaken candid and anxious inquiry, we feel 
 that manifold benefits may follow our labours. 
 
 The committee also feel sensible, that no time should be lost 
 in collecting those facts, arranging those tables, and preparing 
 those data, that will enable us to institute comparisons and to 
 draw more perfect deductions. The history of our Peniten- 
 tiaries is crude and defective. Their management has not 
 been sufficiently uniform to afford a well tested series of facts, 
 and to permit general demonstration. The increase of popu- 
 lation ; the changes in the internal condition of the country ; 
 the want of employment in the most populous places ; the great 
 facilities for the forgery and circulation of spurious notes, crea- 
 ted by the rapid and impolitic increase of banking institutions, 
 disqualify us from establishing those tests of the efficacy or in- 
 efficacy of laws, that can be found in older countries, where 
 there is stability in all the interior relations of the State. Vet 
 some land-marks may be erected. 
 
 In case solitary confinement should be resorted to in the 
 United States, to that extent which would meet the views of the 
 Committee, an important change in the Criminal Codes of the 
 
100 
 
 different States would become requisite. The term of impri- 
 sonment would be necessarily much shorter than it is at present, 
 and be graduated to the moral complexion of different offen- 
 ces, from the highest to the lowest crime. The first question 
 is, how shall we render punishments effectual The next is to 
 what extent shall they be aj)plied ? When the entire seclusion 
 of convicts is fully tried, the term of confinement, as we have 
 previously remarked, can be settled. 
 
 Since the foregoing pages were writlcn, the Honourable 
 Samuel M. Hopkins, of the New-York Senate, has made a 
 most interesting report to that body, on the Penitentiary Sys- 
 tem of our own state. This document will be found the last 
 article in the Appendix. It embraces many of the views which 
 we have advanced, and recommends the solitary confinement 
 of convicts, in strong and emphatic language. Mr. Hopkins de- 
 serves the thanks of the pubHc for his lucid and convincing ex- 
 position. In this country and in Europe, it will be examined 
 with interest. It states the overwhelming fact, that since the 
 commencement of our system in this state, no less than 2,819 
 convicts have been discharged out of the state prison, by par- 
 dons, and the whole number of convictions, has been 5,069. 
 Of the whole number of felons, considerably less than one 
 half are natives of this state, and nearly one third, are from for- 
 eign countries. The rest of course, are from various parts of 
 the union. 
 
 The national government has no superintendance over the 
 Penitentiary System : Its improvement devolves on the differ- 
 ent Slates. The Committee will therefore send this Report 
 into the various sections of the Union ; and they hope that it 
 will elicit, in return, the strictures and suggestions of men, who 
 are capable of casting light on the grand inquiry which it em- 
 braces. 
 
 The Committee return their sincere thanks to those gentle- 
 men, who have forwarded them answers to their circulars. 
 Their letters arc contained in the appendix, and will be read 
 with the liveliest interest. In rendering this tribute of grati- 
 
101 
 
 tude, they feel regret that a great majority of their circulars 
 were neither answered nor noticed. 
 
 In conclusion, it becomes necessary to remark, that the fore- 
 going is but a Report in part. It will be followed by a second 
 Report, as soon as circumstances may render it expedient- 
 
 CHARLES G. HAINES, Chairman of the Commiitee. 
 
 (Note by the Chairman of the Committee.) 
 
 The following named gentlemen compose the Committee 
 from which this Report emanates : — The Hon. Cadwalladcr 
 D. Colden, Thomas Eddy, Esq. Hon. Peter A. Jay, Rev. James 
 Milner, Rev. Cave Jones, Isaac Collins, Richard R. Ward, 
 and Charles G. Haines, Esquires. Mr. Colden was Chairman 
 of the Committee, and on him devolved the duty of drawing up 
 the Report on the Penitentiary System. On his election to 
 Congress, he found himself unable to attend to the subject, 
 from the pressure of public and professional business, and Mr. 
 Haines was selected to supply his place. 
 
(A) 
 
 We cannot forbear in this place, to quote the following articles from 
 our different constitutions of this country, which secure to our citi- 
 zens one of the greatest blessings of free government. Our funda- 
 mental principles are sound. We want nothing but Criminal Codes 
 in conformity to them, and the proper administration of those codes, 
 to render us an example worthy of universal and Icisting imitation. 
 
 " The trial of all crimes, except in cases of impeachment, shall be 
 by jury, and such trial shall be held in the state where the said crimes 
 shall have been committed ; but when not committed within any state, 
 the trial shall be held at such place or places as the Congress may by 
 law have directed. 
 
 " No person shall be held to answer for a capital or otherwise infa- 
 mous crime, unless on a presentment or indictment of a grand jury, 
 except in cases arising in the land or naval forces, or in the militia, 
 when in actual service, in time of war or public danger ; nor shall any 
 person be subject for the same offence to be twice put in jeopardy of 
 life or hmb ; nor shall be compelled, in any criminal case, to be a wit- 
 ness against himself, nor be deprived of life, liberty or property, with- 
 out due process of law ; nor shall private property be taken for pub- 
 lic use, without just compensation. 
 
 " In all criminal prosecutions the accused ^all enjoy the right to a 
 speedy and public trial, by an impartial jury of the state and district 
 wherein the crime shall have been committed, which district shall have 
 been previously ascertained by law, and to be informed of the nature 
 and cause of the accusation ; to be confronted with the witnesses 
 against kiqji ; to have compulsory process for obtaining witnesses in 
 his favor ; and to have the assistance of counsel for his defence." 
 
 ICoitstitution of the United States. 
 
2 
 
 •• No person shall be held to answer for any crime or offence, until 
 the same is fully and plainly, substantially and formally, described to 
 him : nor be compelled to accuse or furnish evidence against him- 
 self. And every person shall have a right to produce all proofs that 
 may be favourable to himself ; to meet the witnesses against him face 
 to face ; and to be fully heard in his defence, by himself and counsel. 
 \nd no person shall be arrested, imprisoned, despoiled, or deprived 
 of his property, immunities, or privileges, put out of the protection of 
 law, exiled, or deprived of his life, liberty, or estate, but by the judg- 
 ment of his peers, or the law of the land. 
 
 " No person shall be liable to be tried, after an acquital, for the 
 same crime or offence. Nor shall the legislature make any law that 
 shall subject any person to a capital punishment, (excepting for the 
 government of the army and navy, and the militia in actual service,) 
 without trial by jury. 
 
 " In criminal prosecutions, the trial of facts in the vicinity where 
 they happen, is so essential to the security of the life, liberty, and es- 
 tates, of the citizens, that no crime of offence ought to be tried in any 
 other county than that in which it is committed, except in cases of gene- 
 ral insurrection in any particular county, when it shall appear to the 
 judges of the superior courts that an impartial trial cannot be had in 
 ihe county where the offence may be committed, and upon their 
 report, the legislature shall think proper to direct the trial in the nearest 
 county in which an impartial trial can be obtained. 
 
 " All penalties ought to be proportioned to the nature of the offence. 
 No wise legislature will affix the same punishment to the crimes of 
 theft, forgery, and the like, which they do to those of murder and 
 treason. Where the same undistinguished severity is exerted against 
 all offences, the people are led to forget the real distinction in the 
 crimes themselves, and to commit the most flagrant with as little com- 
 punction as they do the slightest offences. For the same reason, a 
 multitude of sanguinary laws is both impolitic and unjust : The tnie 
 design of all punishments being to reform and not to exterminate man- 
 kind." [Constitution of New-Hampshire, 
 
 " Every subject of the commonwealth ought to find a certain reme- 
 ily, by having recourse to the laws, for all injuries or wrongs which he\ 
 may receive, in his person, property, or character. He ought to ob- 
 
3 
 
 tain right and justice freely, and without being obliged to purchase it — 
 completely, and without any denial — promptly, and without delay- 
 conformably to the laws. 
 
 " No person shall be held to answer for any crime or offence, until 
 the same is fully and plainly, substantially and formally, described to 
 him ; or be compelled to accuse oi furnish evidence against himself. 
 And every person shall have a right to produce all proofs that may be 
 favourable to him ; to meet the witnesses against him face to face, 
 and be fully heard in his defence, by himself or his counsel, at his 
 election. And no person shall be arrested, imprisoned, or deprived 
 of his property, immunities or privileges, put out of the pnotection of 
 the law, exiled, or deprived of his life, liberty, or estate, but by the 
 judgment of his peers, or the law of the land. 
 
 And the legislature shall not make any law that shall subject any 
 person to a capital or infamous punishment (excepting for the govern- 
 ment of the army and navy) without trial by jury. 
 
 " In criminal prosecutions, the verification of facts, in the vicinity 
 where they happen, is one of the greatest securities of the life, liberty 
 and property of the citizen. 
 
 [^Constitution of Massachusetts. 
 
 " In all Criminal prosecutions, the accused shall have a right to be 
 heard, by himself and by counsel; to demand the nature and cause of 
 the accusation ; to be confronted by the witnesses against him ; to 
 have compulsory process to obtain wtnesses in his favor ; and in all 
 prosecutions by indictoient or information, a speedy public trial by an 
 impartial jury. He shall not be compelled to give evidence against 
 himself, nor be deprived of Ufe, liberty, or property, but by due course 
 of law. And no person shall be holden to answer for any crime, the 
 punishment of which may be death, or imprisonment for life, imless 
 on a presentment or an indictment of a grand jury ; except in the 
 land and naval forces, or in the militia, when in actual service, in time 
 •f war or public danger.'' 
 
 [Constittttion of Coanecticut. 
 
 " In all prosecutions for criminal offences, a person hath a right to 
 be heard by himself and his counsel ; to demand the cause and nature 
 of his accusation ; to be confronted with the witnesses ; to call for 
 ''vidence in his favour, and a speedy public trial, by an impartial jury 
 
of his country; without the unanimous consent of which jury, he can- 
 not be found guilty ; nor can he be compelled to give evidence against 
 himself; nor can any person be justly deprived of his liberty, except 
 by the laws of the land, or the judgment of his peers. 
 
 [Congtitutim of Vermont. 
 
 " And it is further ordained, that in every trial or impeachment, or 
 indictment for crimes or misdemeanor, the party impeached or indicted 
 shall be allowed counsel, as in civil actions." 
 
 [Constitution of New-York, 
 
 "All criminals shall be admitted to the same privileges of wit- 
 nesses and counsel, as their prosecutors are or shall be entitled to." 
 
 [Comtitution of New-Jersey. 
 
 " In all criminal prosecutions, the accused hath a right to be heard, 
 by himself and his counsel ; to demand the nature and cause of the 
 accusation against him ; to meet the witnesses face to face ; to have 
 compulsory process for obtaining witnesses in his favour ; and, in pro- 
 secutions by indictment or information, especially, public trial by an im- 
 partial jury of the vicinage. That he cannot be compelled to give evi- 
 dence against himself, nor can he be deprived of his life, liberty, or 
 property, unless by the judgment of his peers, or the law of the land.'* 
 
 [Constitution of Pennsylvania. 
 
 In all criminal prosecutions, the accused hath a right to be heard, 
 by himself and his counsel ; to be plainly and fully informed of the 
 nature and cause of the accusation against him ; to meet the witnesses 
 in their examination, face to face; to have compulsory process in due 
 time, on application by himself, his friends, or his counsel, for obtain- 
 ing witnesses in his favour^ and a speedy and public trial, by an impar- 
 tial jury. He shall not be compelled to give evidence against himself j 
 nor shall he be deprived of life, liberty, or property, unless by the 
 judgment of his peers, or the law of the land." 
 
 [Constitutian of Delaware. 
 
 " In all criminal prosecutions, every man hath a right to be inform- 
 ed of the accusation against him ; to have a copy of the indictment or 
 charges in due lime, (if required,) to prepare for his defence ; to be 
 
6 
 
 allowed counsel ; to be confronted with the witnesses against him, to 
 have process for his wittnesses; to examine the witnesses for and 
 against him, on oath ; and to a speedy trial, by an impartial jury, with- 
 out whose unanimous consent, he ought not to be found guilty. 
 
 " No man ought to be compelled to give evidence against himself, 
 in a court of common law, or in any other court, but in such cases as 
 have been usually practised in this state, or may hereafter be directed 
 by the legislature. 
 
 *' No freeman ought to be taken, or imprisoned, or disseized of his 
 freehold, liberties , or privileges, or outlawed, or exiled, or in any man- 
 ner destroyed, or deprived of his life, liberty or property, but by the 
 judgment of his peers, or by the law of the land. 
 
 " Excessive bail ought not to be required, nor excessive fines impo- 
 sed, nor cruel and unusual punishment inflicted by the courts of law.'' 
 
 [^Comtitution of Maryland. 
 
 " In all criminal prosecutions, every man hath a right to be inform- 
 ed of the accusation against him, and to confront the accusers and 
 witnesses with other testimony, and shall not be compelled to give 
 evidence at;ainst himself. 
 
 " No freeman shall be put to answer any criminal charge, but by 
 indictment, presentment, or impeachment. 
 
 " That no freeman shall be convicted of any crime, but by the 
 unanimous verdict of a jury of good and lawful men, in open court, as 
 heretofore used. 
 
 " Excessive bail should not be required, nor excessive fines impo- 
 sed, nor cruel or unusual punishment inflicted." 
 
 \^Constitution of North-Carolina. 
 
 " Within five years after the adoption of this constitution, the body 
 of our laws, civil and criminal, shall be revised, digested, and arranged 
 under proper heads, and promulgated in such manner as the legislature 
 may direct ; and no person shall be debarred from advocating or de- 
 fending his cause before any court or tribunal, either by himself or 
 counsellor, or both." 
 
 [^Constitution of Georgia. 
 
 " In all criminal prosecutions, the accused shall have a right to be 
 lieard, by himself or counsel : of demanding the nature and cause of die 
 
6 
 
 accusation against hi ra : of meeting the witnesses face to face: ofhav- 
 ing compulsory process for obtaining witnesses in his favour ; and, in 
 prosecution by indictment or information, a speedy public trial by an 
 impartial jury of the vicinage ; nor shall he be compelled to give evi- 
 dence against himself. 
 
 All prisoners shall be bailable by sufficient securities, unless for ca- 
 pital offences, where the proof is evident or presumption great ; and 
 the privileges of the writ of habeas corpus shall not be suspended, un- 
 less when in cases of rebellion or invasion the public safety may re- 
 quire it." 
 
 [_Constitution of Louisiana. 
 
 . In all criminal prosecutions, the accused hath a right to be heard by 
 himself and counsel ; to demand the nature and cause of the accusation 
 against him ; to meet the witnesses face to face : to have compulsory 
 process for obtaining witnesses in his favor ; and in prosecutions by 
 indictment or information, a speedy public trial, by an impartial jury 
 of the vicinage, that he cannot be compelled to give evidence against 
 himself, nor can he be deprived of his life, liberty, or property, unless by 
 the judgment of his peers, or the law of the land. 
 
 No person shall, for any indictable offence, be proceeded against cri- 
 minally by information, except in cases arising in the land or naval for- 
 ces, or the militia, when in actual service, in time of war or public dan- 
 ger, by leave of the court, for oppression or misdemeanor in office. So 
 person shall, for the same offence, be twice put in jeopardy of his life ; 
 or limbs, nor shall any man's property be taken or applied to public 
 use without the consent of his representatives, and without just com* 
 pensation being previously made to him." 
 
 [Constitution of Kentucky. 
 
 " No person arrested or confined in gaol shall be treated with unne. 
 cessary rigor, or be put to answer any criminal charge, but by present- 
 ment, indictment, or impeachment. 
 
 "In all criminal prosecutions, the accused hath a right to be heard by 
 himself and counsel, to demand the nature and cause of the accusation 
 against him, and to have a copy thereof; to meet the witnesses face to 
 face ; to have compulsory process for obtaining witnesses in his favour ; 
 and in prosecutions by indictment or presentment, a speedy public trial 
 by an impartial jury oftlie county or district in which the offence shall 
 
7 
 
 iave been committed, and shall not be compelled to give evidence 
 ag;iinst himself — nor shall he be twice put in jeopardy for the same of- 
 fence." 
 
 [Constitution of Ohio. 
 
 " No freeman shall be taken, or imprisoned, or disseized of his free- 
 hold, liberties, or privileges, or outlawed, or exiled, or in any manner 
 destroyed, or deprived of his life, liberty, or property, but by the judg- 
 ment of his peers, or the law of the land. 
 
 In all criminal prosecutions, the accused hath a right to be heard by 
 himself and his counsel, to demand the nature and cause of the accu- 
 sation against him, and to have a copy thereof ; to meet the witnesses 
 face to face ; to have compulsory process for obtaining witnesses in his 
 &vour-, and, in prosecutions by indictment or presentment, a speedy 
 pubUc trial, by an impartial jury of the county or district in which the 
 crime shall have been committed ; and shall not be compelled to give 
 evidence against himself. 
 
 No person shall, for the same offence, be twice put in jeopardy of his 
 Hfe or limbs." 
 
 [Constitution of Tennessee. 
 
 " In all criminal prosecutions, the accused hath a right to be heard 
 by himself and counsel : to demand the nature and cause of the accu- 
 sation : to be cobfronted by the witnesses against him : to have com- 
 pulsory process for obtaining witnesses in his favor, and, in all prose- 
 cutions by indictment or information, a speedy public trial, by an im- 
 partial jury of the county ; that he cannot be compelled to give evi- 
 dence against himself, nor can he be deprived of his life, liberty, or 
 property, but by due course of law." 
 
 [Constitution of Mississij,pi. 
 
 " In all criminal prosecutions, the accused hath a right to be heard 
 by himself and counsel ; to demand the nature and cause of the accu- 
 sation against him, and to have a copy thereof; to meet the witnesses 
 face to face ; to have compulsory process for obtaining witnesses in his 
 favor ; and, in prosecutions by indictment or presentment, a speedy 
 public trial, by an impartial jury of the county or district in which the 
 offence shall have been committed, and shall not be compelled to give 
 
8 
 
 eviJence against himself, nor sliall be twice put in jeopardy for the 
 same oflence." 
 
 [^Coiistitution of Indiana. 
 
 " In all criminal prosecutions, the accused hath a right to be heard 
 by himself and counsel ; to demand the nature and cause of the accu- 
 sation against him ; to meet the witnesses face to face ; to liave com>' 
 pulsory process to compel the attendance of witnesses in his favor; j 
 and, in prosecutions by indictment or information, a speedy public trial 
 by an impartial jury of the vicinage ; and that he shall not be compel- 
 Je«l to give evidence against himself." 
 
 [Constitution of Illinois. 
 
 -aillll^llllie- 
 
 LETTERS. 
 
 Thb following letters will be perused with deep interest. They come j 
 from persons well known to the American community. They com- i 
 bine latent observation and public spirit, and reflect great and last- 
 ing credit on the zeal of the authors. It is indeed to be regretted, 
 that persons in the United States, capable of improving our laws 
 and our institutions, are too frequently so little disposed as they cire, 
 to place the result of their reflections before the nation, or to inves- 
 tigate subjects vitally connected with the happiness and prosperity 
 of the coiintry. Would the most capable and distinguished men, 
 in the different states, compare the constitutions and municipal laws 
 of their respective members of the confederacy, and borrow and 
 renounce whatever reason, time and experience dictate, great and 
 salutary benefits would result from the policy. 
 
 The communications here inserted, were written in answer to the 
 following 
 
 CIRCULA.R : 
 
 Sir, 
 
 The undersigned, having been appointed a Committee, in tJie 
 City of New- York, to prepare a General Report on the results andi 
 tendency of the Penitentiary System, feel a sincere anxiety to pro- 1 
 ceed under circumstances the best calculated to give a clear and satis- 
 factory termination to their investigations. They consider the duty 
 
9 
 
 confided to their fidelity and research, as one eminently interesting to 
 the deepest interests of society. The subject of their inquiry is iden- 
 tified with the Penal Jurisprudence of the nation; and the final legis- 
 lative decision that must be pronounced upon it, will determine, for 
 generations, the spirit of mildness or severity, that is to mark the ad- 
 ministration of criminal justice. 
 
 It is not to be concealed, that there is much diversity of opinion, in 
 difierent sections of the United States, as to the soundness of the Peni- 
 tentiary System : — by Penitentiary System, we refer to those laws 
 which consign convicts to confinement and labour — the construction 
 and internal regulations of our state prisons — and the designed reform 
 and penitence of the criminals, there confined. While a great portion 
 of the intelligent and well-informed feel confident that this system can 
 be so improved and regulated as to answer the original designs of the 
 institution ; others advance the doctrine, that it is founded on principles 
 that are false and erroneous, and that a more rigid treatment of the 
 perpetrators of crimes must be embraced. Some defend the expedien- 
 cy of resorting to capital punishments, to transportation, or the chain, 
 for the correction of many crimes whicJi now constitute the higher de- 
 grees of felony. 
 
 In this state of doubt and conflict in the public mind, it is to be ar- 
 dently hoped, that we may investigate and reflect, and arrive to a cor- 
 rect standard of conviction. We know of no better method to pursue, 
 than to collect facts and solicit aid and liglit from some of the distin- 
 guished men of the nation. In appealing to their superior intelligence, 
 judgment and reflection, we feel sensible of taking no ordinary liberty ; 
 but the interests which we are labouring to promote, are public inte- 
 rests — equally pertainiog and equally important, to all classes and sec- 
 tions of the great American community. 
 
 We therefore. Sir, respectfully address the following inquiries to 
 you, with an assurance, that whether you answer all or any of them, 
 we shall appreciate your kindness with sentiments of gratitude. 
 J. What has been the effect of the Penitentiary System, in the United 
 
 States, to suppress crimes, as compared with that of the laws which 
 
 existed in relation to public offences, prior to the adoption of this 
 
 tyttem ? 
 
 IT. Has the Penitentiary Sysfem failed to answer the ends of its in- 
 stitution : — and, if no, to what is the failure to be attributed ? 
 
 B 
 
10 
 
 III. Is it politic and necessary to abandon the Penilenliary System ; 
 
 or, it it better to attempt its improvement ? 
 IF. If the Penitentiary System is to be abandoned, to what shall we 
 
 resort as a substitute? 
 
 V. Would it better promote the ends of justice, and contribute to pub- 
 lic security, to adopt capital punishments, to any greater extent than 
 the present laws embrace ? 
 
 VI. Would it be politic and practicable to transport criminals ; or, 
 teould it be consistent with the nature of our institutions, and pre- 
 vent crimes, and reform convicts, to doom them to the chain ? 
 The feeling and anxiety which are excited in England, and in other 
 
 parts of Europe, at the present moment, on the efficacy or inefBcacy 
 of the Penitentiary System ; the pressing letters continually received 
 by us, for the fruits of the experience and observation of this country ; 
 — and the stress which is laid on the successful adoption of a mild 
 Criminal Code in the United States, by many of the first characters of 
 the old world — form an additional inducement for us to treat the sub- 
 ject of this letter with uncommon attention, and to solicit your opinion. 
 
 When our Report is published, we shall do ourselves the pleasure to 
 transmit a copy to you. 
 
 CADWALLADER D. COLDEN, 7 . 
 P. A. JAY, I I 
 
 JAMES MILNOR, > | 
 
 THOMAS EDDY, J J 
 
 CH. G. HAINES, \ 
 
 LETTERS FROM THE STATE OF PENNSYLVANIA. 
 
 J%e Honorable JOSEPH HOPKINSON, to the Committee of 
 Correspondence. 
 
 BORDENTOWN, Oct. 10, 1820. 
 
 GENTLEMEN, 
 
 I have received your Circular, written for the purpose of collect- 
 ing information " on the results and tendency of the Penitentiary Sys- 
 tem," and feel it a duty to reply to an application so fully entitled to 
 respect, although I do not hope to add any thing to the facts and opin- 
 ions which will be in your possession, from other sources, on this im- 
 portant subject. From the first experiment of this system in Pennsyl- 
 
11 
 
 vama, 1 have leared that, leaving one extreme, sliocking for its cruelty 
 and carelessness of human life, we should pass to another, inadequate 
 Vo produce the proper and salutary effect intended by human pnn- 
 ishnients — the safety of society. The experience of thirty years has 
 confirmed, in my mind, these apprehensions, and satisfied me, that we 
 have vibrated too far on the side of lenity, and that some change is 
 necessary for security against the perpetration of crimes ; and for re- 
 lieving us, too, from the great and growing expense of the present 
 system. The expectation that the aggregate labour of the convicts 
 would be sufficient for their aggregate support, or rather for the main- 
 tenance of the institution, has entirely failed in Pennsylvania. There 
 is no doubt this subject is full of difficulties ; and it is not to be won- 
 dered, that the true point should not have been struck at the first at- 
 tempt ; nor that good and humane men, recoiling from a system of 
 blood, should have fallen into one of excessive indulgence to criminals. 
 The plan adopted by New- York, for ascertaining the just measure of 
 punishment, which you are now executing, promises to bring us as 
 near to perfection, in this most interesting matter, as can be attained. 
 To fix a precise standard, which shall afford, in all cases, the neces- 
 sary protection to the community, without undue severity to offenders, 
 is impossible ; but, inasmuch as the safety of the whole, or, at least, 
 ilie greater and honest part of the whole, is the end to be attained, ii 
 should be the principal object of attention ; and, of course, the condi- 
 tion of those who make themselves obnoxious to the penal laws, must 
 be secondary considerations. Self-detence, or a protection from wrong, 
 being admitted to be the ground of justification of human punisli- 
 ments, it must be lawful and right to extend them as far as the attain- 
 ment of their object shall require. 
 
 I beg you to pardon these general introductory remarks ; and will 
 proceed to offer the answers, which occur to me, to the specified ques- 
 tions contained in your letter ; premising that, as I have no means 
 here of referring to records and documents, I can only give the general 
 results of my observation. 
 
 L What has been the effect of the Penitentiary System in the Uni- 
 ted States, to suppress crimes, compared with that of the laws which 
 existed in relation to public offences, prior to the adoption of this sys- 
 tem ? 
 
 In considering this question, we should bear in mind, that the sj-s- 
 
12 
 
 tern of pnnishment is not the only cause whicli produces the increase 
 or suppression of crimes ; and, of course, that any comparison of the 
 number before and after the introduction of the penitentiary plan, 
 must not be exclusively referred to the operation of that system. 
 The state of the country, and the condition of the people, greatly in- 
 fluence the production of crimes. This is particularly to be attended 
 to in the United States, whose situation changed so rapidly and mate- 
 rially in a few years: and this change from general poverty and de- 
 pression, to universal prosperily, began soon after the adoption of the 
 new penal system in Pennsylvania, and especially applies to her expe- 
 rience of it. Again — there are certain crimes which, from their na- 
 ture, can hardly be supposed to be greally afiectcd by lliS jiunishment 
 which will follow them ; and their increase or diminution must depend 
 upon other causes. Of this class is murder, always committed from 
 motives or impulses much above any consideration of consequences : 
 and, generally, those offences which originate in the sudden excitement 
 of violent and ungovernable passions. A murderer (in my view) is 
 put to death, not to prevent another man from committing the same 
 oflence, but that he may not repeat it. If penal laws, or rather the 
 degree of punishment inflicted by them, have any considerable effect 
 on the prevention of crimes, it must be of those which are committed 
 with deliberation, and a certain degree of calculation of consequences. 
 How then does the comparison stand, in relation to such offences, be- 
 fore and after the adoption of the Penitentiary System ? — and is any 
 change that has taken place to be attributed to the operation of that 
 system, or some other cause ? I can speak only of the experience of 
 Pennsylvania, where the new system was. introduced in the year 1790, 
 or thereabout From the observation I have made, I would say, that 
 since that period, there has been a visible diminution of the more atro- 
 cious crimes against property, such as robberies and burglaries ; but 
 an immense increase of smaller larcenies ; and yet neither the one nor 
 the other may be attributable to the change of punishment. As to 
 the decrease of those higher offences, that bespeak a greater degree 
 of depravity and desperation, we should remember that the peace 
 which followed the Revolutionary war, let loose upon society thousands 
 of pennyless and desperate men, familiar with danger, who had long 
 been unused to the habits of industry and care, necessary for their owr 
 support, and many of whom could not And employment even if dispe- 
 
18 
 
 sed to seek it. In short, the country was over-run with the idleness 
 .ind vices of a disbanded army ; and the general poverty of the peo- 
 ple, with the unusual suspension of business, made it impossible t« 
 find labour for those who were willing to live honestly. We see here 
 a productive and sufficient source of crimes prior to the year '90. 
 The adoption of the Federal Constitution, followed up by the troubles 
 of Europe, introduced to us a supply of wealth and spirit of enter- 
 prise, with a consequent demand for labour, that offered the most libe- 
 ral and flattering temptations to industry of every description, and has 
 been, in my opinion, the eflScient cause of the diminution of the more 
 dangerous and desperate criminals. I cannot believe that a burglar 
 or highwayman would give over his trade, and betake himself to la- 
 bour, because his punishment was changed from the gallows to the 
 gaol, to be fed and cloatked as the law directs." 
 
 The increase, for some years past, of common larcenies, and lesser 
 breaches of the penal laws, in the city and county of Philadelphia, 
 has been enormous. Until the year 1799, but four days of the quar- 
 terly sittings of the court of Common Pleas and Sessions were allowed, 
 for the transaction of criminal business ; and they were found suflS- 
 cient for the disposal of all the cases ready for hearing. At present, 
 and for some years past, about two weeks are occupied in the city, 
 and as many in the county, with the criminal business, below the juris- 
 diction of a court of Oyer and Terminer, which is also held, from 
 time to time, as occasion requires. A reference to the records of the 
 courts will show the increase of the number of indictments and recog- 
 rozances in every year. Such is the fact ; but we cannot, with certain- 
 ty, trace the increase to the Penitentiary System ; inasmuch as the 
 great accession to the population of the district, must, in part, account 
 for it. Still, I think, the system, as it has been executed, is not guilt- 
 less. The manner and extent of its offending belong more properly 
 to the second enquiry. 
 
 n. Has the Penitentiary System failed to answer the ends of its in- 
 stitution ; and, if so, to what is the failure to be attributed ? I think 
 it lias failed in some very important particulars. It has, certainly, 
 the merit of humanity ; it graduates punishments by the scale of crim- 
 inality, with more justice than was done when so many crimes, widely 
 'iiffering in their danger to society, and their moral atrocity, were fol- 
 lowed indiscriminately with death. But it has failed either to reforjm 
 
14 
 
 convicts or prevent crimes. We all remember that the original friends 
 and advocates of the system, entertained high hopes of effecting the 
 reformation of offenders, by its mildness and discipline. I presume 
 this hope is now abandoned, as experience has proved it to be visiona- 
 ly. Of the thousands that have fallen under the penitentiary treat- 
 ment, how many h^ve been reformed by it ? Is there one clear, well- 
 authenticated case ? Hypocrites, and pretenders to feform, have been 
 innumerable ; who have played their tricks upon credulous inspectors 
 of prisons; obtained their liberty, and returned to their old vocation. 
 So far from reformation having been the effect of the system, as here- 
 tofore practised, one of its worst evils is, that by throwing a crowd of 
 criminals together, necessarily of different degrees of depravity, they 
 become equally wicked and corrupt, and skilled in the various contri- 
 vances to commit crimes, and elude justice. It is a college for the 
 education of men to prey upon society. A novice, who, if kept from 
 company worse than himself, might have been reclaimed from his first 
 attempts is here associated with old, hardened and skillful offenders ; 
 he hears with envy and admiration, the stories of their prowess and 
 dexterity ; his ambition is roused, his knowledge extended by these 
 recitals, and every idea of repentance is scorned ; every emotion of 
 virtue extinguished. Instances of this sort are numerous, both in the 
 United States and in England. 1 consider, then, this herding of crim- 
 inals together, as a vital defect in the system. Another cause of failure 
 may be found in the excess of lenity and indulgence shewn to convicts, 
 in the manner of the execution of the sentence of the law ; or rather 
 in the disregard of that sentence ; making their condition in sickness 
 and in health more tolerable and indeed comfortable than nine tenths 
 of the honest, labouring poor. One is put to sweep the gaol or gaol 
 yard, and that is a compliance with his sentence to hard labour ; an- 
 other makes soup or boils potatoes ; and another is placed at a desk, 
 to keep books and accounts, as an ordinary clerk. All this is done 
 under the direction and patronage or favouritism of Inspectors of the 
 prison, who take upon themselves, in this way, to dispense with the 
 judgment of the court. The least pretence of sickness is an excuse 
 from labour; and the work done by a convict is, at no time, much more 
 than half of what a common labourer would peiform. It is idle to 
 talk of the disgrace and shame forming any part of the punishment; 
 nothing is considered by these men but the confinement and work; 
 
15 
 
 mill, at [ircsent, tlic first is rendered tolerable, if not agreeable, by 
 society exactly suited to their taste ; and the last is so lightly impo- 
 sed as to be rather a healthy recreation, than a dreaded punishment. 
 
 A third cause of failure of the expected effects of the system, at 
 least in Pennsylvania, is, in my opinion, the large and unnecessary 
 powers given to the inspectors of the prison, already hinted at, amount- 
 ing in some instances, (such as have been mentioned,) to an entire 
 abrogation of the sentence of the law. The inspectors are, generally, 
 men of high respectability ; but their humanity, and I may say, some- 
 times their caprice, render them liable to very gross impositions, by 
 the artifice and management of those with whom they have to deaL 
 They are thus too frequently led to interfere with the strict and due 
 execution of the law ; sometimes in the shape of general regulations ; 
 sometimes by particular favour to individuals they undoubtedly 
 think deserving ; but most of all by their recommendations to pardon, 
 founded merely on the apparent or assumed repentance of the crimi- 
 nal, (of the sincerity of which he cannot judge,) or, what is called 
 his good behaviour in gaol ; and having no reference to the nature or 
 circumstances of his crime. This brings me to a fourth cause of the 
 failure of the system, viz : The indiscreet, thoughtless exercise of the 
 power of pardoning. This strikes at the vital principle of the system. 
 It was a capital argument with the friends of mild punishments, that you 
 would gain by their certainty more than you would lose in severity ; 
 that laws cannot be executed which shock the good feelings and com- 
 mon sense of mankind ; that juries would not convict when they could, 
 by any possibility, evade the evidence ; and that were convictions 
 obtained, pardons must be constantly interposed to prevent the inflic- 
 tion of a sanguinary and disproportionate punishment. All this 
 was to find a remedy in the Penitentiary System, under which con- 
 dign punishment was infallibly to follow the detection of the offender. 
 The facility of granting pardons, most generally on the recommenda- 
 tion of inspectors, but often of persons having no knowledge either of 
 the criminal or his crime, has greatly impaired the foundation of the 
 system ; and deprived us of the uses that might have been derived from 
 it under a more rigorous execution of its provisions. The experiment 
 at least would have been more fair and satisfactory. Except in very 
 rare and extraordinary cases, a pardon should be founded only on cir- 
 '"umstances of excuse or alleviation attending the commission of the 
 
13 
 
 offence, but insufTicieut to \v<u-i ant a legal acquittal ; or on the discove'* 
 ry of facts unknown at the trial, which would probably have produced 
 an acquittal ; but to make the good conduct of a convict, under the 
 sentence of the law, a reason for remitting the sentence, is not only 
 unjust, as it destroys the relation that should subsist between the 
 crime and its punishment, and impolitic as it affects the general opera- 
 tion of the law ; but opens a door, and holds out a premium for fraud 
 and hypocrisy, wliicii all the sagacity and care of ^the inspectors can- 
 not guard against. 
 
 III. Is it politic cind necessary to abandon the Penitentiary System ; 
 or is it better to attempt its improvement ? I would not abandon the 
 system; but attempt its improvement; by limiting the power of the in- 
 spectors, on the treatment of the prisoners, so as to prevent any mate- 
 rial evasion of the sentence ; by checking the practice of pardoning ; 
 and most of all, by substituting solitary coiifinement (for shorter peri- 
 ods if necessary) in the place of the present mode of assembling the 
 convicts in a common yard or workshop ; and putting a dozen or twen- 
 ty of them in the same room to sleep. Work should be an indulgence, 
 or amelioration of the punishment ; the most atrocious offenders should 
 be confined separately, and have nothing to do. This change might 
 be applied only to crimes of a high grade ; and petty offenders dealt 
 with as heretofore. By this means, the punishment of the most despe- 
 rate and abandoned would become a terror to them ; and the evils 
 avoided that arise from the communication between the convicts, which 
 now unavoidably takes place. Young offenders, kept from the more 
 experienced, would have no means of improving their skill in iniquity, 
 or hardening their hearts against repentance ; and, if reformation can 
 be hoped for, under any circumstances, it must be when the culprit is 
 left to his own reflections, — his conscience his only companion ; and 
 separated from those who would confirm his evil propensities, and ri- 
 dicule his attempts or intentions to reform them. 
 
 IV. The answer of the third inquiry, renders a consideration of this 
 unnecessary. 
 
 V. Would it better promote the ends of justice, and contribute to 
 public security, to adopt capital punishment to a greater extent than 
 the. present laws embrace ? — In Pennsylvania, murder of the first de- 
 gree only, is punished with death ; and I am satisfied it would not be 
 politic to attempt to extend this punishment further in that state. It 
 is difficult to execute the law as it now stands ; and clear cases of mur-i 
 
ir 
 
 der of tlie fust degree, are frequently pronounced by Juries, to be of 
 the second, merely to evade the sentence of death. For my own part, 
 I confess, that, while I would not punish any depredator upon property 
 with a forfeiture of life, there is one other crime I would make capital, 
 I mean Rape. Of course I presume a case clearly made out and pro- 
 ved, in all its circumstances, to the satisfaction of the court and jury. 
 As to the facility of making the charge, and the difficulties of defence, 
 they are matters to be considered at the trial ; but when a conviction is 
 made, on undoubted testimony, I do not see why it should not be follow- 
 ed with the utmost severity of the law, whatever it may be. In many 
 cases the victim of the brutal effender would have been less injured by 
 the loss of life ; and her friends would have had a surer consolation, 
 than under this violence to her person, from which no purity of mind 
 can redeem her ; but which must destroy every hope of happiness in this 
 world. 
 
 VI. Would it be politic and practicable to transport criminals; co- 
 would it be consistent with the nature of our institutions, and prevent 
 crimes, and reform convicts, to doom them to the chain ? As to trans- 
 portation, I do not see how it is practicable. How can it be done by 
 an individual state ? Can a state obtain a distant territory ; a proper 
 place ; or provide the means of transporting the convicts to it, and of 
 confining them to it, and supporting them there ? It is clearly impos- 
 sible that each and every state can have a separate deposit ; and it is 
 almost equally difficult for them jointly to fix on one; to apportion the 
 expense of transportation ; of keeping up the establishment ; and to 
 agree upon the appointment of the necessary officers, and force to be- 
 kept there, and the rules and regulations which should govern the set- 
 tlement. As to the government of the United States, if willing to vol- 
 unteer its services, and undertake the trouble, expense, and superinten- 
 dence of such a settlement, for the whole, it seems to me to be, at least, 
 doubtful whether they have the power to appropriate the treasury of the 
 United States in this way. Constitutional power is sharply inquired 
 into when it puts its hand into the purse of the nation. I do not ex- 
 actly understand what is meant by dooming criminals to the chain ; 
 where, and for what purpose it is to be done ; but I am satisfied no 
 punishment of tiiis sort could have any effect in reforming convicts ; but 
 I would rather render them more hardened and desperate on their libe- 
 ! ration. 1 forbear to extend my observations onthi? head, because, be- 
 
18 
 
 iiig of opinion that solitary confinement, judiciously regulated, oflers 
 the best chance, both ol reformation, and the prevention of crimes, I 
 would give it a fair trial before 1 would resort to any other experi- 
 ment. 
 
 I have thus, gentlemen, given you my ideas on the several questions 
 proposed, without fastidiousness or reserve ; believing you would re- 
 ceive them as an evidence of ray good will to your excellent undertak- 
 ing ; and not as pretending to any particular knowledge of the subject ; 
 or bespeaking an overweening confidence in my opinions. If I shall 
 add but one useful hint to the mass of information you will doubtless 
 collect on this all-important subject, I shall be proud even of furnishing 
 that mite to your success. 
 
 Most respectfully, 
 
 Your obedient servant, 
 
 JOS. HOPKINSON. 
 
 Messrs. C. D. Colden, 
 P. A. Jay, 
 
 J. MiLNOR, 
 
 T. Eddy, 
 
 C. G. Haines. 
 
 From Bishop JFHITE, to the Committee. 
 
 Philadelphia, Nov. 8. 1820. 
 
 GENTLEMEN, . 
 
 Your letter, dated Sept. 1820, addressed to me as President of the 
 Philadelphia Society, for alleviating the miseries of public Prisons, was 
 duly laid before them, and they have directed me to answer it as fol- 
 lows : 
 
 The Penitentiary System in Pennsylvania, has, in a great measure, 
 answered the purposes contemplated by its founders, so far as it could 
 be conducted upon its original principles, and so long as the prisoners 
 could be kept separate from each other, and classed, and managed, 
 according to the plan proposed by the friends of the System j but the 
 prison now used in this city, is not much larger than it was thirty-five 
 years ago, since which time there has been nearly a threefold increase 
 of the inhabitants of the state, from all parts of which criminals arc 
 brought to the prison. 
 
 Having had so long an opportunity of observing the effects of thf 
 
19 
 
 Penitentiary System, this Society place full confidence in its efficacy, 
 and have no doubt that if a Penitentiary was established, sufficiently 
 large, and so constructed as to keep the prisoners properly separate 
 (luring the time of their meals, and labour, and sleeping, if no pardons 
 were granted, but in extraordinary cases, and if moderate diet, and so- 
 litary confinement were properly attended to, its efficacy would soon be 
 evident. 
 
 In reply to your queries, we can state, 1st. The effect of the Peni- 
 tentiary System in Pennsylvania to suppress crimes, as compared with 
 that of the laws which existed in this state, in relation to public offences 
 prior to the adoption of the System, has been very great, and highly 
 gratifying. 
 
 2d. We acknowledge that the practice under this system, has not 
 fully answered the ends of its institution — and this is to be attributed, 
 with us, in a great measure, to the want of a proper establishment, in 
 which the old convicts could be kept separate — also to the deficiency 
 of providing suitable employment. The frequency of pardons, and the 
 desolate condition of the prisoners when discharged, are also great ob- 
 stacles to their reformation. 
 
 3d. To abandon the System, would not, in our opinion, be politic or 
 necessary ; to attempt its improvement, should be the future business 
 of the friends of humanity. 
 
 4th. No substitute offers to us, in case of the abandonment of the 
 System. 
 
 6th. We do not believe it would better promote the ends of justice, 
 or contribute to publi' security, to adopt capital punishment to any grea- 
 ter extent than the present laws embrace. 
 
 6th. We consider transportation as inexpedient, and think, that if 
 the Penitentiary System were carried into effect, the other would be un- 
 necessary. The chain nas never produced any good effect — but could 
 a full trial of solitude, labour, and moderate diet, be made, under the 
 direction of suitable agents, it is believed, nothing further would be re- 
 quisite. 
 
 Signed by order of Society, , 
 
 WM. WHITE, Prfesident.. 
 
 Messrs. C. D. Colden, 
 P. A. Jay, 
 
 J. MiLNOR, 
 
 T. Eddv, 
 C. G. Haines. 
 
20 
 
 JVILLIAM RAJVLE, Esq. to the Committee. 
 
 Philadelphia, Sept. 19, 1820. 
 
 GENTLEMEN, 
 
 I have had the lionor to receive your letter of enquiry, relative to 
 the Penitentiary System ; and having no doubt that you will be fully 
 furnished by others with details not in my power to give, I proceed to 
 express my opinions generally, in respect to the interesting subject of 
 your enquiry. 
 
 The first and second questions, may be answered together. In 
 Pennsylvania, the number of the highest order of crimes, has, I think, 
 diminished, since the adoption of this system— ttiking into view, the 
 increase of our population. 
 
 In respect to offences of the lower grade, it has operated most bene- 
 ficially, by this abstraction of number, during the confinement imposed 
 by law. In this respect, (if in no other) society receives a manifest ad- 
 vantage. Formerly, after sufl'ering the established modes of punish- 
 ment, whipping, the pillory, &c. the convict, (if able to pay the fees) 
 was at once turned loose upon the world, degraded, and desperate, and 
 for want of other support, compelled immediately to renew his depre- 
 dations, or to starve. Now, society at least gains the benefit of his ab- 
 sence, for the term of his sentence. That the system has not yet (with 
 us) fully succeed, in practice, is not to b« denied. A sincere reforma- 
 tion of the offender has seldom been produced, and even if it exists, is 
 seldom believed : individuals generally turn with distrust and appre- 
 hension from him, who appears before them tainted with the infliction 
 of such a sentence. The inability to obtain an honest livelihood, too 
 frequently drives these unfortunate beings to a repetition of their bad 
 courses, and renders them again and again, tenants of the prison. 
 
 To remedy this evil, we want another institution, in which the con- 
 vict, having served out the time of confinement, should, on application, 
 be sure of finding employment. This should be under public regula- 
 tion, and at further expence. Entrance should be voluntary, but some 
 restrictions should be imposed on departure. A proportion of the pro- 
 fits of his labour, should, by agreement, be secured to them, and faith- 
 fully accounted for. 
 
 3d. With proper internal improvements, I prefer retaining the Peni- 
 tentiary System. In principle, it is sound and correct. The chief im- 
 provements wanting, appear to me to be, the inforcing a more close 
 
21 
 
 and regular attaiidance to rtligioas duties. In no other way can the 
 obduracy of these people's hearts be affected. In the recent instance 
 of the Newgate prisoners, we have seen what may be effected by the 
 perseverance of an enlightened individual. Strict solitary confine- 
 ment, should be the chief punishment — no other solace than religious 
 books, should be allowed on such occasions. 
 
 4th and 5th. Being opposed to the abandonment of the Penitentiary 
 System, I have little to offer on the subject of a substitute. I may how- 
 er, be allowed to dissent from the increase of capital punishments. 
 Whether it is lawful for man, in any case, except that of immediate 
 self-defence, to deprive another of his life, is a subject of high impor- 
 tance, into which it is needless, at present, to enter. But in every mo- 
 dern code of criminal law, it seems to be admitted, lliat capital punish- 
 ments should be as few as i)ossible. 
 
 6th. If transportation for life were practicable, it would, perhaps, be 
 the most certain mode of relieving the community from the burthen of 
 its guilty members. But I know not how it could be effected. The 
 consent of the inhabitants of the country, must be obtained, or they 
 would be refused admission ; or, if not destroyed after landing, return- 
 ed upon our hands. 
 
 Land them on an island in the south sea ; if they should overpower 
 the peaceable inhabitants, what a series of crimes would probably en- 
 sue ; and how could we justify ourselves for being the cause of it ? 
 
 As to the " chains," if by this is meant that the convict should be 
 employed in the public, or exposed labour in the streets, highway, &c. 
 as was once attempted in Philadelphia, and seems by Howard's great 
 work, to have been practised in some of the European cities, I cannot 
 too strongly express my disapprobation of it. 
 
 With us, refractory conduct, daring, and often, obscene language, 
 useless labor, or rather, the mere semblance of labor, and frequent es- 
 capes, soon induce us to relinquish the plan. 
 
 If the chain should be tried again, the criminals should be kept to- 
 gether, secluded from the public, and debarred from all e.xtraneous 
 communication in, going to, or returning from, their daily tasks. That ^ 
 reformation which is always a leading object, and which was never at- 
 tained by the public exposure, might possibly be thus effected. 
 
 This concise view will, I hope, be as acceptable as a diffuse and ela- 
 
22 
 
 borate answer. I will, at any rate, evince my full concurrence in the 
 great object of your present consideration. 
 I have the honor to be, 
 
 Gentlemen, 
 
 Your most obedient servant, 
 
 W. RAWLE 
 
 Messrs, C. D. Colden, 
 P. A. Jay, 
 
 J. MlUJOR, 
 
 T Eddy, 
 
 C. G. Haines, 
 
 ROBERTS VAUX, Esq. to the Crnimittec. 
 
 Philadelphia, II Mo. 14, 1820. 
 
 RESPECTED FRIENDS, 
 
 It afforded nie great satisfaction to learn by your circular letter o 
 September last, that you were endeavouring to collect information con- 
 cerning the effects of the Penitentiary System in the United States. A 
 more important inquiry has scarcely, if ever, been instituted in our 
 country, and I sincerely desire that the mode you have adopted, may 
 be the means of yielding for you, the lights of experience, and the sug- 
 gestions of wisdom. 
 
 Without pretending to be qualified for the administration of either of 
 those valuable assistants to your labours, 1 take the freedom to submit 
 a few thoughts. 
 
 My reflection upon this subject has induced me to believe, that the 
 Penitentiary System has never been y«Wy, and /aiV/y, adopted in any 
 sta e of the union, since that System consists, if I have correct ideas of 
 it, in the application of the following principles. 
 
 1st. That convicts undergoing its wholesome discipline, should be 
 rigidly confined to solitary life, and employment. 
 
 2d. That punishment should be adapted with great accuracy to the 
 nature of the offence, preferring to err on the side of clemency. 
 
 3d. That no redemption from the penalty should ever be allow- 
 ed. ' 
 
 4th. That instead of calculating what labour the prisoner can perform 
 
 to maintain himself during his confinement, let the attention of those 
 who have the care of him, be devoted to the great purpose of reforming 
 his mind. 
 
23 
 
 5lh. That men of integi ity, and honor, be appointed to the office of 
 Inspectors of Prisons, with ample powers to continue in office for a 
 terra not less than five years. 
 
 As these principles have not been applied in Pennsylvania, it can- 
 not be said, as some persons contend, that the system has failed to an- 
 swer the ends of its institution. 
 
 Imperfectly, however, as the experiment has been here made, great 
 benefits have resulted from it ; crimes have certainly lessened in num- 
 ber, and atrocity, and they will continue to diminish in the same de- 
 gree, as the aims of punishment are directed to reconcile the offender 
 to society, rather than by social life in jails, to educate prisoners in 
 villainy, and by degrading, and vindictive treatment when in prison, 
 establish opinions in their minds, that they are bound in honar, and in 
 valour, to array themselves against the community, and its laws. 
 
 Capital punishment, though of rare occurrence with us has generally 
 had an injurious effect — the spectacle of a public execution has always 
 been attended with numerous offences. If under any circumstances, 
 life must be taken, let the sufferer pay the forfeit within the prison walls, 
 obscured from public observation. 
 
 Transportation, seems to be an expedient rather premature for this 
 youthful nation; it would be difficult to procure a suitable place abroad 
 for locating prisoners. 
 
 In short, solitary confinement appears to be the only rational, and 
 efficient mode of punishment — its beneficial influence was strikingly 
 illustrated in the prison of this city, some years ago. A young offen- 
 der was committed to a cell, and left to his own reflections. Unknown 
 to the keeper, he had a pencil in his possession, with which he wrote, 
 and drew upon the wall. He commenced with exhibiting indecent ob- 
 jects, and recording scraps of lewd songs ; this occupied him as long 
 as his imagination supplied him with impure pictures, or his memory 
 furnished obscene verse ; he was now seen to record sentiments of vir- 
 tuous import, and in process of time, as if he had become gradually, 
 and deeply sensible of his own condition, he represented a ship driven 
 by the fury of a storm, and perishing under its effects : — finally he 
 drew a vessel gliding with easy sail into her desired haven, near which 
 he placed these memorable words of the Redeemer : — " Come unto me 
 ill ye that labour, and are heavy ladened, and I will give you rest." 
 
 I 
 I 
 
24 
 
 This individual was, in dbe time, released from confinement, reformed, 
 and became a respectable character. 
 I remain, 
 
 Very respectfully, 
 
 Your friend, 
 
 ROUERTS \AUX. 
 
 To C. D. CoLOEN, 
 
 p. A. Jay, 
 
 J. MiLNOR, 
 
 T. Eddy, 
 
 C. G. Haines. 
 
 From JAMES MEASE, Esq. 
 
 Philadelphia, Nov. 23, 1820 
 
 SIR, 
 
 I had the pleasure to receive, three weeks since, the circular of the 
 New- York Committee, on the subject of the Penitentiary System. Ha- 
 ving given my ideas with respect to it, and as to what ought to be 
 done, to render it more effectual, and to free us from the rogues, who 
 show, by repeated commission of crimes, that they are not to be refor- 
 med, 1 have nothing to add. What I have written, was the result of 
 mucli and careful inquiry, and I will venture to say, that all the infor- 
 mation collected by you, will only tend to substantiate my facts, and 
 show the propriety of the plan I have recommended. My papers are 
 contained in the 5th, 6th, 7th, and 8th numbers of the National Ga- 
 zette,^and were forwarded, shortly after their publication, to Thomas 
 Eddy, and I beg leave to refer you to them. I had prepared a 5th 
 paper, in which I pointed out the island of Tristanda Cunha, as the 
 most suitable place to transport felons to, but it was not published. 
 Wishing you all success in your important labours, 
 I remain, Sir, 
 
 Respectfully your fellow-citizen, 
 
 JAMES MEASE. 
 
 C. D. CoLDEN, Esq. Chairman of the 
 
 Neic-York Penitentiary Committee. 
 
25 
 
 From the same. 
 
 Philadelphia, Jan. 15, 1821. 
 
 SIR, 
 
 Some weeks since I had the pleasure to refer you to my papers 
 on the Penitentiary System of Pennsylvania, contained in the Na- 
 tional Gazette, of this city, by way of answer to your Circular, re- 
 questing information on that subject. I presume Mr. Thomas Eddy, 
 to whom they were sent shortly after publication, has communicated 
 them to you. They have recently been re-published in the Union 
 Gazette, of Philadelphia, more at large, and a number was added, 
 containing an account of the place to which I would have all those 
 criminals sent, for whose crimes I deem transportation essential. 
 This number I now enclose. I fear an expression contained in my 
 former letter, will be construed as implying a belief, on my part, that 
 I have exhausted the subject, and the inutility of the trouble which 
 yourself and colleagues have undertaken. I beg you to be assured 
 that these are not my sentiments : but I cannot, nevertheless, refrain 
 from saying, that I feel confident of my having fallen upon the only 
 plan that can with certainty and economy be adopted, to relieve socie- 
 ty from the prevalent accumulation of crimes, and to prevent them 
 among the rising generation. They are rigid solitary confinement, 
 without work ; cessation of pardons, except in particular cases spe- 
 cified ; transportation for all second offences, and for certain first 
 crimes ; and the diffusion of education among the poorer classes of 
 society. This last provision applies with great force to Pennsylvania. 
 A new law for that object is now before our legislature. 
 
 I understand that the project of building a new prison over the 
 marble quarries, or inclosing them within the walls, is now carrying 
 into effect, on York Island. If the expectations are, that the prison- 
 ers will be enclosed to repay for the expense of maintenance by their 
 labour ; that they will be reformed ; or deterred from the commissioa 
 of future crimes, when released from confinement, I do not hesitate 
 to say, and to predict, that disappointment on all those points will be 
 experienced. Your present establishment is infinitely more expensive 
 than that of Philadelphia ; and the new plan will be much more cost- 
 ly, and productive of no good, except accommodating the numerous 
 villains with which it will be filled, and do away the necessity of par- 
 doning old convicts to make room for new inmates. My plan of soli- 
 
 D 
 
26 
 
 tary coniinemeDt and transportation, after a few examples had been 
 made, would terrify the wicked into good behaviour A continuation 
 of the system of obliging criminals to work and sleep in society, will 
 inevitably cause the increase of crimes, and the perpetration of the 
 evils we at present deplore. The sooner it is abolished the better. 
 Accept my sincere respect. 
 
 JAMES MEAS£. 
 
 C. D. CoLDEN, Esq. Mayor of New- York, 
 Chairman of the Penitentiary Committee. 
 
 -»mil#lliii«=^ 
 
 CONNECTICUT. 
 iietter from his Excellency Governor fVOLCOTT. 
 
 Litchfield, Conn. Jan. 11, 1821. 
 
 SIR, 
 
 I have to acknowledge your letter of September last, requesting 
 information respecting tlie results of the Penitentiary System in 
 this State. 
 
 1 now transmit a copy of a letter from Martin Sheldon, Esq. with 
 a summary statement of the regulations and bye-laws of the New- 
 Gate Prison. Although I immediately attended to your request, it 
 was only a short time sinre, that I received the last of the documents 
 required, which will account for the delay of my reply. 
 
 The ancient punishments of those crimes, for which imprisonment 
 in New-Gate is now substituted, were, death, cropping the ears, 
 branding on the forehead, whipping, or the pillory. This prison is 
 either the oldest, or one of the oldest establishments of the kind, in 
 this country. The situation is secluded, at a distance from our prin- 
 cipal roads and villages. The annual expenses are now about eleven 
 thousand dollars. 
 
 It is believed by many, who are probably the best judges, that the 
 expenses might be reduced, by enclosing a greater space of ground, 
 and increasing the number of workshops and variety of labour per-i 
 formed by the prisoners. 
 
 Females are rarely convicted of crimes in this State, and are never 
 sentenced to New-Gate, but are confined separately in the county 
 work -houses. 
 
 The power of pardoning offences, is, by our constitution, exclusive-^ 
 
27 
 
 ly vested in the General Assembly. It is very rarely exercised, and 
 never, except upon proof of the good conduct of the convict, during 
 his confinement. 
 
 The prison is very secure. Its solitude, the appearance of the 
 caverns, and the arrangements for exacting the prescribed labour, are 
 appalling to beholders. It is probably a defect, that, for want of more 
 room, the means of discrimination between convicts of different de- 
 grees of enormity, do not sufficiently exist. But, notwithstanding 
 these circumstances, the situation is healthy and deaths are not suppo- 
 sed to occur more frequently, than among comparative numbers of 
 the inhabitants of the neighbouring towns and villages. 
 
 Public opinion, in this State, would not support an establishment, 
 which was supposed lo be inhuman, or unnecessarily rigorous. The 
 people are, however, economical, and are not willing that rogues should 
 become dangerous to society, or inconveniently burdensome to honest 
 men. 
 
 I have no doubt, that the institution of New-Gate has been saluta- 
 ry ; and, as far as my knowledge extends, no wish exists among the 
 people, that recourse should be had to the ancient modes of puntsh- 
 ment. 
 
 I am also satisfied that the Penitentiaiy System ought not to aban- 
 doned in the United States ; and especially that exile or banishment 
 ought not to be substituted. It is manifestly immoral and unjust for 
 any State to expel their profligate or degraded population upon ano- 
 ther community. 
 
 The unpopularity of the Penitentiary System, in several sections 
 of this country, has probably been chiefly occasioned by the constant- 
 ly increasing number of convicts, and by the enormous expenses of 
 these establishments, much of which, in my opinion, have been wholly 
 unnecessary and worse than useless. 
 
 The scale of human enjoyments rises from that degree of rest and 
 sustenance, which is barely sufficient to support life, to that which 
 affords the means of the highest innocent gratifications, both phy- 
 sical and mental ; and in the efforts of men to elevate their condition. 
 In this scale are to be found, (independent of religious sentiments, 
 which originate in a higher source,) the excitements to all human im- 
 1 provements, including all the motives which stimulate industr)', and 
 j the causes of evf ry attainment in civilizriiion and moral excellence. 
 Even the conduct of depraved men is influenced by a misdirected 
 
desire of happiness, but their reason being perverted, they seek to 
 obtain good by selfish indulgencies, and the gratification of unbridled 
 passions. It is the object of penitentiary establishments, to protect 
 society against injuries, to restrain tlie unprincipled, by the fear of 
 losing the enjoyments which they possess, and to convince offenders, 
 by actual deprivations, that " the way of the transgressor is hard.'' 
 In my opinion, these principles have not been sufficiently regarded, 
 in many of our establishments. The buildings which have hitherto 
 been most commonly erected, have been costly and magnificent struc- 
 tures, more resembling palaces, than places adapted to the punishment 
 of crimes ; and the appearance of the interior management has been 
 rather inviting than repulsive. Frequently, if not commonly, the 
 convicts have been fed and clothed in a manner superior to what ma- 
 ny, perhaps most of them, were accustomed to enjoy before their im- 
 prisonment, and superior to what great numbers of the virtuous poor 
 are able to acquire by their utmost exertions. The sense of shamt 
 has been extinguished, or levelled, by the indiscriminate treatment of 
 men of different temperaments, and by the accumulation of too great 
 numbers exposed to constant intercourse. Besides, contrary to a poli- 
 cy equally wise and humane, the condition of the convicts has been 
 presented to the imagination of spectators, as far more tolerable than 
 the truth would warrant, whereas an impression directly the reverse 
 ought to prevail. 
 
 The propensities and habits which dispose men to the commission 
 of crimes, are, violent passions, intemperance, and dishonesty. Con- 
 victs are commonly men of vigorous health, middle age, and frequent- 
 ly, they are neither deficient in intelligence nor education. When the 
 productive value of barbarous and unskillful African slaves is consider- 
 ed, and that this value is derived from their involuntary labour, much 
 of which could be more advantageously performed by horses and oxen,, 
 it is apparent, that such expenses as are now incurred for the support 
 of convicts, are chiefly owing to defective managements. 
 
 While I am satisfied, that the lives, property and tranquility of 
 peaceable and honest men ought to be absolutely protected, I am no 
 ad\( cate for cruel punishments. On the contrary, I believe that 
 criminals have rights, which ought to be conscientiously respected; — 
 that nothing will justify governments in depriving men of life, but the 
 preservation of the public peace ; and that arbitrary restraints, pain 
 and wretchedness, are both unjustifiable and unnecessary. j 
 
29 
 
 Penitentiaries ought, in my opinion, to be erected in healthy, but se- 
 cluded situations. A high wall, which could not be undermined, with 
 a raihng, protected by an armed guard, and with interior palisades, 
 and double gates of cast iron, would afford the requisite security. 
 Within the palisades, a number of work-houses ought to be erected, 
 proportioned to the numbers of convicts expected to be confined in 
 one establishment. These work-houses ought to be so contrived as 
 to confine the prisoners in separate classes, according to iheir different 
 tempers and habits, and no intercourse ought to be allowed between 
 the different classes. 
 
 As a general rule, the kind of labour required, ought to be that of 
 which the value can be easily determined by quantity or measurement, 
 or what is called task -work. 
 
 Convicts, on arriving at a penitentiary, ought to be convinced, that 
 they cannot escape by their own exertions, and that, except an allow- 
 ance of bread and water sufficient to sustain life, without abridging its 
 duration, all their comforts will, in health, depend on the productive 
 value of their labour, and on their peaceable and regular deportment •. 
 but I think that no person ought to be divested of the hope of enlarge^ 
 ment, by a sentence of imprisonment during life, especially for a first 
 or second offence. 
 
 The arrangements for exacting the labours required, ought to be 
 such as would allow it to be performed with convenience and advan- 
 tage ; but the supplies of subsistence, clothing, and materials of every 
 kind, ought to be furnished by a public contract, with such suitable 
 person, as would give security to receive the avails on the best terms. 
 
 I am satisfied that regulations founded on these principles, would, 
 in a short time, reduce the public charges to the expenditures required 
 for the support of buildings, an armed guard, and perhaps tools and 
 implements of labour, besides stated compensations for medical relief, 
 religious instruction, and salaries to a board of inspectors, as a protec- 
 tion to the convicts against wanton cruelty and oppression. 
 
 I have the honor to be, very respectfully, 
 Your obedient servant. 
 
 OLIVER WOLCOTT. 
 
 Tlie hon. Cadwalladek D. Golden. 
 
30 
 
 From MARTIN SHELDON, Esq. to Governor Wolcotl. 
 
 Granby, Nov. 27, 1820. 
 
 SIR, 
 
 In obedience to the request of your Excellency, communicated fo' 
 us by letter of the 26th September last, relating to New-Gate prison, 
 we have endeavoured to collect such information upon the several 
 heads contained in that letter, as, we hope, will meet the wishes of your 
 Excellency, and answer the object in view. We regret, that by reason 
 of some unavoidable hindrances, our reply has been so long delayed. 
 
 About the year 1700, a company of miners, from Germany, open- 
 ed the mines, called the Copper Mines, then belonging to Simsbury, 
 now Granby. The excavation, made by raising copper ore, is about 
 one hundred feet in length, varying in width from ten to fifty feet, 
 and in height from five to fourteen feet. Toward the close of the 
 Revolutionary war, about the year 1 778, the state began to make use 
 of this cavern for the ronfinenient of convicts. By an act of the le- 
 gislature, passed in May, 1790, "the cavern in the copper mines in 
 Granby," was constituted and made a public gaol and work-house, by 
 the name of New-Gate Prison. A sum of money (about seven hun- 
 dred pounds) was granted, to defray the expenses of erecting the ne- 
 cessary buildings and wall. In December, 1790, the work was accom- 
 plished, and eight convicts received from the county gaols. Since 
 that time, to the present, including those committed in December, 
 1790, the number of convicts annually committed is as follows, viz: — 
 
 In 1790 . . 
 
 8 
 
 In 1800 . 
 
 . 11 
 
 In 1810 . 
 
 . 25 
 
 1791 . . 
 
 11 
 
 1801 . 
 
 . 11 
 
 1811 . 
 
 . 18 
 
 1792 . . 
 
 6 
 
 1802 . 
 
 . 17 
 
 1812 . 
 
 , 18 
 
 1793 . , 
 
 11 
 
 1803 . 
 
 . 14 
 
 1813 . 
 
 . 9 
 
 1794 . . 
 
 12 
 
 1804 . 
 
 . 12 
 
 1814 . 
 
 . 19 
 
 1795 . . 
 
 12 
 
 1805 . 
 
 . 15 
 
 1815 . 
 
 . 16 
 
 1796 . . 
 
 2 
 
 1806 . 
 
 . 19 
 
 1816 . 
 
 . 23 
 
 1797 . . 
 
 6 
 
 1807 . 
 
 . 14 
 
 1817 . 
 
 . 32 
 
 1798 . . 
 
 10 
 
 1808 . 
 
 . 17 
 
 1818 . 
 
 . 24 
 
 1799 . . 
 
 6 
 
 1809 . 
 
 . 21 
 
 1819 . 
 
 . 21 
 
 1820 . . 31 
 
 Total, 471 
 The whole number in prison, at various given times, from ISlO to 
 
81 
 
 1820, has been from 45 to 77. The crimes of which they have been 
 convicted, were generally, burglary, horse-stealing, arson, counterfeit- 
 ing, and passing counterfeit money, attempts to commit »ape, forgery, 
 and, in a few instances, high crimes and misdemeanors. The time 
 of confinement has been, for the first offence, generally from eighteen 
 months to three years, and, upon a second conviction, double the 
 time. In few instances, not exceeding one to each year, since the 
 institution of New-Gate, have there been sentences for life. 
 
 By a late statute, the overseers of the prison are authorised, at the 
 expiration of the time for which the prisoner is sentenced for confine- 
 ment and labour, to take his note, with the best security he is able to 
 procure, for the payment of the costs of the prosecution, and discharge 
 him. 
 
 The effect of imprisonment on morals and manners, as far as has 
 come within the knowledge of the overseers, has been good. In seve- 
 ral instances, those who have suffered the punishment of New-Gate 
 imprisonment, for their crimes, have turned to a better course of life, 
 and by their regular conduct and conversation, have evinced a reforma- 
 tion, and become industrious and useful citizens. 
 
 Respecting the mode of treatment, the prisoners are put to labour, 
 in the day time, the usual hours of other labourers Their employ- 
 ment, until 1817, was confined principally, to manufacturing wrought 
 nails. Since that time, various other employments have been intro- 
 duced, such as smith-work, boot and shoe-making, coopering, wagcjon 
 and plough-making, basket-making, and other light work. Their winter 
 clothing consists of home-made woollen cloth. In summer, they wear 
 frocks and pantaloons of tow cloth. They sleep in straw bunks, with 
 woollen blankets for covering. Their fare consists of daily rations ; 
 each ration consisting of one pound of good beef or three quarters of 
 a pound of pork, one pound of rye flour, two and an half pounds po- 
 tatoes, or three gills of peas or beans, and one pint of cider. 
 
 The prisoners are secured by a guard — some of the more daring 
 and hardened are lightly shackled with small chains. 
 
 As to the government of New-Gate prison, three overseers are an- 
 nually appointed by the legislature. The overseers annually appoint 
 the master or keeper of the prison, who annually enlists his guard, 
 which now consists of one sergeant, two corporals and 17 privates. 
 , The keeper is allowed a salary of 550 dollars annually. The wa- 
 
32 
 
 ges of the guard, by the present allowance, are, per month, for thp 
 serfeant, 67; for the corporals, $1 1 33; and for the privates, 
 ^lO each, toajether with rations. In addition to which, the guard also 
 receive a suit of clothes annually, consisting of a coat, vest, and pan- 
 taloons, of home-made woollen cloth, and two dollars each, in lieu 
 summer clothing. 
 
 The government of the prison is further regulated by a code of rui< 
 and bye-laws, made by the overseers, in pursuance of the 6th and 7i!i 
 sections of the statutes passed in May and October, 1790. 
 I am respectfully. 
 
 Your obedient servant. 
 
 MARTIN SHELDON, • 
 One of the Overseers of New-Gate Prison. 
 
 Summary of the Regulations and Bye Laws for the government o^l 
 New-Gate Prison, revised by the Overseers, A. D. 1819. 
 
 The prisoners are to be taken from their lodging rooms, each day, 
 (Sumlays and public days excepted,) at sun-rise, and to be kept at 
 labour through the day, at such business as the overseers and keeper 
 direct, and at the close of the day, be returned to their rooms. They 
 shall be required to perform a reasonable day's labour, in that branch 
 of business of which they have acquired a competent knowledge, un- 
 less prevented by sickness or infirmity. 
 
 Any prisoner who shall fail or refuse to perform the labour requi- 
 red of him, in a workmanlike manner, or shall disobey any orders, 
 shall be punished, by a reduction of his allowance of provisions, by 
 whipping, not exceeding ten stripes for one offence, or by constant con- 
 finement, in the caverns, until he perform the duty required of him. I 
 
 The keeper is empowered to put shackles on any prisoner, if he 
 deem it necessary for the safe-keeping of the prisoner, or the safetyi 
 of the prison. - j 
 
 Any prisoner who shall cut his irons — or who shall make, conceal, 
 or keep with his person any instrument to be used for that purpose, oi, 
 for the purpose of breaking the prison — or who shall injure the prison 
 or work-shops, in attempting his escape — or shall keep or conceal any' 
 instrument whh which he may injure any other prisoner or person— | 
 or shall insult or abuse the keeper, officers or guard — or shall quarrel I 
 with any other prisoner — or be guilty of stealing — or shall speak U ' 
 
 1 
 
83 
 
 or converse by writing, with strangers, or with his friends, without per- 
 mission from the keeper, shall be punished as before mentioned. 
 
 The keeper, at his discretion, may furnish the prisoners, who are 
 the most diligent, faithful and obedient, with ardent spirits occasion- 
 ally, and with a sufficient allowance of the best provisions in his pos- 
 session. 
 
 The pard are prohibited from inflicting arijr punishment on a 
 soner, without the direction of the keeper — and, by proper relieves, 
 are to keep watch over the prison, by day and by night. 
 
 Strangers who visit the prison, are prohibited from having any con- 
 versation with them, or trade or traffic with them, or making any pre- 
 sent to them, without the permission of the keeper. 
 
 The keeper may, at his discretion, permit or refuse permission, to 
 str^mgers, to examine the caverns. 
 
 From the Honorable JAMES GOULD, to the Committee. 
 
 Litchfield, Oct. 10, 1820. 
 
 GENTLEiMEN, 
 
 I feel myself bound to apologize for my delay, in replying to the 
 inquiries, which I have lately had the honour of receiving from you, 
 in relation to "the results and tendency of the Penitentiary System."' 
 This delay has been occasioned by your circular's having arrived 
 during my absence, for several weeks, from home, and of constant 
 and urgent engagements since my return. 
 
 Upon a subject so deeply interesting to the world, as that to which 
 your inquiries relate, I greatly regret the necessity I am under, of ac- 
 knowledging, that I am almost entirely uninformed. It is, eminently, 
 one of those subjects, upon which the only safe rule of judging is to 
 be deduced, principally, at least, from the details of experimental in- 
 formation, of wiiich, I am sorry to say, I have none : and, as a matter 
 of speculative investigation, it has lain very much out of the range of 
 my inquiries. 
 
 With this avowal, it would, periiaps, be most proper for me to 
 close, I take the liberty, however, to add, that from the few and par- 
 tial practical results, with which I have occasionally been made ac- 
 quainted, by report, I have been led very strongly to doubt, whether 
 the Penitentiary System will be found adapted to the ends proposed to be 
 attained by it. So far as my limited means of information have led me 
 
 E 
 
84 
 
 .(o turai any judgment at all, upon the general question, my prevailinf 
 apprehension, I am constrained to acknowledge, has been, that the 
 >ystem must ultimately fail, for want of sufficient penal terrors, in its 
 sanctions. I have been in the habit of believing, that the most effica- 
 cious mode of preventing or checking, crimes— if not the only one of 
 any extensive efficacy — is, to deter men from the commission of them. 
 .And, though the moral certainty of punishment, as a consequence of 
 conviction, is, undoubtedly, essential to this end; yet this certainty 
 alone — abstracted from the nature and degree of the punishment per- 
 . scribed — will not, I suspect, be found sufficient. Penal laws, to be 
 effectual, must be addressed, and addressed powerfully, to the fears 
 of men. For, as temptations to the commission of crimes are strong, 
 it would seem, that the checks intended to restrain them, should be 
 proportionably so. In this particular, I fear, the Penitentiary System 
 will be found radically defective. 
 
 It is, confessedly, most desirable, that the sanctions of criminal law 
 should be made to operate, (so far as a paramount necessity may not 
 forbid it,) as the means of reforming offenders. Whether such a sys- 
 tem may be practicable, or not, is to be ultimately ascertained, I am 
 aware, by the results of experiment, if at all And whether the ex- 
 periment has, or has not, been fulfy and fairly made, already, I am 
 ill-qualified to judge. I am very apprehensive, however, that it never 
 can be rendered successful, to any considerable extent. Among con- 
 victs, the average number of subjects, upon whom the ordinary and 
 proper motives to reformation, would be likely to exert any salutary 
 and permanent influence, will always, I suspect, be, comparatively, 
 very small: and, unless those who would be most open to the influ- 
 ence of such motives, could be distinguished, with certainty, before- 
 hajid, from their more incorrigible fellow-convicts, and eflectually 
 separated from them ; that number would, in all probability, be con- 
 stantly diminishing. Within my own very limited experience, 1 have 
 not known an instance, in which it could be said, ivith certainty, or 
 with reasonable confidence, that reformation had been produced, by 
 any punishment, severe or mild. And the impediments to success, in 
 such a jilan for reforming offenders, are, in my view, so numerous and 
 so formidable, that I entertain but little hope of its proving effectual. 
 Even if the scheme should prove successful, in a greater proportion 
 of individual cases, than, I believe, can be rationally expected : I 
 still, the very means, by which alone any gemnne and lasting re- J 
 
35 
 
 formation must be effected, if effected at all, would tend, (if not di- 
 rectly to encourage the commission of crimes in others,) at least to di- 
 minish, in a dangerous degree, their fears of the consequences of 
 transgression. Indeed, however revolting to a humane mind, ihr 
 conclusion may and must be, I am constrained to say, that the pre- 
 sent Penitentiary System, in our country, must, I fear, at no distant 
 period, be abandoned, and a severer criminal code adopted in its 
 place. 
 
 These suggestions, being almost exclusively theoretical, and very 
 general, might, perhaps, have more properly been spared. But I did 
 not know that I could better manifest my respect for the Committee, 
 or my desire to comply, so far as I might be able, with their request, 
 than by communicating my general impressions on the subject, how- 
 ever vague and crude they might be. If they should be found, as per- 
 haps they may be, wholly incorrect, I should, for humanity's sake, 
 sincerely rejoice in abandoning them myself, and in seeing them re- 
 jected, in the penal codes of all nations. 
 
 If a more rigorous criminal code should be found necessarj', the 
 question— WTiat shall that code be, and what sanctions shall be pre- 
 scribed ? — would open a field of inquiry, which I feel myself not 
 qualified to enter, and require a course of detail, which my limited 
 acquaintance with the subject would not enable me to pursue. This 
 consideration must also be my apology for not attempting to answer, 
 specifically, your more particular inquiries. 
 
 I am, Gentlemen, 
 
 with the greatest esteem, 
 Your obedient servant, 
 
 JAMES GOULD 
 
 Messrs. C. D. Golden, 
 P. A. Jay, 
 
 J. MlLNOR, 
 
 T. Eddy, 
 C. G. Haines. 
 
36 
 
 MARYLAND. 
 
 tetter from DANIEL RAYMOND, Esq. Counsellor at Law, to the 
 Committee. 
 
 Baltimore, Jan. 13,1821. 
 
 GENTLEMEN, 
 
 I had the honor to receive, a few days since, a circular from yoii, 
 informing me, that you " had been appointed a Committee to prepare 
 a general Report on the results and tendency of the Penitentiary Sys- 
 tem," and requesting, from me, an answer to certain inquiries contain- 
 ed in your circular. 
 
 I duly appreciate the honour you have conferred upon me, and only 
 regret my inability to assist you in your labours upon this interesting 
 and important subject. But, although my observations, and reflections, 
 can he of very Uttle service to you, in your inquiries, still, as they have 
 been requested, I shall not decline giving them. 
 
 I have never investigated the subject with a view to form a reg- 
 ular treatise upon it, my observations will, I fear, be crude ; but as I 
 addressing gentleman who are in no danger of being improperly in- 
 fluenced by my immature reflections ; and who will, at the same time, 
 duly appreciate my motives, and make everj' allowance for my want of 
 experience and opportunity, whatever may be the demerit of my pro- 
 duction, I shall freel}' give you the result of my reflections and obser- 
 vations upon the different points proposed for consideration, knowing 
 that you cannot expect me to throw much light upon a subject, which 
 has bafiled the efforts of the most powerful minds. 
 
 I will here premise, that I have only that general knowledge of tlie 
 Penitentiary System which is to be derived from our statute books— 
 from occasionally attending courts of criminal jurisdiction, and the ge- 
 neral acoounts of the system, sometimes given in our public journals. 
 It will not, therefore, be in my power, to give you any minute detail of 
 facts, and, as my experience does not extend to a period anterior to the 
 estabhshment of the System, I cannot speak of its advantages, in com- 
 parison with the system of punishment which prevailed prior to its es- 
 tablishment. 
 
 As to the second inquiry, I would observe, that the ends, or object of 
 the Penitentiary System of punishment, I understand to be, the preven- 
 tion of crimes, and the reformation of criminals. One, or both of these, 
 is the object of every penal code. Besides these, there was, perhaps, a 
 
37 
 
 desire to ameliorate tbe seventy of the existiag laws, and to lessen the 
 expense of the sUte ; but these objects must always be subordinate to 
 the main objects of prevention and reformation, and therefore, can ne-i 
 ver be pursued in derogation of the main objects. There can, I be- 
 lieve, be little doubt but that the Penitentiary System has utterly 
 failed, both, to prevent crimes and to reform criminals. Of this, eve- 
 ry Penitentiary in the country affords lamentable proof. 
 
 To what then, is this failure to be attributed .'' This is a much more 
 difficult question to answer ; and in order to answer it satisfactorily, it 
 will be necessary to investigate some of the principles of human nature. 
 — The character of the different classes of the community ; — the mo- 
 tives of human action ;— cuid the nature and effect of different punish* 
 ments upon different characters. 
 
 Men are rational beings, and their universal pursuit is happiness. 
 This may be laid down as a universal principle, equally applicabl e to 
 every class of mankind. Men have different capacities and different 
 ideas of what will contribute to their happiness ; but it is as true of the 
 petty felon, as of the commander of an array, or the ruler of an empire, 
 that he never chooses, what in his estimation b a lesser, in preference 
 to a greater good. Different men, will act differently in the same cir- 
 cumstances, from their different motives of what will contribute to their 
 happiness, but none of them ever act deliberately, upon the principle 
 ut'choosing what, in their estimation, is a lesser, in preference to a 
 greater good. The martyr who is burnt at the stake, considers the ut- 
 most extremity of corporal suffering, a lesser evil, than a dereliction of 
 principle ; and the petty felon, who robs a hen-roost, acts upon that 
 universal principle of human nature, of choosing what, according to his 
 notions and feelings, is the greater, instead of the lesser good. 
 
 This principle b entirely distinct from, and perfectly consistent with, 
 man's moral obligation, and his accountability for crimes ; for, although, 
 the desire, and the pursuit of happiness, is universal, yet the motives 
 which actuate different men in the pursuit of it, are as different as the 
 moral characters of men, and as widely diversified as those sublime 
 principles and feelings, which govern the conduct of the martyr, and 
 those base ones which actuate the pick-pocket, and the swindler; and 
 it is upon the motives of men in tbe ptirsuit of happiness, that penal laws 
 are designed to operate. 
 
88 
 
 ^? It is notorious that men never commit crimes when they know those 
 are watching, who will detect, apprehend, and punish them. This 
 single fact shows, that by a perfect system of government, men may be 
 prevented from committing crimes against society, and it also shows, 
 that this perfect sj'steni of government consists in the certainty of de» 
 tection and punishment. 
 
 I assume it then, as a general principle, that men would not violate 
 thr l3w, if they knew to a certainty that immediate detection and pun- 
 ishtnent would follow. To this general principle, I admit there are 
 some exceptions. A man in a violent gust of passion may commit 
 homicide, although he may be certain that his own life will be the im- 
 mediate forfeiture ; and there may be other passions, equally violent 
 and uncontrolable ; but these are exceptions to the general rule, and 
 should not therefore be made the basis of a code of penal laws. 
 
 If, then, certainty of detection and punishment is a sure prevention 
 of crimes, this principle should be made the basis of a penal code, and 
 the c'reat object should be to carry this principle to the greatest possi- 
 ble degree of perfection ; and in proportion as it approximates to perfec- 
 tion, in this respect, in the same proportion will it restram the commis- 
 sion of crimes. — There must not only be certainty of detection, but 
 certainty of punishment also, which, under the present system, is far 
 from being the case with a large portion of those whom the law profes- 
 ses to punish In affixing a penalty to different crimes, regard should 
 be had to the characters of the different classes of society, who are like- 
 ly to be most affected by them ; and to the different kinds of punish- 
 ment which may be inflicted with the fairest prospect of producing the 
 desired effect. One great defect of the present Penitentiary System, 
 consists in the indiscriminate application of the same punishment to all 
 classes of persons, which, from the great diversity of character, causes, 
 in reality, very great inequality in the punishment. That which is the 
 severest punishment to one man, may be none at all to another, and 
 that which we call punishment, is often, in point of fact, either none 
 at all, or very trifling, which is, in reality the case with a large propor- 
 tion of the tenants of our Penitentiaries. Our Penitentiaries are, in fact, 
 nstead of being places of punishment, mere workshops and schools of vice, 
 where those who long inhabit them, not only lose all sense of moral ob- 
 ligation, and all those habits, without which, no man can be supposed 
 capable of procuring an honest livelihood, but also, where they become 
 
39 
 
 adepts in every species of vice and crime. A Penitentiary will never 
 answer the objects of its establishment, until it is made a place of real 
 punishment to those who are sentenced to confinement in it, and it is 
 but a mockery of justice, to shut up those criminals in Penitentiaries, 
 to whom they have no terrors, and who, in reality, enjoy as much hap- 
 piness while undergoing this pretended punishment, as they are accus- 
 tomed to enjoy when at large in the world. In my opinion, there is 
 nothing in which the Penitentiary System is more defective, than in the 
 iojudicious application of punishment. I am aware that the laws must 
 be equal, and apply to all classes of society, and that no discretionary 
 power can be lodged with the court, or with any other tribunal to ap- 
 ply different punishments, according to the different characters ( f the 
 dehnquents. All persons, who shall be guilty of the same crimes, must 
 be subjected to the same punishment ; still this will not prevent a much 
 more appropriate and judicious application of punishment, than is at 
 present inflicted. 
 
 Certain crimes generally prevail among certain classes of society, 
 and the punishment of those crimes may be made applicable to those 
 particular classes of people, among whom, the crimes are most preva- 
 lent, and who will be most sensibly affected by the punishment. 
 
 The gi;eat object of punishment, although not the ostensible one, is 
 to deter others from committing similar offences. Different classes of 
 society are to be operated upon, and deterred from violating the law, by 
 those kinds of punishments, which they most dread ; and although it is 
 to be hoped, that there is a large portion of every community, whose 
 sense of religious and moral duty, is sufficiently strong to prevent them 
 from violating any known law, even though there should be no penalty 
 or disgrace attached to the violation, and for whom, therefore, the ter- 
 rors of a penal code are entirely unnecessary, yet, unfortunately, there 
 is a very large class in every community, whose sense of moral and re- 
 ligious duty is not sufficiently strong to prevent them from the commis- 
 sion of crimes independently of the feai- of punishment and disgrace. 
 This class, it is to be feared, is much more numerous than charity would 
 lead us to suppose, and is to be found in every rank and grade in life. 
 A large portion, however, who have not a sufficient sense of moral du- 
 ty to restrain thtm from the commission of crimes against society, have 
 nevertheless, sufficient regard to character, to restrain them, independent- 
 lj[_of _the fear of actual punishment. To this class,idisgrace is a severer 
 
40 
 
 punishment than the actual suffering from confinement in a Penitentia- j 
 l-y. There is no doubt many a man who has not moral principle | 
 enoue;h to restrain him from the commission of crimes, who would soon- ' 
 er suffer five years confinement in a Penitentiary, provided it could be j 
 endured in perfect secrecy, than have his name published in a newspa- | 
 per, as having been guilty of the crime for which he was to suffer. Men | 
 of this description are seldom guilty of the more mean and petty offen- 
 ces — they seldom pilfer and steal. There are grades of crimes as well j 
 as grades of men, and one grade of men will not ordinarily be guilty of I 
 those crimes most common among a grade of people whom they con*- 
 Sider beneath them. This regard to character, should be fostered, and 
 made a medium of punishment, by the government; and a very effec- 
 tual method of punishing men in the higher grades of society, is by mak- 
 ing their crimes as public as possible. The lowest class of society Is 
 almost entirely insensible to disgrace, and to them a Penitentiary is no 
 farther a terror, than as it inflicts actual suffering. To people of this 
 description, confinement in our Penitentiaries is, in fact , little or no 
 punishment, and these are the people who commit the greatest number 
 of crimes, if not crimes the most aggravated in their nature, and it is 
 by persons of this description, that our Penitentiaries are most tenanted. 
 There is no method of punishing people who are insensible to the loss 
 of character, but by the infliction of corporal suffering. Those who 
 propose to punish ther> by confinement in a Penitentiary, evince great 
 ignorance of human nature. They enjoy, during their confinement, all 
 the necessaries of life, and ordinarily as great, or even a greater share 
 of the comforts also, than they have been accustomed to, and probably 
 even a greater share, than they would be capable of procuring for them- 
 selves, if at liberty ; and it is a notorious fact, that many of them would 
 as soon be in the Penitentiary as out of it, and it is by no means an un- 
 usual thing for those who have been discharged from a Penitentiary, to 
 commit a crime for the express purpose of being sent there again. It 
 is but a mockery of justice to pretend to punish such people by con- 
 finement in a Penitentiary. 
 
 Our Penal Codes and Penitentiary Systems, throughout, exhibit th* 
 most lamentable disregard to all the principles of human nature ; so 
 much so, that a man thoroughly acquainted with those principles, 
 would scarcely be able to infer from an examination of a Penitentiary, 
 tliat it was designed for the punishment of criminals ; certain it is, hi 
 
41 
 
 never would suspect that it was designed as a place of penitence and 
 reformation. A legislator is but ill qualified for his responsible office, 
 who is ignorant of the principles of man's nature, and he must faitli- 
 Ussly discharge the duties of that office, when, in forming a penal code, 
 he disregards those principles. 
 
 The human mind possesses wonderful elasticity and facility in ac- 
 commodating itself to existing circumstances. If this was not the case, 
 we siiould be much more wretched beings than we are. The walls of 
 a Penitentiary do not change human nature, and a man will as soon 
 accommodate himself to the deprivation of liberty, as to any other mis- 
 fortune or calamity. How soon do the most sensitive of our species, 
 recover from the calamitous dispensations of divine providence, as well 
 as from the ordinary misfortunes of life ! We daily see persons suffer- 
 ing the most poignant and inconsolable affliction, for some sudden and 
 irreparable calamity ; but the mind soon accommodates itself to this new 
 state of things, and we see them in a few days, or a short time, recover 
 their wonted cheerfulness and gaiety. The same principle applies to, 
 and governs the subjects of legal punishment, and a person, who, on be- 
 ing sentenced to a Penitentiary, may endure the most excrutiating men- 
 tal suffering, in the course of a very short period, becomes accustomed 
 to this new condition — the mind recovers its wonted tone, and the Pen- 
 itentiary is, in reality, no longer a place of punishment ; and I very lit- 
 tle doubt, but that the convicts of a Penitentiary enjoy, ordinarily, as 
 great a share of happiness, after having been there lone enough for the 
 mind to accommodate itself to this new state of things, as they were ac- 
 customed to enjoy, when at large ; so that the object of the Penitentia- 
 ry, so far as it regards punishment, is almost entirely defeated by its 
 injudicious regulation and management, and in other respects, as will 
 presently be shown, much worse than defeated. 
 
 A Penitentiary System has a two fold object — punishment, and re- 
 formation. — The former object, is entirely defeated, whenever confine- 
 ment in a Penitentiary, ceases, from whatever cause, to be a punish- 
 ment ; so that, if a man is sentenced to the Penitentiary for ten years, 
 and after remaining there three months, becomes so accustomed to it, 
 as to enjoy an ordinary share of happiness, confinement for the re- 
 maining nine years and nine months, is, in reality, without any efTect 
 i whatever, in accomplishing this object, and a mere mockery of punish- 
 ment. 
 
 F 
 
Experience also proves, that this confinement is wholly ineflectual 
 ill reforming the convict. What we call a Penitentiary, is, in fact, a 
 misnomer, and our work-houses, tiius denominated, ought never to have 
 received such an appellation. Experience has abundantly proved, that 
 penitence is never the result of confinement in our Penitentiaries, and I 
 maintain, that according to the known laws of the human mind, it is 
 impossible that they should work penitence and reformation, or, at any 
 rate, that this cannot be their tendency, and if they ever have tiiis ef- 
 fect, it is not their natural effect, but merely an exception to the gene- 
 ral rule. I do not say that our Penitentiaries cannot be so improved 
 as to be, in reality, what they purport to be : but if they are ever so impro- 
 ved, it will be done by adapting them to our nature, and by causing them 
 to operate on the human mind in a different manner from what they 
 now do. At present, they are mere work-houses, and according to my 
 notions of human nature, a work-house and a Penitentiary, are alto- 
 gether incompatible. The two are founded upon distinct principles, 
 which are in opposition to each other ; or at any rate, so far in opposi- 
 tion, that they never can be reconciled, or made to unite. 
 
 Let us examine a little into some of the laws of the human mind, as 
 we see them daily exhibited in the world, arid let it be recollected, that 
 these principles are not changed by confinement within the walls of a 
 prison. Suppose a man is suffering under some mental dejection and 
 oppression, I care not from what cause, whether it be some dispensa- 
 tion of providence, conviction of sin, or some worldly loss; what 
 remedy would any discreet man propose, as most likely to relieve him ? 
 Employment, exclaims every man, as soon as the question is proposed. 
 If you can get such a man into a work-shop, I care not how, and busi- 
 ly employed for twelve hours in a day at, I care not what, I venture to 
 say, that in ninety-nine cases in a hundred, a complete cure will be ef- 
 fected, and the patient probably be made perfectly happy, or at least, 
 as happy as from the constitution of their minds, they are capable of 
 being. Mental suffering then, and laborious employment, are, if no) 
 entirely, at least to a very great extent, incompatible, and irreconcila- 
 ble, and yet all our Penitentiary Systems, are predicated upon the 
 compatibility of these two principles of human nature. The System 
 proposes, as a principal object, mental suffering, penitence, and refer 
 mation, and attempts to accomplish this object by compelling the en 
 minal to go immediately to hard labour, the best and most effectun 
 method of preventing mental suffering, penitence, and reformation. 
 
43 
 
 Our lawgivers seem to suppose, that labour is, in itself, a punish- 
 ment, as if they were ignorant that labour is the common lot of man by 
 the express sentence of God himself. I cannot, myself, well imagine 
 a greater absurdity, than to think to punish a man by compelling him 
 to labour. 
 
 The reason why a Penitentiary, upon the present plan, defeats the 
 very object of a Penitentiary, is not less obvious, than the fact of its 
 producing this effect. The human mind is not capable of attending to 
 two things at the same time. Employment, in any mechanic or manu- 
 al occupation whatever, engrosses the whole attention, and of course, 
 drives away all other reflections, and a man employed in making a 
 pair of shoes in a Penitential y, very soon forgets that he is in a Peni- 
 tentiary, and ordinarily, is no doubt quite as happy as he would be any 
 where else in the same employment. When his day's work is done, 
 he is fatigued it is true, but this is not an evil or a punishment, and even 
 if it was, he is not more fatigued than the same labour would have made 
 him any where else, nor more so than nine-tenths of the community, 
 who have committed no oflfence, and probably not more so than it 
 would have been necessary for him to be, had he committed no offence. 
 In consequence of his fatigue, he eats heartily and sleeps soundly, the 
 two greatest comforts and blessings an uneducated man can hope to 
 enjoy in this world, of labour and toil. 
 
 One principal object of the Penitentiary System then, is defeated by 
 the very ' means adopted for its accomplishment, and the only 
 punishment, a criminal suffers for his offence against society^ 
 is the disgrace of being in the Penitentiary, (which he probably 
 does not value a straw,) and the restraint upon his liberty, which, in a 
 very short time he becomes accustomed to, and totally disregards. 
 Such we know to be the case, in point of fact, from observation ; and 
 such I say we had reason to suppose would be the case, from the known 
 laws of the human mind. This is, however, rather a defect than an evil 
 in the present System ; but there are positive evils, vastly more impor- 
 tant than all these mere defects. 
 
 Man we know is a creature of habit. He has been called a bundle 
 of hMts. These habits are easily formed at all periods of his life, and 
 when formed, they are not easily changed. The only difficulty in 
 I forming a habit, is the pre-exisience of a habit inconsistent with the ha- 
 j bit wished to be formed. We know, also, that the strongest minds 
 
44 
 
 can with diffirulty withstand the shocii of sudden changes, and it has 
 often been said tliat tiic human mind is much more liable to be discon- 
 certed and thrown from its proper equipoise, by sudden good than by 
 sudden bad fortune. A long habit of restraint, disqualifies a man to 
 act without the restraint. Let these laws of the human mind be ap- 
 plied to the tenants of our Penitentiaries, and see what the consequen- 
 ces will be. A man has been confined in a Penitentiary five or ten 
 years. — His will has, during that period, been in subjection to the will 
 of another. — He has, during that period, necessarily formed habits 
 suited to a Penitentiary, and entirely unsuited to the world, or to per- 
 sonal liberty, and these hahits, as may well be supposed, have become 
 strongly rooted. All at once, his restraints are thrown off — He is set 
 at liberty, and turned into the world to provide for himself. Instead 
 of being subject to the will of another, as he has long been accustomed 
 to be, he is left to his own will, to which he is not accustomed. Is it 
 rational to expect a man to preserve a proper equilibrium of mind un- 
 der such a shock .'' Can it be expected by any man who has any 
 knowledge of the laws of the human mind, that a man, under such cir- 
 cumstances, however good his intentions may be, can go steadily to 
 work and provide for himself? It matters not that he has lived in the 
 world before, and once knew how to provide for himself by his own 
 industry. Since, then, his mind has, according to the laws of nature, 
 accommodated itself to a different state of things, he has formed new 
 habits inconsistent with his present condition, and forgotten how to be 
 free ; and yet he is required to be free, and to conduct himself with 
 the prudence and discretion of a free man — in other words, he is re- 
 quired to act in direct violation of every known law of the human mind. 
 Is it not far more rational to expect, that such a man will immediately 
 return to the paths of vice, and again become the tenant of a Penilen. 
 tiary? Under such a state of things, is it surprising that crimes in- 
 crease in proportion as our Penitentiaries empty out their tenants upoi 
 the community Is it surprising that our Penitentiaries are .'5o man \ 
 mansions of vice and crime ? We see this same principle operating 
 throughout this part of the country, and producing the same effect in 
 regard tojnanumitted slaves, and there is also the same mental blind- 
 ness to the law of man's nature, which ^produces the effect. A man 
 has a large number of healthy, industrious, moral slaves, of different 
 ages, from twenty-one, to A^rty-fivc. On his death bed, he sets them 
 
45 
 
 all free, with the most solemn exhortations to be industrious and mor- 
 al, and receives from them the most solemn promises of obedience He 
 gives them his blessing, and dies. In the course of a short time, nine 
 out of ten of these slaves, so industrious and moral before, become vag- 
 abonds, and one half of them perhaps, get into the Penitentiary, and all 
 the neighborhood immediately and perpetually exclaim, " see the ef- 
 fects of manumission ! The blacks are not capable of being free, and 
 providing for themselves. — They are an inferior order of beings, and 
 fit only to be slaves !" And this they will maintain in opposition to 
 reason and authority, although they see a multitude of instances, of 
 blacks, who have been born free, and educated with the expectation of 
 being free, who make as industrious, sober, good citizens, as any in the 
 country. 
 
 Although every man is sensible of the force of habit, from his own 
 experience, yet we are all too apt to overlook it, or make no allowance 
 for it in others ; and our legislators, in forming our penal codes, seem 
 never to have reflected that there was any such thing as habit ; but to 
 liave considered man's will to be, under all circumstances, equally free 
 to do right or wrong, and that no greater effort is required for a man, 
 whose will has been in subjection to another for ten years, to go volun- 
 tarily to work and provide for himself, than if, during that period, he had 
 been free and voluntarily industrious. But, in my humble judgment, 
 it is as irrational to expect a man, who has been ten years confined in 
 a Penitentiary to hard labour, at once to become voluntarily industrious, 
 when free, as it would be to expect a savage of our western wilderness, 
 at once to assume the manners and habits of an industrious citizen, 
 merely on having the advantages of civilization described. From the 
 foregoing observations, I deduce the following propositions. 
 
 1st. That a man thoroughly acquainted with human nature, but un- 
 acquainted with our Penitentiary Systems, never could infer from our 
 Penitentiaries themselves, what their object was. 
 
 2d. That confinement in a Penitentiary, is no punishment at all, to 
 at least one half of those who are put there for punishment. 
 
 3d. That confinement ordinarily ceases to be a punishment to all, be- 
 fore a tenth part of their time is expired. 
 
 4th. That a long confinement in a Penitentiary, utterly disqualifies a 
 man for gaining an honest livelihood by his own voluntary industry ; 
 
4^ 
 
 and that, therelore, his only alternative, when turned out, is to steal or 
 starve. 
 
 Admitting this to be the true state of the case, and that the evils of 
 the present System are real, and not imaginary ; the next inquiry is, in 
 what way can they be remedied. This is a much more difficult branch 
 of the subject than that of pointing out the evils of an existing es- 
 tablishment. I shall, however, attempt to suggest improvements, rely- 
 ing upon your indulgence, should I not be successful. 
 
 I would, in the first place, suggest the propriety of altering the law 
 respecting children and youth, so as never to inflict either a corporal 
 or a disgraceful punishment upon such persons. Although from seven 
 to fourteen, a child may, according to the common law, be doli capax, 
 yet if they commit crimes, it is more the fault of those who have had 
 their training than their own, and there can be little doubt, but that 
 with proper instruction and government, they may be reformed. 
 When a child or youth, under sixteen or eighteen, commits a crime, 
 instead of inflicting that punishment provided for men, I would have 
 them taken from their parents and placed under the care of some good 
 master, who should instruct them, and teach them some mechanic art. 
 Our temples of justice are too often profaned by arraigning children 
 and youth, convicting and punishing them as men. In forming a 
 Penal Code, the great object should be to adapt the punishment to the 
 laws of the human mind in such a manner as to produce the desired 
 efiect, with the smallest quantity of sufiering. We must not, however, 
 from false notions of humanity, stop short of producing the desired 
 effect ; for, in that case, the punishment inflicted becomes wanton 
 cruelty. As far as practicable, a punishment should be provided to 
 suit the character of every criminal. In a perfect system of punish- 
 ment, the penalty would be applied to the personal character of the 
 ofiender, and not to the offence or specific crime committed. In this 
 way, infinite wisdom would punish guilt. But such a system can 
 never be adopted by short-sighted man. Human laws must be gene- 
 ral and equal, as it regards the specific crime, without respect to the 
 character of the criminal. But altheugh penal laws must regard the 
 crime committed, without reference to the personal character of the 
 offender ; still there remains great latitude to adapt the punishment to 
 the character of the criminal, by observing the character of those who 
 usually commit certain oflences, and providing a punishment suited to 
 
47 
 
 the character of that class of persons. We find, for instance, that 
 persons who usually commit petty larceny, and the other minor and 
 meaner ofTences, are totally insensible, or nearly so, to the loss of cha- 
 racter, and are inaccessible by any other means than corporal punish- 
 ment. For these offences, therefore, I would provide a punishment 
 suited to the character of such persons, and if other characters com- 
 mitted these offences, they must take the consequences, and suffer the 
 punishment. I would therefore rebuild the whipping-post and pillory, 
 for these offences, or, what is the same thing, for this class of people. 
 The puuishment is then soon over, without expense or trouble to the 
 stale, and in a manner much more likely both to work reformation, 
 and serve as a terror to others, than that of confining them in a peni- 
 tentiary, which to such persons, is often neither a punishment nor a 
 terror, but rather a school of vice. This corporal punishment would, 
 besides, have the effect to stamp a character of meanness upon these 
 offences, (the most numerous that are committed,) which would cause 
 even villains to despise and disdain to commit them, for rogues have 
 their laws of honour and notions of dignity. There is no occasion to 
 inflict corporal punishment with a degree of shocking severity, which 
 shall excite the commiseration of the beholder<». To mangle a man's 
 body with a lash is wanton cruelty — not wholesome punishment. Al- 
 though I never saw the lash or the bastinado inflicted, yet from the 
 accounts I have heard and read, 1 presume the bastinado never excites 
 those feelings of disgust and horror, that a severe whipping does. 
 Certain I am, however, that severe corporal punishment may be in* 
 flicted without mangling the body, but whether the lash is the most 
 suitable instrument, I am not prepared to say. If these persons re- 
 peated their offenses, and were found incorrigible, I would rank them 
 among a higher grade of criminals, to bejtreated as hereafter described. 
 
 The next class of persons for whom I would provide punishment, 
 are those, who, although they have not moral principle enough to re- 
 strain them from the commission of crimes, have, nevertheless, some 
 regard to character, and are liable to disgrace. Such are violators of 
 public trust, house-breakers, cheats, swindlers, counterfeiters, horse- 
 thieves, &c. kc. This class of criminals are usually from the higher 
 orders of society, and seldom commit petty larceny, or any of the 
 meaner crimes. These people have some regard to character, and 
 are susceptible of punishment by disgrace, and it is not therefore ne- 
 cessary to rely alone on corporal punishment for them. They are 
 
48 
 
 also capable of being broufjlit to reflection and penitence. For them, 
 therefore, I would provide a Peuilentiary, in the true sense^.of the 
 word — not a work-shop, but a real Penitentiary. In it the cheerful 
 sound of the hammer of industry should never be heard. The tenants 
 of it should remain in perfect idleness and solitude. They should 
 see no human being but their keeper ; unless, indeed, it might per- 
 haps be well, occasionally to expose them to public view, for the pur- 
 pose of humiliation. They should be cloathed in the garments of 
 humiliation and disgrace. They should wear chains, not only for their 
 safety, but as a badge of their character. It would be well to keep 
 them in darkness as much as possible ; but I am told a man cannot 
 endure total darkness more than about twenty days at a time, before 
 he becomes deranged. As a principal object is, to operate upon their 
 pride of character, I would have an official account of their conviction 
 as widely circulated as possible, through the public papers. This 
 should contain a description of their persons, their place of birth, 
 and parentage. To many this would be a most terrible punishment 
 — and, although it might wound the feelings of relations, yet this 
 must be endured for the public good — and it is generally the fault of 
 parents, in a great measure, that their children become criminals, and 
 they therefore deserve to bear a part of the punishment. Confine- 
 ment in this Penitentiary should never be long enough to destroy those 
 habits which are necessary to enable a man to procure a livelihood 
 by his own industry ; nor long enough for him to acquire other habits 
 incompatible with his freedom and voluntary industry. I would, 
 therefore, never have a person confined in this Penitentiary more 
 than six months, and in most cases not near so long. The principal 
 object is disgrace and humiliation, and this is as efTeclually accom- 
 plished in a month as in a year. If this class of criminals repeated 
 their crimes, and were found incorrigible, I would rank them among 
 a still higher grade of criminals, to be treated as follows : 
 
 For the third grade of criminals, I would provide a perpetual work- 
 house, somewhat upon the plan of our present Penitentiaries. I call 
 it a perpetual work-house, because I would have none sentenced to it 
 but for life. It is designed for incorrigible ottenders, for whose re- 
 formation there is no hope, and whose characters render it dangerous 
 to suffer them ever to be let loose again upon society. I would set 
 them to work to prevent them from being a burden to the state, and 
 as they are never again to be let loose upon society, it is of little nn- 
 
49 
 
 portance what habits they form, nor can there be any objection, to 
 their enjoying as much happiness as is consistent with their safety. 
 There can be no object in punishing them with idleness and solitude. 
 Into this perpetual work-house, I would in the first place, put all 
 those incorrigible offenders, who had repeated their crimes after ha- 
 ving been at the whipping post, or in the penitentiary. I would also 
 put into it persons guilty of murder in the second degree, where that 
 idle and ridiculous distinction exists — also, those guilty of arson, of 
 rape, of man-stealing, of highway robbery, of perjury, and perhaps 
 counterfeiters for the first offence. Indeed, all persons who have 
 evinced that incorrigible depravity of heart, which renders them dan- 
 gerous to society, should be sentenced to this perpetual work-house. 
 To it I would sentence none but for life ; since to confine them there 
 for a term of years and then turn them upon society, is to make them 
 felons by a regular course of discipline. It might perhaps be well 
 to make some provision for discharging them, upon condition that 
 their friends would give adequate security that they should immediate- 
 ly depart the couutry, and never return. They sh< uld be required 
 not merely to leave the state, but the country, for one state ought not 
 to banish its felons to the other states. 
 
 The last grade of crimes should be capital : and whether this should 
 include any but murder, I am in doubt. Much has been and may be 
 said on both sides of the question ; but as the arguments are faimiiar 
 to every one, it is unnecessary to repeat them. 1 am, however, deci- 
 dedly of opinion, that murder should be punished with dtath. 
 
 Among other evils of the present system, is its enormous expense, 
 and the system I have suggested, I conceive, would lessen that expense 
 at least one half. 
 
 I have thus stated, very imperfectly I fear, some of my notions of 
 the evils of our present Penitentiary Systems, and taken the liberty of 
 suggesting some alterations which to me appear well calculated to 
 improve them. I have not, probably, gone so much into detail as 
 misht be necessary for the public, but I am writing to gentlemen to 
 whom a hint is as good as a volume. 
 
 I will also take the liberty of making a few general observations 
 upon the present administration of the laws, which, in my opinion, 
 has a very bad effect upon the community. 
 
 The great object to be attained in the administration of penal laws, 
 
 G 
 
60 
 
 is certainty in the detection of criminals, and certainty in their pun- 
 islinient. The object of this certainty is not so much th*- vindirtive 
 punishment of the offender, (for that does not lessen ihf evil the com- 
 munity suffers from the crime which has been committed,) as the pre- 
 vention of others from offending. Very few would commit rimes, if 
 they knew to a certainty that they should be detected and punished. 
 Every rational being, before he deliberately commits a crime, must 
 necessarily make a calculation of the chances of escaping punishment ; 
 and therefore every criminal who escapes punishment, in whatever 
 manner, or from whatever cause, affords additional eucourageme nt to 
 others to violate the laws ; and where a large portion of those who 
 commit crimes escape punishment, as is at present the case, the temp- 
 tation and encouragement to commit crimes become very great, and 
 it is not surprising that they annually increase. 
 
 There is at present a very great laxity and carelessness in our pub 
 lie officers, especially in the middle and southern states, so far as my 
 observation has extended, in bringing criminals to justice ; and there 
 is a most deplorable disposition, I may almost say propensity, :n the 
 public, to permit criminals to escape punishment. This proceeds, 
 in some measure, from false principles of humanity. Every man 
 seems to say to himself — "true this man has committed a crime, and 
 nay deserve punishment ; but punishing him will not remedy the 
 injury ; it is a pity to bring disgrace and suffering on the innocent 
 friends of the unfortunate criminal, and it is besides an affair of the 
 public, not of mine, and 1 am not therefore required to take any pains 
 to bring him to puuishment." It is almost invariably the case. I 
 have witnessed it often, that if a criminal, at all respectable in his 
 appearance, or if he has any friends who are respectable, is arraigned 
 at the bar, the sympathies of the whole audience are immediately 
 interested in his favour, and every one is ready and willing to do eve- 
 ry thing in his power to secure him from punishment; and, if they 
 are successful, no matter how manifest the guilt of the accused, they 
 seem to exult in having rescued a victim from that inexorable tyrant 
 the law. So powerful is this feeling, and so often successful in 
 rescuing the t-uilty from punishment, that, according to my observa- 
 tion, the fart of a man's suffering a disgraceful punishment does not 
 prove that he is more guilty ihan many others who are not punished, 
 but only that he has fewer friends. 
 
 People who reason and act in this way, never reflect that every 
 
51 
 
 criminal who escapes punishment, from whatever cause, affords exam- 
 ple aad encouragement to others to commit crimes, and that a prin- 
 cipal object in punishing criminals is to deter others from offending. 
 
 Some of the facilities for escaping punishment might be easily 
 remedied, and with this view I would deprive the Governor of the 
 power of pardoning, and of granting a nolle prosequi. 1 consider 
 this power to be attended with most mischievous consequences, and 
 should be taken away entirely. In the first place, this must be a 
 most unpleasant power for an honest and a humane man to exercise. 
 In the next place, there can be no hope, in the present slate of so- 
 ciety, that it will ever be exercised with rigor or impartiality. Those 
 who have strong friends will obtain a nolle prosequi, or a pardon, be 
 their crimes small or great. Those who have not friends will never 
 obtain either the one or the other. But these are by no means the 
 worst consequences of this power. It is the anchor of hope to the 
 accused and the convict; and there is very little likelihood of peni- 
 tence or reformation, so long as there is hope of escaping punishment. 
 A single spark of hope will support a mind, which, without if, would 
 sink into contrition and repentance. It should, therefore, be a prin- 
 cipal object to extinguish every ray of hope of escape, in the mind of 
 the accused criminal, and of the convicted felon. 
 
 The powerful efforts that were made to rescue Hutton and Hull, the 
 mail robbers and murderers, from punishment, is one among a thou- 
 sand cases that might be cited to show ihe evil consequences of this 
 power of pardoning. The effects of such efforts upon the community, 
 even though unsuccessful, are most pernicious. There is nothing, in my 
 opinion, which has more influence in demoralizingsociety : itaccustoms 
 people to advocate and defend guilt, by getting their feelings enlisted 
 on the side of the guilty There were thousands of perS' ns, of both 
 sexes, insensibly led first to palliate and then to defend the guilty 
 murderer, Hull, by having their feelings enlisted in his favour, with 
 a hope of being instrumental in saving his life. There were thou- 
 sands of persons, male and female, in Baltimore, Philadelphia, and I 
 believe in New-York, who signed a memorial to the Governor to par- 
 don him, and it was really shocking to a man, who reflected upon the 
 consequences of these things, to see with what ingenuity and earnest- 
 ness, respectable people, of both sexes, palliated and defended 
 the crime of that monster, which ought never to have been mentioned 
 
52 
 
 but with execration and horror. The same thing is constanlly re- 
 pealed in this state, although upon a smaller scale, with every crimi- 
 nal condemned either to the penitentiary or the gallows, who has any 
 respectable friends. To prevent every thing of the kind, both upon a 
 great and small scale, I would take away the power to pardon. If 
 there must be such a power somewhere, leave it with the legislature: 
 there would be very little danger that they would ever exercise it. 
 There should also be as little discretion as possible left with the court 
 in affixing the penalty to tiilitrent offences. 1 have known a man to 
 be sentenced to the penitentiary for ten years, for stealing a piece of 
 calico not worth more than ten dollars, without any proof of his being 
 an old offender; and I have known a man to be sentenced only ten 
 years to the same penitentiary, who had committed a most atrocious 
 murder. Such inequality ought not to be, and the improvements 
 which I have suggested will necessarily leave very little discretion 
 with the court. 
 
 A great deal of mischief has been done in this state and in Penn- 
 sylvania, and, for ought I know, in some of the other states, by at- 
 tempting to improve the common law of homicide. The attempt to 
 make two species of murder, when there is in the nature of things 
 but one, and punishing the one with death and the other with impri- 
 sonment, has had the effect of reducing all or nearly all murders to 
 the second grade, for it is seldom that a jury will, under any circum- 
 stances, find a man guilty of murder in the first degree. The common 
 law of homicide is as perfect as the reason of man can make it, and 
 the only rational distinction of felonious homicide is iuto murder and 
 manslaughter, as the common law has established it. Ihere are, 
 however, some cases of constructive murder in England, which are 
 rigorous and unjust.^ But this is the fault of other branches of their 
 law and not of that relating to homicide. Where stealing a chicken 
 is a capital offence, if a man in attempting to steal a chicken uninten- 
 tionally kills a man, it is as perfectly consistent with the code of laws 
 thai he should be punished as a murderer, as it is that a man should 
 be punished as a murderer, who in attempting to murder A, uninten- 
 tionally kills B. .*<ome of these cases of constructive murder in Eng- 
 land, are rigorous and unjust; and some of our legislators have sup- 
 posed that the common law of homicide required remedy, wilhoat 
 ever reflecting that the law would be different in this country, without 
 
53 
 
 any legislative interference, inasmuch as stealings is not a capital of- 
 fence by uur laws, and therefore homicide committed accidentally, in 
 attempting to steal, would not be murder. 
 
 I have thus, gentlemen, stated, I fear more in detail than you will 
 have patience to read, some of my notions on the main question pro- 
 posed. My opinion on the other questions will be readily deduced 
 from what I have said upon this. It will be highly gratifying to me, 
 should I be so fortunate as to be successful in my feeble attempt to 
 assist you in your arduous undertaking. 
 
 With a most sincere and hearty wish for a successful termination 
 of your labours, upon this interesting and important subject, 
 1 have the honor to be 
 
 Your most obedient, bumble servant, 
 
 D. RAYMOND. 
 
 Messrs. C. D. Colden, 
 P. A. Jav, 
 
 J. MiLNOR, 
 
 T. Eddy, 
 
 C. G. Haines. 
 
 From the Honorable ROBERT GOODLOE HARPER. 
 
 Baltimore, Oct. 20, 1820. 
 
 DEAR SIR, 
 
 I was in hopes of being able, before now, to make a communi- 
 cation to you, on the subject of the Penitentiary System, in answer to 
 Lhe circular letter, which I sometime ago received, from the Committee 
 Df which you are Chairman ; but various interruptions have hitherto 
 delayed the execution of my purpose. I have bestowed much reflec- 
 lion and attention on this interesting matter, both now and heretofore, 
 md have recently made such enquiries as were in niy power, for its 
 further elucidation. As soon as possible, I will do myself the honour 
 )f communicating the result to you. In the mean time, I beg you to 
 tccept the assurance of those sentiments of respect, with which 
 I have the honor to be, ' 
 Dear Sir, 
 
 Your most obedient servant, 
 
 ROBERT G. HARPER. 
 
 Cadwallader D. Golden, Esq. 
 
 i 
 
NEW-HAMPSHIRE. 
 Letter from the Hon. WILLIAM PLUMER, late Gtvemor of New- 
 Hampshire. > 
 Epping, (N. H.) Sept. 21, 1820. ' 
 
 SIR, 
 
 A few days since, I received a polite letter, signed by you and 
 the otlier gentlemen who coupose the Committee of the city of New- 
 York, appointed to prepare "a general Report on the results and ten- 
 dency of the Penitentiary System." You suggest a number of en- 
 quiries for consideration, and request my opinion upon them. 
 
 The subject which has engaged your attention, is important; and 
 the cause of humanity has a deep interest in the result. Crimes will 
 be perpetrated, and offences committed, so long as man and society ■ex- 
 ist. It is, therefore, more important that good men and wise men, in- 
 stead of wasteing their time in lamenting the follies and crimes of the 
 vicious, and wishing their reformation, should adopt efficacious meas- 
 ures to suppress crimes and offences, by a course of punishment, at 
 which humanity has no cause to revolt, and which ought to convince 
 offenders themselves, that their own interest requires their reforma- 
 tion. 
 
 From my own knowledge of the effects of the Penitentiary System 
 in New-Hampshire, and from information received from other states. 
 I am fully convinced, that it has more effectually suppressed crimes 
 than any mode of punishment previously established. I should, there- 
 fore, regret that the friends of Penitentiary establishments should aban- 
 don them, or that their enemies should induce the legislatures of the 
 states to neglect them. 
 
 Our State Prison, or Penitentiary House, has been built and occupied 
 more than eight years. Previous to its establishment, I had strong 
 doubts of its utility, but experience has convinced me, that it is prefera- 
 ble to our former system. The punishments inflicted upon the offen. 
 ders, are not only such as the people approve, but the offences are such 
 as in their opinion, render the criminals dis^racc/w?; which, in many 
 instances, was not the case, when the culprit was confined, in a state 
 of idleness, in the same gaol, though in a different room, with unfortu- 
 nate debtors, or petty offenders. The circumstance of confining none 
 but criminah in the same establishment, has a powerful tendency to 
 impress upon the great mass of the people, the distinction between 
 
55 
 
 •imes and petty offences— and to restrain them from committing die 
 rmer. The culprits are now compelled, by hard labour, to make 
 »me amends to the society they injured. Their punishment is more 
 ?rtain, as escapes are much less frequent than under the former sys- 
 •m. There are, also, better means of separating the young from the 
 d hardened offenders, than in the county prisons. And considering 
 le relief such establishments afford to the counties from the support of 
 le offenders, I am persuaded, that, with prudent management, they 
 ill not materially increase the public expenditure. This fact appears 
 ibstantiated, by the changes introduced into the establishment, in this 
 ate, in the course of the three last years. If Penitentiary establish- 
 lents are not schools of reform, they will, at least for a period, 
 2cure the public against the depredations of those who are confined 
 fithin their walls. 
 
 Previous to the establishment of the state prison, in 18 12, there were 
 1 New-Hampshire, eight offences that, by law, subjected the offender 
 
 0 capital pnnishment ; but in that year, they were reduced to two — 
 reason and wilful homicide. If this benevolent change in our laws has 
 lot diminished, it has not increased, the number of crimes. A san- 
 ;uinary law, a law opposed to the feelings of humanity, cannot be exe- 
 uted. When death is the punishment to be inflicted, jurors will ac- 
 [uit, where, had the punishment been milder, they would convict, and 
 he criminal have suffered for his offence. 
 
 If the Penitentiary System should be abandoned, I know no other 
 hat can supply its place. To doom the crioiinal to a life in chains 
 
 1 more disgusting to humanity, if not more expensive, than condem- 
 ing him to labour for life in a PenitenticU-y, where he may, without 
 :hains, be equally as well secured. And as to transporting criminals 
 0 a distant country, I know of no rightful authority which one nation 
 
 , as to send their criminals and outcasts into the territories of another. 
 To send them to some desolate island or country, if such can be found, 
 till they must live in the neighborhood of some other people ; and it 
 'ould be an act of injustice in us, to force bad neighbors upon them — 
 n act which cannot be justified upon the principles of either policy or 
 lorality. . For a nation, or a state, to establish a settlement composed 
 f criminals, whom they consider dangerous to the well-being of socie- 
 f, appears to me hostile to the genius and principles of all civil insti- 
 itions. But if there were no objections arising from policy and mo- 
 
66 
 
 >al considerations, to the transportation of criminals, the expense would 
 be great, and if carried to a considerable extent, the transportation 
 would be impracticable. 
 
 If men of talents and information would devote their time and at- 
 tention to the improvement of our Penitentiary System, I think most 
 of the objections to it would be obviated, and the nation derive much 
 greater benefit from the establishment, than they do at present. Much 
 care and sound discretion ought to be exercised, in selecting men, who 
 possess the peculiar and necessary qualifications for the good govern- 
 ment and prudent superintendance of those institutions. Much, very 
 much indeed, depends upon the character, disposition and capacity, of 
 those officers. A good law may be administered in such an improper 
 manner, as to render it more than a dead letter — a curse to society. 
 
 Effectual measures should be adopted to separate, in the Penitentia- 
 ry, old offenders from the young and inexperienced ; otherwise, the lat- 
 ter, instead of being reformed, will become adepts in crimes, and when 
 the term of their confinement expires, they will return to society more 
 wicked and abandoned than when they left it. 
 
 The power of granting pardons to convicts, should seldom be exer- 
 cised. The certainty of punishment has a great, if not the most pow" 
 erful, influence upon the wicked, in restraining them from the commis- 
 sion of crimes. The government should, therefore, avoid every thing 
 that has a necessary tendency to impair the force of that certainty. A 
 hardened, subtile offender, dead to moral feelings, calculates upon the 
 many chances he has to escape punishment. His hopes are strong tiia' 
 he shall not be suspected — that if he is suspected, he shall be able tu 
 avoid arrest — that if arrested, proof will not be obtained to convict him 
 — if convicted, that he shall be pardoned. That spirit of benevolence, 
 which often prompts public ofiicers to pardon the guilty, does honor to 
 the heart, but it impairs the security of society. During the four years | 
 I was governor of this state, I pardoned only two of the convicts who 
 were confined in the state prison ; though the applications for the first 
 two or three years, were numerous, and supported by the recomnien- j 
 dations of many respectable characters. I did not consider myself at ' 
 liberty to question the propriety of the opinion of the court who rei 
 dered the judgment; I believed they were the only tribunal" competent 
 to pronounce upon the innocence or guilt of the accused ; and that their 
 decision ought to be conclusive. I thought it ray duty to pardon a con- 
 
57 
 
 vict who was insane ; or approached a state of idiotcy ; or when sen- 
 tenced only for a term of years, if he was visited with sickness, which 
 from the want of free air and better accommodations, would probably 
 terminate in death. Of the convicts whom I pardoned, one was nearly 
 in a state of idiotcy, and the other, the physicians and officers of the 
 prison represented to be of the last class, and such, from his feeble ema- 
 ciated state, he appeared to me ; but within three days after his libera- 
 tion, his health was sound, and he again committed felony. 
 
 I rejoice that the business of preparing a general Report upon the 
 subject of the Penitentiary System is assigned to such able hands ; and 
 [ shall esteem it as a favor to receive a copy of it, when published. 
 I have the honor to be, 
 Respectfully, 
 Sir, 
 
 Your obedient servant, 
 
 WILLIAM PLUMER. 
 
 Hon. Cadwaladek D. Golden. 
 
 Letter from the Hon. LEVI WOODBURY, one of the Judges of the 
 Supreme Court in New-Hampshire. 
 
 Amherst, (N. H ) Oct. 7, 1820. 
 
 SIR, 
 
 While on the present circuit, I have received a line from a Commit- 
 ee on the Penitentiary System ; and am requested in a postscript, to 
 brward my answer to you. 
 
 In reply to the questions which they have had the politeness to ad- 
 Iress to me, I have leisure to make only a few very general, and very 
 i2isty remarks. 
 
 As respects the effect of that System, which is the first enquiry, I en- 
 ertain a decided opinion in favour of it. Not on account of its reform- 
 ig power, which is somewhat questionable ; but because the Peniten- 
 aryCodeis more lenient than former ones, and, though in some pla- 
 es more expensive, yet the disproportion here is not very great and 
 nderit the number of crimes has diminished. 
 
 Before its introduction here, our laws punished with death — treason, 
 lurder, rape, sodomy, burglary, arson, robbery, and one species of 
 1 )rgery. Fines and imprisonment, the lash and the pillory, were also 
 pstewed with unsparing severity, on minor offences. But the two last 
 
 H 
 
68 
 
 modes of punishment are now totally abolished, and death is inflicted 
 only on the traitor and the murderer. 
 
 The expenses of this System are, to be sure, greater than those of 
 the summary punishments before mentioned. But the difference is 
 yearly diminishing, in consequence of an improved economy, derived 
 from experience, in the management of our state prison. Provisions 
 are purchased cheaper — guards and directors are less numerous — and 
 the labour of the convicts, being farmed out to individuds, is much 
 more productive. 
 
 It is to be remembered, also, that the expenses of convictions are now 
 less, as the convict, though unreformed, cannot in the smaller crimes, 
 offend so often as formerly. 
 
 In relation to the second enquiry, I apprehend, that the ends of the 
 institution in this country have in part failed ; because too much was 
 expected from it. The reformation of the convicts,the expenses, and 
 the number of offences have not accorded with the sanguinary expecta- 
 tions of philanthropists. 
 
 But a general improvement in morals, ought not to have been anti- 
 cipated, without the use of additional means. The prisoners, accord- 
 ing to the enormity of their crimes, should be classed, and marked with 
 some distinctive badge. They should, during the day, be kept more 
 quiet and secluded from either society or conversation ; and, during the 
 night, wholly separated from each other. When their term of service 
 expires, they should, also, to prevent temptation to commit new offen- 
 ces, be furnished with such portion of their labours as will maintain 
 them, till regular employment can be obtained. 
 
 The disappointment as to the expenses, has arisen from the circum- 
 stances, that manufactures, on which the convicts have been necessarily 
 employed, have been unprosperous — that these Penitentiary institu- 
 tions, being of recent origin, could not be conducted with that provi- 
 dence and judgment, which would flow from experience, and that the 
 expectations on this subject, were in themselves, highly visionary in any 
 state of society, when public institutions must be left to the manage- 
 ment of agents, who possess, in their prosperity, no individual intep 
 est. 
 
 As to the number of crimes, they have not increased in this state, a: 
 in places where severe punishments have been retained. The last foui 
 years, there has been a gradual decrease : and if, on our seabord, the 
 
59 
 
 contrary has been experienced, it has, in a great degree, happened 
 from the circumstance, that the disordered soldiers and sailors, of both 
 Europe and America, have been there flung to famish or steal. 
 
 My opinion on the 3d and 4th questions, must be obvious ; and on the 
 5th, I would merely suggest, that, for repeated ofTences by the same in- 
 dividual, imprisonment for life ; or, if that be too expensive, capiial 
 punishment may be expedient. So in all cases of conviction, after a 
 pardon : for in these instances, hope of reformation has vanished ; and 
 the violated laws should have their victim, unless he can be withheld 
 eflOectually from future crimes, without too much expense to the pub- 
 lic. 
 
 As to transportation, we have no convenient Botany Bay ; and if we 
 had, the Penitentiary System may be made equally economical. 
 
 In fine, give me leave to add, that in the consideration of this Sys- 
 tem, it should never be forgotten, that the present expenses for the sup- 
 port of convicts are a less, and more equal tax on the public, than their 
 depredations when at large : and that security in person and property, 
 which are pecuniary objects of civil society, is much greater, when a 
 horde of criminals, of every grade, are in safe confinement, than they 
 are when prowling abroad. It is true, they might be executed ; but this 
 is abhorrent to the humanity and mildness of our institutions, and is not 
 to be done, unless the expenses of the Penitentiary System, and the 
 increase of crimes, under it, are such as to render the death of ofien- 
 ders indispensable to the safety of the public. 
 Excuse my haste, 
 Dear Sir, 
 
 And believe me, 
 
 Most respectfully, yours, 
 
 L. WOODBURY. 
 
 Hon.C. D. CoLDEN. 
 
 From SAMUEL SPARHAWK, Esq. Secretary of the state of New- 
 Hampshire. 
 
 Concord, (N. H.) Aug. 9, 1820. 
 
 MY DEAR SIR, 
 
 Before receiving your favor of 21st ult. I had frequently thought 
 of writing you, if it were but to acknowledge those repeated tokens of 
 your remembrance — the pamphlets and papers which I have received, 
 
60 
 
 and am weekly receiving from you. But this, like many others 0/ my 
 thoughts and purposes, would probably have proved abortive, had you 
 not broken the silence. 
 
 I have attended to your enquiries, and will now attempt briefly to 
 answer them. 
 
 The first is, whether the State Prison in this state has answered the 
 expectations of the public, as a place of punishment and reform ? 
 
 What these expectations were, before the experiment was tried, I 
 don't very well know, but suspect they were raised to a higher pitch 
 than deep thought and careful enquiry on the subject, would have siu- 
 thorised. 
 
 Confinement to hard labour, is a punishment, more or less, severe, 
 according to the temper, disposition, and habits of the person subjec- 
 ted to it. — To some, it seems to be very grievous ; to others, compara- 
 tively light. I am inclined to the opinion, that the mass of our crim- 
 inals do not view it with any great degree of terror. 
 
 As a place of reform, the effects of our State Prison have also been 
 various. Since November 1812, when it was fitted for the reception of 
 convicts, 150 have been committed for various offences, and different 
 terms of confinement —chiefly from two to five years. A number of 
 them have before been tenants of other State Prisons, and four after 
 having been discharged from ours, have returned on a second convic- 
 tion. 
 
 For a time, the number of prisoners continued pretty uniformly to 
 increase, till it amounted to 74, the largest number ever within our walls 
 at one time. Lately, though fluctuating, it has been rather decreasing^ 
 which would seem to be a favorable symptom — the present number is 
 only 65. 
 
 The general conduct of the prisoners, has been peaceable and sub- 
 missive, though with some exceptions. Indications of reform have ap- 
 peared in many, which, perhaps, have proved rather superficial, after 
 their restoration to liberty. There are instances, however, within my 
 knowledge, of convicts becoming reputable and industrious citizens, 
 after having served out their apprenticeships. On the other hand, it 
 must be acknowledged, that some shew no signs of reformation what- 
 ever. 
 
 On the whole, it is my opinion, that the advantages resulting from 
 our Penitentiary, considered as a place of punishment and reform, are 
 
61 
 
 is great as could reasonably have been expected, though I do not 
 think they have fully answered the expectations of the public. 
 
 If not, you enquire 2dly, Whether the failure has been owing to in- 
 trinsic defects in the Institution ; or, to defects in the construction of 
 the edifice, and our municipal regulations ? 
 
 That the expectations of the public have not been more fully answer- 
 ed, may be owing to defects, partly in the System itself, and partly in 
 oar municipal regulations. Improvements in both, have occasionally 
 been adopted. Two years since, the old Board of Directors, was abol- 
 ished, and the affairs of the prison were placed under the immediate 
 direction of the Governor and Council. A new warden or superinten- 
 dant was appointed, and the rules and regulations for the government 
 of the interior of the prison, underwent some revision ; all which chan- 
 ges, have proved salutary. Further experience, will probably suggest 
 □ther improvements ; but I am not aware, at present, of any material 
 defects in the System, on the existing regulations. Neitheram I aware 
 3f any important defect in the construction of the edifice ; nor do I 
 recollect ever having it suggested that alterations essentially advanta- 
 geous, might be made in this respect — some speculations of Jeremy 
 Bentham, or the like, perhaps, excepted. 
 
 Your third enquiry, viz. " Has the state of New-Hjmipshire gained, 
 )r has she lost by the establishment of her Penitentiary, in a pecuniary 
 Doint of view ?" is easily answered. In a pecuniary point of view, she 
 las lost. The expenses of the Institution have far exceeded the gains 
 lerived from it. Besides the first cost of the buildings and appurte- 
 tances, (say ^37,000) there has since been drawn from the treasury, to 
 lefray the expense of additional buildings, for the maintenance of the 
 :onvicts, pay of the officers and watchmen, and other incidental and 
 :asual expenses, about ^35,000, — of which sum between four and five 
 housand dollars was expended in additional buildings, including a 
 ?ork-shop of brick, in lieu of a wooden building, which was burnt. 
 Vhereas, the profits arising from the labour of the convicts, &c. amount 
 J but little more than ^16,<lOO. It is worthy of remark, however, that 
 ince the improvements, before mentioned, were adopted, there has 
 een a considerable reduction of expenditure. The year ending May 
 il, 1819, the actual expenses exceeded the profits, by about six hun- 
 dred dollars only, and the last year, by about four hundred. 
 
 But there is another consideration deserving of attention, in estima- 
 
ting the loss or gain to the state. The present System, enables us to 
 compare the one with the other, aud accurately strike the balance — 
 which indeed proves to be a heary loss. But what would the loss have 
 been under the former System ? Would it, upon the whole, have been 
 less to the community ? I think not, though I have not the means of 
 forming a correct opinion. 
 
 I have not seen the publication by Mr. Rosco, which you mention, 
 but am glad to hear of so able a writer upon so important a subject. 
 In Great Britain, doubtless a radical change is necessary ; but I was 
 not aware that the construction and discipline of our prisons, in this 
 country, were so alarmingly defective, as to require a radical change ; 
 neither can I readily conceive it will become necessary, universally to 
 resort to solitary confinement, as the only efTectual method of punish- 
 ment and reform. But I will refrain from any further expression of 
 my sentiments, until I have a view of the vohole ground, in the Report, 
 a copy of which you kindly promise me. 
 Sincerely, and with great regard. 
 Your friend, 
 
 S. SPARHAWK. 
 
 C. G. Haines Esq. 
 
 From the same. 
 
 Concord, (N. H.) Aug. ll, 1820. 
 
 DEAR SIR, 
 
 After having sent my letter of the 7th to the post office, I noticed 
 in the Columbian of the 4th insf. an article taken from the Patriot, of 
 July 11, headed, " New-Hampshire State Prison ;" wherein, after stat- 
 ing the gain of the last year to be $^57, 2S, another statement is given, 
 shof^'mga further gain o{ ^^5^, 55, which is incorrect. The former 
 sum includes the whole gain to the state exclusive of the warden's sala- 
 ry, which being added to the expenses, will turn the balance the other 
 way — making a loss of about four hundred dollars, as stated in my 
 letter. The sum of .f ^•S^ 55, said to he further gained, was merely 
 the result of another process, which ought to have shown, not a further 
 gain, but the same balance, i. e. the result of each process should have 
 been the same. They are nearly so, but not exactly. 
 
 The same number of the Patriot, contains a summary statement of 
 the pecuniary affairs of the prison, for the last four years j showing the 
 
63 
 
 lalance against the Institution, or loss to the state, at the end of each 
 ■ear. This statement will also appear at variance with that I lately 
 ent you. The former, represents the prison as only $12,388 in ar- 
 ears, on the first of June last ; whereas in my letter, the loss was esti- 
 aated in round numbers, at .$19,000. The difference arises from the 
 ircumstance of the warden's and director's salaries being included in 
 he latter sum, and not in the former. 
 
 The statement in the Patriot, also exhibits a balance against the In- 
 ititution, on the 1st of June, 1819, greater, by upwards of f 3000, than 
 hat of the y)receding year, which would lead to the inference, that the 
 expenses or the year, ending June 19, had exceeded its profits by that 
 sum, which is not the fact. When the new warden entered on the du- 
 ies of his office, the property appertaining to the prison, being apprais- 
 »d, amounted to less, by about <^2000, than it had been estimated in 
 Jie last preceding report of the former warden. Thus a reduction of 
 ;he value of the property, which really existed, and should have appear- 
 sd in the estimate of 1 81 8, was thrown upon the succeeding year. This, 
 iiowever, is of no importance in a general view of the subject ; but I 
 thought it mieht be well to offer this explanation, otherwise, you might 
 be pu/.zled with the discupancy between this statement, should you have 
 seen it, and my account of the loss incurred the year ending May 31, 
 1819. 
 
 Being rather in haste, and frequently interrupted, I fear I have not 
 vritten very intelligibly or legibly ; but if you can discover any mean- 
 ing, you will excuse the rest. 
 
 Yours, with much esteem, 
 
 S. SPARHAWK. 
 
 C. G. Haines Esq. 
 
 -«tllli<^IIIIK=- 
 
 VERMONT. 
 
 PVoro the Honorable DANIEL CHIPMAN, Counsellor at Law, 
 late Member of Congress. 
 
 MiDDLEBURY, Jan. 29, l82l. 
 
 SIR, 
 
 The letter from the Committee of whom you are Chairman, un- 
 der date September, ] 820, requesting information relative to the Peni- 
 (entiary System, was duly received. It has hitherto remained unan- 
 
64 
 
 swcred, by reason of constant and necessary attention to my profes- 
 sional and other business. Possibly, however, I have not improved 
 the first leisure moment, from an impression, which 1 yet sensibly feelj 
 that I can give the Committee no aid in their investigations. But 
 such is the importance of the subject, and I so highly approve the 
 course which the Committee have taken to enable them to arrive at a 
 clear and satisfactory result, that I could not remain silent. It gave 
 me peculiar uneasiness when I reflected that my silence might be con- 
 strued into an indifference and want of interest in the subject. 
 
 I cannot, however, attempt to give an answer to either of the ques- 
 tions proposed, but merely give you the general view I have taken of 
 the subject. 
 
 The Penitentiary System was introduced in the United States when 
 there was a rage for improvement. It was supposed by many, that 
 the world, or rather some individuals, had been suddenly enlightened; 
 that the dictates of experience were only so many obstacles to the per- 
 fectibility of human nature, of which they talked so much, and to whicli 
 they really believed they had arrived ; and that they could, by a 
 mighty effort, bring the darkened and lagging world up to their own 
 elevation. This day of enthusiasm has passed away, and we find our- 
 selves in the situation in which imperfect man has ever been : know- 
 ing but very little which it is useful to know, but what was known be- 
 fore ; and indeed it requires labour to keep the stock good, if I may so 
 Say, and transmit as much to posterity as we might learn from those 
 who have gone before us. True it is, that all our institutions are im- 
 perfect, and would therefore seem capable of improvement. One 
 difficulty is, that mere considerations of duty do not excite to action ; 
 some passion must be aroused, an enthusiasm must be imbibed, in 
 order to excite to action, and introduce any considerable improve- 
 ments. When thus excited, we are apt to let go our hold of experi- 
 ence, and turn out visionary projectors. Even the exalted talents of 
 Lord Mansfield did not wholly protect him against this weakness of 
 human nature. He entered upon the business of improving the system 
 of the Common Law with no more ardour than was necessary to effect 
 the object, and yet suflTicient to lead him, in some few cases, to mar 
 the system he was attempting to improve, and which he did improve 
 beyond any other judge on the English bench. 
 
 But the projectors or promoters of the Penitentiary System, were 
 
63 
 
 peculiarly exposed to an enthusiasm which led them to expect bene* 
 ficial effects, which could never be realized. Every feeling of hu- 
 manity was enlisted — it was so pleasant and so satisfying, to think not 
 only of saving the life of the offender, but of reforming hira, and 
 restoring hina to society a useful member. It was also calculated that 
 the punishment would strike a dread upon the vicious, equal to an 
 ignominious death upon the gallows. I well recollect that I entertain- 
 ed such notions, for such I now view them. 
 
 The State Prison in Vermont was erected and organized in 1808, 
 a.nd the I'enitentiary System went into operation in 1809. Confine- 
 ment in the State Prison is now the punishment for all high crimes, 
 except treason and murder. False witness, by which life is taken ; 
 and arson by which any person shall suffer death, or be injured in his 
 body or members ; and for inferior crimes, down to petit larceny, in- 
 clusive. The Governor and Council have the power of pardoning. 
 This body consists of twelve Counsellors, chosen by the people annu- 
 iUy, and the Lieut. Governor, who sits as Counsellor when the Go- 
 rernor is present. The Governor presides as chairman : the Govern- 
 ttr end Council is a branch of the legislature, in place of your Senate, 
 !)ut with more limited powers in legislation. The power of pardon- 
 ,iig has been exercised, as might have been expected from such a body, 
 very liberally : a number have been pardoned every year. When the 
 system first went into operation, it was clearly visible that the punish- 
 nent struck offenders with a high degree of dread ; but it is now uni- 
 versally observed that the dread of punishment is almost wholly worn 
 )ff. The prisoners live comfortably while in prison, and it is perfectly 
 ivident that most of them think nothing of the disgrace of confine- 
 nent. As to reforming the offender, it is out of the question, in the 
 ainds of the most observing I only wonder how it ever could have 
 teen thought there was any considerable chance for reformation. The 
 irisoners are only exposed to corruption. A young man who has been 
 letected and punished for the first crime he has committed, and who 
 las no stated habits of vice, is confined with old and hardened offend- 
 I rs, and those will have an influence upon the young mind — he will, in 
 measure, look up to them. But if the prisoners are kept in such a 
 lanner that they arc not exposed to corruption, what chance for re- 
 ormation ? We find no reformation, in fact, and I think we have no 
 light to expect it. JMan is emphatically a creature of habit: — he is 
 
 I 
 
66 
 
 governed by habit, if we may so say. The nioial faculty requires 
 exercise to keep it in vigor, that it may perform its office, as much as 
 the body. Confine a man ten years in the State Prison, removed of 
 course from all temptations to vice ; he may be said to lose the habit 
 of resisting them and when let into the world again surrounded by 
 temptations, he gives way to the first which is presented. 
 
 I have made use of too strong language for a sober discussion ; but 
 I must say that confinement to hard labour, for the reasons above men- 
 tioned, has a natural tendency to weaken the moral faculty, by de- 
 priving it of exercise, and the culprit leaves the prison in a state more 
 liable to give way to temptations than when he was committed. Thus 
 U has happened with the Penitentiary System, as it usually happens 
 upon the introduction of any new system — the great good to be pro- 
 duced, so certain in theory, is not obtained in practice. But unfore- 
 seen evils are produced. Such has been the disappointment with 
 respect to the Penitentiary System, in this State, that almost every re- 
 flecting mind is brought to a stand, and has endeavored to make a com- 
 parison between the former system of capital and other punishments 
 and tlie present system. In making this comparison, we meet witii 
 difficulties in the outset ; such was the state of society when the pre- 
 sent system was introduced, and such the paucity of crimes, that nei- 
 ther capital or other punishments had any visible effect. If we take 
 a view of the effects of capital pmiishments in Europe, and compare 
 them with the effects of the Penitentiary System here, we advance 
 scarce a step towards a solution of the great question — " is it politic 
 and necessary to abandon the Penitentiary System, or is it better to 
 attempt its improvement ?" Such is the difference between the state 
 of society in Europe, with their crowded and half starved population, 
 and the state of society with us, that any one system of punishments 
 must produce very different effects in the different countries, and proba- 
 bly no possible system would be the most beneficial one in every coun- 
 try. An adaptation of a law to the state of society, in order that it 
 may be useful, is not more obviously necessary in any branch of mu- 
 nicipal regulations, than in the criminal code. If the law inflict pun- 
 ishment unnecessarily severe, it will be executed with no degree of 
 certainty, and the dread of punishment will be lost in the chance of 
 escape. The community must be alarmed by the commission of crime : 
 an interest in their own security alone will overcome their feelings of 
 
67 
 
 humanity, (false humanity in most cases,) and reconcile them to san- 
 guinary punishments. This consideration alone should induce our 
 legislature to continue the Penitentiary System. But I really cannot 
 conceive how you can live under such a system, in so populous a city 
 as that of New- York. 
 
 We have no populous towns, nor shall we ever have. I believe, 
 therefore, that the Penitentiary System may be continued in this state, 
 for all future time, with some essential improvements, which may take 
 place, nay, they will take place, if, as I believe, crimes will be multi- 
 plied, and increase indefinitely, under our present system. The alte- 
 rations I should propose to make would be something like the follow- 
 ing : — To make some of the higher crimes capital ; say forgery and 
 horse-stealing: inflict corporal punishment for some of the inferior 
 crimes, such as petit larceny, as formerly : and, by the constitution, 
 take away the power of pardoning those committed to the State Prison. 
 Under such a system, we could provide buildings sufficient to contain 
 all who would be committed, and should not be compelled to let out a 
 part to make room for others. And yet I have no doubt, that if the 
 power of pardoning had have been taken away in the outset, the State 
 Prison at this day would have had a less number of tenants than it has 
 at present, which number, by the way, is now 110 only. The com- 
 mittee will readily perceive that if I am correct in the view I have 
 taken of this subject, I am not in a situation to give them any aid in 
 the arduous task assigned them, of devising the best system for the 
 punishment of crimes in the state of New- York. 
 
 If incorrect in the view I have tciken of the subject, what I have said 
 will be wholly useless. However this may be, I hope the Committee 
 will do me the justice to believe, that I feel a deep inlerest in the re- 
 sult of their labours, and shall be highly gratified with their Report. 
 Very respectfully, 
 
 Your obedient servant. 
 
 DANIEL CHIPMAN. 
 
 Hon. Cadwallader D. Colden, 
 
 P. S. Permit me to introduce another subject, not connected with 
 the foregoing, but related to it. We have no law in this state, and I 
 take it you have no law in the state of New- York, making it penal to 
 counterfeit, or pass counterfeit bills on the Canada banks ; and they 
 have no law in the province of Canada, making it penal to counterfeit 
 
68 
 
 our bills. The consequence is, that they openly, antl with perfect 
 safety, set up their presses in the province of Canada, on the borders 
 of our states, and counterfeit our bills and keep them for sale. Ib 
 this state of security, they have made wonderful improvement in the 
 execution of the bills, and do, and forever will, find purchasers among 
 our citizens We may fill our State Prison, yet the crime will not be 
 prevented, or even checked. If this can be prevented, does it not 
 savour of criminality to neglect it. They establish themselves oa 
 this side the line, and with equal safety, counterfeit Canada bills. 
 Should We not, then, in the state of New- York and in Vermont, make 
 it penal to counterfeit the Canada bills, or to pass such counterfeit 
 bills ; and would not the government of Canada, on a representatioa 
 made to it, of the real state of the case, pass a law making it penal to 
 counterfeit bills on the banks of the United States ? Should they do 
 so. they would, in that government, make it a capitcd offence, of course. 
 
 This done, we should, compared with what we now experience, 
 have very little trouble with counterfeit bills. We know by experi- 
 ence, that before they found they could carry on the business with 
 safety in the province of Canada, they used to attempt setting up their 
 works in the states, and that they seldom got them into operation be- 
 fore they were detected and broken up. If these counterfeiting esta- 
 blishments can be broken up, we ought to eSect it. It is a duty we 
 owe to the honest and industrious part of community, to protect them 
 against the counterfeit bills ; and to the vicious part of community, to 
 remove the temptation to purchase. D. C. 
 
 -«iMI|^|lllie- 
 
 VIRGINIA. 
 Letter from SAMUEL P. PARSONS. 
 
 Virginia Penitentiary, 11th Mo. 14, 1820. 
 To the Committee appointed to Report on the Pcnitcntianj, <^ c. in the 
 State of New-York. 
 
 GENTLEMEN, 
 
 Your written communication did not get to hand until the 6th 
 instant, otherwise you should have heard from nie ere this. 
 
 Before I proceed to answer your queries on a subject in which I feel 
 a deep interest, I beg leave to make a few general remarks, in rela- 
 tion to the Heniteutiary System — a mode of punislmwnt very cons 
 
6^ 
 
 iiant with our republican institutions, and on« that has not receired 
 that attention which its importance requires. That any institution, 
 the object o^ which is to better the condition of our fellow men, 
 should meet with opposition, before it has been fairly tried, and every 
 exertion used to promote its usefulness, is much to be regretted. 
 
 I consider few subjects less understood, and of more importance, 
 ihan this. When we speak of Penitentiaries, we mean places to 
 punish the guUtj and render them better ; at the same time to deter 
 jthers from the perpetration of crimes, the success of which depends 
 on two great points : First, laws that are equal in their operation, and 
 certain in their execution. Secondly, a suitable bead to administer 
 hese laws properly, and to direct all its movements. This, perhaps, 
 is the greatest difficulty, and requires the most profoiuid and judicious 
 irisdom in naking the selection. On this every thing depends, and 
 ivithout it every thing is lost. There may be inspectors, agents, 
 ;lerks and assistants, which will avail nothing if the head is mate- 
 iially defective. 
 
 To oTffanize such an institution to advantage, a man should be got, 
 inown for his virtue, mechanical knowledge, industry and intelligence ; 
 niW, but decisive character ; benevolent and charitable. He should 
 )e responsible for the whole government. There should be a board 
 if a few discreet and intelligent men, not exceeding seven, to superin- 
 end the disposition of the manufactures, and to control the many 
 :oncems of the establishment. The superintendcint to have power 
 0 form all rules and regulations for the government of the interior, 
 rabject to the negative of this board. They should be co-ordinate 
 n their functions. AM other officers should be appointed by the 
 .Tiperintendant, likewise subject to the negative of this board. In 
 act, the board to act in the capacity of advisers and counsellors, ex- 
 :ept in relation to sales, purchases, &c. for the use of the prbon — 
 lere they should have the sole power. As the superintendant must 
 tnow what is wanting, and when, and the quality of the article, he 
 ihould, of course, be the purchaser of the raw materials for the use 
 Df the institution. 
 
 From my youth I was a friend to the system ; believing that justice 
 ■equired punishment to be apfKjrtioned agreeable to the magnitude of 
 luilt ; that it was inliuman to involve all offenders in the same punish- 
 nent ; and, as my information was very limited on the subject, never 
 
TO 
 
 having seen a similar institution, other than this, upon my appointment 
 to the office I now hold. I was a mere novice in the practical man- 
 agement of such an institution ; but I had much at stake, and began 
 to search for the defects and their causes, and have great satisfaction 
 in having been able to obtain many alterations, and make essential im- 
 provements, in the government and police of this prison. Still it is 
 far short of that perfection it is susceptible of attaining. I am flatter- 
 ed with a prospect of the legislature doing something towards impro- 
 ving the system at its ensuing session. 
 
 For some valuable information on the Penitentiary System, I would 
 refer you to several essays that appeared in the Enquirer of Richmond, 
 during the last summer ; they were re-psblished in many of the 
 northern papers ; should they not be obtained in your city, I wiU en- 
 deavor to procure and forward them, with our annual report, ending 
 on the 30th of 9th mo. last, as soon as it is printed. 
 
 Should these hasty remarks throw any light on the subject of your 
 enquiry, I shall be well compensated in aiding and promoting so lauda- 
 ble an undertaking. I shall be pleased with a copy of your Report. 
 Respectfully your Friend, 
 
 SAMUEL P. PARSONS. 
 
 Answer 1. I am not able to say what has been the effect of the Pen- 
 hentiary System in the United States ; but believe that in Virginia, 
 and some others, it has had some good effect. It certainly is, in my 
 view, susceptible of such improvement as to be one of the greatest in- 
 stitutions the world has yet produced. I find that, between the years 
 1800 and 1816, there were fewer capital crimes committed in this 
 state than at any 15 previous years, since the adoption of our govern- 
 ment; and this I attribute to the certainty of punishment, because of 
 its mildness. 
 
 Ans. 2. The Penitentiary System has measurably failed to answer 
 the ends of its institution, and the causes are attributed to various de- 
 fects, viz : The pernicious practice of frequent pardoning — a sickly 
 sympathy extended to those professing reformation, under a cloak of 
 religion — a deficiency in the qualification of officers, who are not 
 clothed with sufficient power to suppress all disorderly conduct in the 
 convicts — the want of a proper head to direct its movements — too 
 great an intercourse, out of wanton curiosity, into the prison — too ma- 
 ny are lodged in a room— the confinement not sufficiently solitary. 
 
71 
 
 Ans. 3. I think it woold be bad and inhuman policy, and unne* 
 ■essary, to abandon the Penitentiary System ; because I have no 
 loubt but it may be improved, to national advantage, and made to 
 inswer the ends for which it was created. There is no mode of pun- 
 shment so hkely to check the career of vice, as that of the Peniten- 
 tiary. 
 
 Arts. 5. I believe that capital punishments have not yet succeeded, 
 n any country, to secure the community against the commission of 
 ;nmes. 1 have seen some late accounts from England, where (he 
 ;riminal makes a laugh at going to the gallows, while others are com- 
 nitting the same crime for which he is then to be punished. It would 
 )e very difficult to inflict capital punishment, in this country, to a 
 Teater extent than the present existing laws require, neither is it con- 
 sistent with a Christian nation. 
 
 Ans. 6. That of transporting criminals, from a country like this, 
 [ consider absurd, inconsistent, and injurious ; because we have no 
 territory, other than on this continent, and if we had, they must be 
 left to destroy each other, or an army created to keep them in order, 
 which is, I think, inconsistent with the republican institutions of this 
 country. As to reforming convicts by dooming them to the chain, I 
 ;onsider the worst of all. It degrades, hardens, and genders the most 
 inhuman and cruel tyrant in the world. 
 
 NEW-JERSEY. 
 From WILLIAM NEWBOLD, Esquire. 
 
 Springfield, N. J. nth mo. 1st, 1820. 
 
 ESTEEMED FRIENDS, 
 
 Your circular, under date of Sept. 1820, arrived when I was on 
 a distant journey, and since my return have been pressingly engaged. 
 I mention these circumstances as an apology for not giving it earlier 
 attention. 
 
 The subject introduced, undoubtedly, is one eminently interesting 
 to society, and therefore entitled to close investigation, before a final 
 decision is had upon it — nor am I dissatisfied in finding that the can- 
 vas is set on foot, believing that if it is dispassionately conducted, it 
 will be ultimately productive of good. 
 
 I am aware that there is much diversity of opinion respecting the 
 
Penitentiary System— but I should most willingly hope, that it is 
 rather on the point of political expedience, than of moral soundness, 
 that any doubts exist ; — for, though the first, (as a mischievous doc- 
 trine,) might produce unhappy effects ; yet 1 conceiire the latter to 
 be much more alarming, as it would be indicative of a degeneracy 
 of morals, and must necessarily influence a decision upon the main 
 question. For our criminal laws, though they were made literally 
 perfect, yet if they are not congenial with the temper of the people, 
 or the feeling of the people not in unison with the laws, they will be 
 little more than a nullity. 
 
 My speaking thus in allusion to Penitentiaries, is from the view of 
 them, on the broad basis of a system of reform. Their legal and in- 
 ternal "regulations, I consider a somewhat distinct matter, and of 
 subordinate nature. Fur if it is correct as a principle, that the sys- 
 tem of reform is fundamentally sound, the great point is settled — and 
 it is one to which all the practical operations ought constantly to con- 
 verge : and that it is sound, 1 think no moral philosopher can ration- 
 ally doubt. 
 
 To come, however, to the particular subjects of enquiry, I answer 
 to the first, That, having no data to proceed upon, 1 cannot say any 
 thing that would be conclusive or satisfactory. ; 
 
 2d. The Penitentiary System has failed to answer the ends of its in- 
 stitution — and this failure may be attributable, both to a defect ia 
 the legal provisions, and to the internal police of the establishments. 
 For, as I have already premised that reform is to be the paramount 
 consideration — so in accordance with this doctrine, the authorative acts 
 of man toward his fellow man, must be with a view to his moral good — 
 political expedience will then, (as it always ought,) be subservient to 
 moral right — and the only question will be, how best to attain the de- 
 sired object ; — which must, in a great measure, be decided by existing 
 circumstances. While, on the other hand, fruits answerable to the rea- 
 sonable desires of the philanthropist, or the seeming expectations of 
 the community, are not to be looked for from the System, in so defec- 
 tive a form. 
 
 3d. It is not politic or necessary, to abandon the Penitentiary Sys- 
 tem, unless there is such a general depravity of morah in oar Republics, 
 that it cannot be sustained — and if that is sorrowfully the fact, it is 9 
 plain index to their downfall ; but if the case is otherwise, attempt, by 
 all reasonable means, its improvement. 
 
73 
 
 4lh. If the Penitentiary System is thus abandoned, I think we need 
 ot much concern ourselves, to find a substitute ; but rather leave the 
 oncern, in its untoward state, to the conflict of the boisterous ele- 
 nents. 
 
 5th. A radical defect in our present Penal Code, is that capital pun- 
 ghmentis authorised in any case; consequently it would not promote 
 le ends of justice, nor contribute to public security, to extend it, un- 
 ;ss as before stated, we have not virtue enough to do otherwise, and if 
 re have not, the power, (or at least the advantage,) of choice, is 
 ;one. The ship may be given up. 
 
 6th. The practicability of transporting criminals, would depend on 
 ertain circumstances ; particularly that of having a suitable place to 
 onsign them to. If such a place was had, it appears not very impro- 
 )able that it might, in cases of a particular description, be the best way 
 f attaining the end in view ; — and if so, then it would be politic, but 
 lot otherwise. Nor would it be consistent with the nature of those in- 
 titutions, nor reform criminals, to doom them to the ignominious and 
 ;alling chain ; it would be a severity tending to make the mind more 
 :allous, and consequently, fit it for increased crime. 
 
 But, although cure is good, prevention is better ; and while we are 
 audibly concerned in endeavoring to reclaim the evil members of socie- 
 y, let us look to the source from whence much of the malady springs, 
 nd endeavour to lessen crime, by an increased attention to correct ed- 
 cation, and moral instruction, which, being promoted by good laws, 
 'ell administered, will leave fewer criminal subjects, to afterwards re- 
 laim. 
 
 I have, with franknt,. and freedom, attempted to answer the queries 
 roposed, by briefly expressing my ideas on the interesting subject. 
 ! our liberality will excuse the imperfections of the composition. 
 With unfeigned desires that the good work before us may prosper, 
 ad its benefits be difiiised over our beloved country, 
 I am, with sentiments of respect and esteem. 
 Your sincere friend, 
 
 WILLIAM NEWBOLD. 
 
 To C. D.COLDEN, 
 
 P. A. Jay, 
 
 J. MiLNOR, 
 
 T. Eddy, 
 
 C. G. Haines. 
 
 K 
 
74 
 
 CAPITAL PUNISHMENT IN ENGLAND. 
 
 Tlie following testimony, is embraced in the Report from the select 
 Committee on the criminal laws in England, to the House of Com- 
 mons, on the 8th of July, 1819. We trust that the fdcts here laid 
 before the American public,, will carry conviction to every bosom. : 
 The whole Report, from which this extract is taken, together with I 
 the details of evidence and the appendix, makes about 300 folio pa- 
 ges. If the great and luminous document from which we gather the 
 facts now submitted, could be extensively read in the United Stales, 
 the good old doctrines of William Penn, Benjamin Franklin, Wil, 
 liam Bradford, and Benjamin Rush, might again be fashionable in a 
 christian community. 
 What do the following witnesses prove ? They substantiate what we 
 assert in our Report. The severity of punishments will defeat the i; 
 execution of the law. Witnesses, grand juries, petit juries, and even • 
 executive magistrates, will avoid the infliction of death, where they 
 can do it, and thus let criminals escape, and crimes go unpunished. 
 "Your Committee have sought for evidence on these subjects from 
 those classes of men who are suflerers from Larcenies, who must be 
 prosecutors where these Larcenies are brought to trial, who are the ' 
 witnesses by whom such charges must be substantiated, and who ar» - 
 the Jurors, by whose verdicts only effect can be given to the laws. On 
 this class of Persons, where the crimes are most frequent, and w here I 
 long and extensive experience allows little room for error and none for 
 misrepresentation, or in other words, on the Traders of the cities of 
 London and Westminster, Your Committee have principally relied for 
 information. To the clerks at the oflices of magistrates, and to the of- 
 ficers of criminal courts, who receive informations and prepare innict- 
 ments, to experienced magistrates themselves, and to the gaolers and 
 others, who, in the performance of their duties, have constant opportu- 
 nities of observing the feelings of offenders, the Committee have 
 also directed their inquiries; their testimony has been perfectly vni- I ' 
 form. 
 
 "Mr. Shelton who has been near forty years Clerk of Arraigns at the ■ 
 Old Bailey, states, that Juries are anxious to reduce the value of pro 
 perty below its real amount, in those Larcenies where the capital pun- 
 ishment depends on value ; that they are desirous of omitting thost 
 
75 
 
 circumstaoces on which the capital punishment depends in construe^ 
 live burglaries j and that a reluctance to convict is perceptible in for- 
 
 " Sir Archibald MacdoncUd bears testimony to the reluctance of pro- 
 secutors, witnesses and juries, in forgeries, in shop-lifting, and offen- 
 ces of a like nature. He believes that the chances of escape are great- 
 ly increased by the severity of the punishments. " Against treason, 
 murder, arson, rape, and crimes against the dwelling house or person, 
 and some others," he thinks " the punishment of Death should be di- 
 rected." 
 
 " T. IV. Carr, Esq. Solicitor of Excise, a very intelligent public offi- 
 cer, gave an important testimony, directly applicable indeed only to 
 offences against the Revenue, but throwing great light on the general 
 tendency of severity in Penal Laws to defeat its own purpose. From 
 his extensive experience it appears, that severe punishment has ren- 
 dered the law on that subject inefficacious. Prosecutions and convic- 
 tions were easy when breaches of the law were subject to moderate 
 pecuniary penalties; even a great pecuniary penalty has been found so 
 favourable to impunity, that fraudulent traders prefer it to a moderate 
 penalty. The act of counterfeiting a stamp in certain cases, within 
 the Laws of Excise, weis, before the year one thousand eight hundred 
 and six, subject only to a penalty of five hundred pounds ; but in that 
 year it was made a transportable offence, of which the consequence was, 
 that the con%'ictions. which from one thousand seven hundred and nine- 
 ty-four, to one thousand eight hundred and six, had been nineteen out of 
 twenty-one prosecutions, were reduced in the succeeding years, fiom 
 one thousand eight hundred and six, to one thousand eight hundred 
 and eighteen, to three out of nine prosecutions. 
 
 " Mr. Newman, Solicitor for the city of London, speaking from thirty 
 years experience, of the course of Criminal Prosecutions in that city, 
 I informed the Committee, that he ha'd frequently observed a reluctance 
 I to prosecute and convict, in capital offences not directed against the 
 [lives, persons, or dwellings of men. 
 
 : " The Rev. Mr. Cotton, Ordinary of Newgate, has described in strong 
 ^ terms the repugnance of the Public to capital execution in offences un- 
 attended with violence, and the acquiescence even of the most depra- 
 ved classes in their infliction in atrocious crimes. 
 "Mr. ColquJioun, for twenty-seven years a police magistrate in this 
 
76 
 
 Capital, and well known by his publications on these subjects, declares 
 his firm conviction that capital punishment in the minor offences ope- 
 rate powerfully in preventing convictions; and that there is a great re- 
 luctance to prosecute in forgery, shoplifting, larceny in the dwelling 
 house, burglary without actual entry, horse-stealing, sheep stealing, 
 cattle stealing, framebreaking, housebreaking in the day time, robbery 
 without acts of violence, and other minor offences, now subject to the 
 punishment of death. According to the testimony of this intelligent 
 observer, the public mind revolts at capital punishment in cases not 
 atrocious. 
 
 " Mr. Newman, late keeper of Newgate, and connected with the ad- 
 ministration of justice in London for forty years, gave testimony to the 
 same effect. 
 
 " Mr. Bassil Montagu stated a fact of .the most striking nature, im- 
 mediately applicable only to one offence, but showing those dispositions 
 in the minds of the public which must produce similar effects wherever 
 the general feeling is at variance with the provisions of criminal law. 
 From the year one thousand seven hundred and thirty-two, when em- 
 bezzlement of property by a bankrupt was made a capital offence, there 
 have been probably forty thousand bankruptcies ; in that period there 
 have been more than ten prosecutions, and three executions for the ca- 
 pital offence, and yet fraudulent bankruptcies have become so common 
 as almost to be supposed to have lost the nature of crime. 
 
 " Mr. Hobler, clerk to the Lord Mayor and to the sitting magistrates 
 in London for thirty years, stated the anxiety of prosecutors to lower 
 the value of goods stolen ; and has observed many cases of forgery, in 
 which, after the clearest evidence before the magistrate, the Grand Ju- 
 ry has thrown out the Bill for some reason or other, where the magis- 
 trate had no doubt. The same solicitude to reduce the value of parti- 
 cles privately stolen in shops and dwelling houses, has been remarked 
 by Mr. Payne, clerk to the sitting magistrate at Guildhall ; by Mr. 
 Yardley, clerk at the office in Worship-street, who has observed a dis- 
 inclination to prosecute in all capital cases, except murder; and who 
 says, that in larcenies he has often heard prosecutors, especially fe- 
 males, say, " I hope it is not a hanging matter and by Mr. Thom- 
 son, clerk at the office in Whitechapel, who represents it as common 
 for prosecutors in larcenies to ask, can this be put under forty shil- 
 lings ?" 
 
77 
 
 Mr. Alderman Wood, a Member of the House, an active magistrate, 
 md two successive years Lord Mayor of London, has strongly stated 
 ihe unwillingness of shopkeepers and others to prosecute, the number 
 )f offenders who, during his mayoralty, owed their escape to this cause ; 
 iBd his decided conviction, that if the capital punishment was taken 
 iway, the reluctance to prosecute would be greatly abated. 
 
 " Mr. IVilkinson, a merchant in London, stated a case of property, to 
 he value of one thousand pounds stolen from him, where he was de- 
 erred from prosecution by the capital punishment ; and expressed his 
 jelief that a similar disposition prevailed among persons of the like 
 condition and occupation with himself. 
 
 " Mr. Josiah Conder, bookseller, Mr. Joseph Curtis, currier, Mr. 
 Wendover Fry, type-founder, and Mr. John Gaun, a merchant and shoe 
 manufacturer, stated instances in which they were prevented by the 
 capital punishment from prosecuting offenders, whom they would have 
 brought to justice if the punishment had in their opinion been more 
 proportioned to the crime. They also declared, that there is a gene- 
 ral disinclination to prosecute among the traders of the city of London, 
 or to convict in thefts without violence, and in forgeries. 
 
 " <Si> Richard Phillips, a bookseller in London and once sheriff, as well 
 is often a juror, has in these several capacities observed the same facts. 
 Mr. Richard Taylor, a common council man, prosecuted some men 
 for breaking into his printing-office and stealing some property out of 
 it, for which they were transported, but whom he would not have pro- 
 secuted if he had not previously ascertained that the connection of the 
 printing-office with the dwelling house was not such as to make the 
 ict a capital offence. 
 
 I " Mr. Richard Martin, a Member of the House, informed the Com- 
 mittee, that the punishment of death prevented prosecutions in Ireland 
 for horse, cattle, and sheep stealing, for privately stealing in dwelling 
 bouses and shops, and in general for all larcenies without violence. 
 Though the extensive estate, of which he is proprietor, be almost laid 
 A aste by sheep stealing, he has been prevented from prosecuting by the 
 punishment of death. If the punishment were reduced to transporta- 
 tion, he would certainly prosecute the offenders to conviction. He 
 has no doubt that his estate would be better protected if the law were 
 more lenient, and that the reduction of the penalties of the law would 
 
promote the security of property throughout the province of Con- 
 naught. 
 
 " Mr. James Soaper, of Saint Helen's Place, Mr. Ebenezer Johnson, 
 of Bishopsgate-street, ironmonger, Mr. Baker, of the Tower, Mr. Lew- 
 is, a retired merchant, and Mr. Garret, an insurance broker, bore tes- 
 timony to the general repugnance to prosecution which arose from ca- 
 pital punishment ; some of them mentioned instances in which they 
 had been deterred by that consideration from bringing offenders to jus- 
 tice. Mr. Garret said, that as far as his observation, there was not one 
 in twenty who did not shudiier at the idea of inflicting the capital pun- 
 ishment in cases of forgery. Messrs. Frederic and fViltiam Thornhill, 
 hardware men, mentioned cases of theft in which they had forborne to 
 prosecute on account of the punishment of Death. The former added, 
 that he found it to be an almost universal sentiment among his neigh- 
 bours and acquaintance, that excessive punishment tends very greatly 
 to the production of crime ; that he knows many persons who have been 
 great sufferers by thefts in shops and dwelling houses, and who declare 
 that if the punishment of such offences had been any thing less than 
 death, they would have regarded it as hiL'hly criminal in themselves to 
 have forborne prosecution, which they had felt themselves compelled 
 to abstain from in every instance on account of the punishment, and 
 must continue to act on the same principle of forbearance till there was 
 an amendment in the law He also informed the Committee, that from 
 his knowledge of a great variety of cases, he was convinced the more 
 lenient punishment would more effectually prevent forgery. 
 
 " Mr. Collins and Mr. Crowther, considerable and very respectable 
 traders in Westminster, gave evidence which the Committee consider 
 as of peculiar value. Mr. Collins has suffered both from larcenies and 
 forgeries, and was restrained by the state of the penal law from bring- 
 ing the offenders to justice, which he would otherwise have taken the 
 greatest pains to do. He thinks that the laws of God do not permit 
 life to be taken away for mere offences against property ; and that 
 among his friends, many of whom are traders in London aud West- 
 minster, he does not know a single exception from concurrence in 
 such sentiments. Mr. Crowther stated, that no porter had left their 
 establishment for twenty years for any other cause than theft ; that li 
 prosecution had taken place in one instance, and had terminated ia 
 conviction and condemnation. ''The pain and anxiety," he adds, 
 
79 
 
 " occasioned by that event, until we obtained for him the Royal Mer- 
 cy, none can describe but ourselves ; which made us resolve never to 
 prosecute again for a similar offence." The general opinion of the 
 traders in London and Westminster is the same with his own. He 
 declared, that if he received a forged bank note, he should be prevent- 
 ed from prosecution by the punishment of death, and that if the pun- 
 ishment were less than death, he should undoubtedly consider it as his 
 absolute duty to bring the offender to justice. He believes that nine 
 tradesmen out of ten agree with him. 
 
 " Mr. Stephen Curtis, a leather faetor in London, stated several cases 
 of forgery, fraudulent bankruptcy, and larceny, where the persons 
 injured declined to prosecute from apprehension that the offenders 
 might suffer death ; this is the general opinion of the traders of Lon- 
 don, though in the opinion of this witness, scarcely a shopkeeper from 
 Cornhi'.l to Cliaring-cross, who does not suffer from shop-lifting. 
 
 " Mr. Jacob, who has lately travelled through England on business^ 
 and Mr. Jennings, for some time a shopkeeper near Bridgewater, 
 gave some evidence tending to show that the general sentiments of 
 Traders in the country were, on capital punishments, the same which 
 the Committee had such ample reason to consider as the prevalent 
 opinion of the same valuable class of persons in the Metropolis. 
 Mr, Jennings observed, that these opinions prevailed among farmers 
 as well as shopkeepers, and that the capital punishment prevented 
 prosecutions for horse, cattle and sheep stealing, as well as from pri- 
 vate stealing in shops and dwelling houses, and in constructive bur- 
 glaries. 
 
 " Mr. Joseph Harmer, who has practised for twenty years as solicitor 
 at the Old Bailey, gave a testimony which the Committee cannot but 
 recommend to the most serious consideration of the House. In the 
 course of his practice he had confidential communication with at least 
 two thousand capital convicts, and may be presumed to have as good 
 means of understanding their temptations, their fears and their hopes, 
 as any individual in the kingdom. He is now much employed by 
 prosecutors, and from intercourse with them, as well as by former ob- 
 servation of their conduct, has the amplest means of knowing the in- 
 fluence which capital punishment has on their disposition, to aid and 
 enforce the execution of the laws. The Committee must also add, that 
 he appeared to them a man of sagacity, as well as of a consrientious 
 
 \ 
 
80 
 
 and humane character, whose opinions on this subject are entitled to 
 much consideration. Every part of his evidence is so important, that 
 they find it difficult to select particular facts as worthy of greater no- 
 tice. He informed the Committee, that he knew many instances of 
 persons injured by larcenies and forgeries, declining to prosecute on 
 account of the punishment; that the same consideration strongly dis- 
 inclines many persons to serve as jurors at the Old Bailey, and induces 
 them to bribe the summoning' officer not to summon them ; and that 
 he has seen juries influenced, as he believes, by the severity of the 
 punishment in numerous capital cases, but especially in forgeries, give 
 verdicts of acquittal where the proofs of the prisoner's guilt was per- 
 fectly clear. Old professed thieves, aware of the compassionate feel- 
 ings of juries, are, he says, desirous of being prosecuted on capital in- 
 dictments rather than otherwise. " The present numerous enactments 
 to take away life appear to me wholly ineffectual ; but there are pun- 
 ishments, which I am convinced a thief would dread, namely, a course of 
 discipline totally reversing his former habits ; idleness is one of the prom- 
 inent characteristics of a professed thief ; put him to labour; dabauche- 
 ry is another quality, abstinence is its opposite ; apply it ; company 
 they indulge in, they ought therefore to experience solitude : they are 
 accustomed to uncontrolled liberty ef action, I would impose restraint 
 and decorum : were these my suggestions adopted, I have no doubt 
 we should find a considerable reduction in the number of offenders." 
 He states, that " he has often seen juries reduce the value of things 
 stolen, contrary to clear proof ; there is no reluctance to prosecute or 
 convict, in his opinion, in murder, arson, burglary in its original sense 
 of nocturnal housebreaking, highway robbery, with vio'?nce and mur- 
 derous attacks on the person. The thieves observe the sympathy of 
 the public ; it seems to console them, and they appear less concerned 
 than those who witness their sentence. Certainly, the general feeling 
 does not go along with the infliction of death in the case of crimes unac- 
 companied by violence; there are very few advocates for the gene- 
 rality of the present punishments ; these punishments rather tend to 
 excite the public feeling against the Criminal Laws." 
 
 " Much of the above evidence sufficiently establishes the general dis- 
 inclination of traders to prosecute for forgeries on themselves, or to 
 furnish the Bank of England with the means of conviction, in cases 
 where forged notes are uttered. There is no offence in which the in 
 
81 
 
 fliction of death seems more repugnant to the strong and general and 
 declared sense of the public, than forgery ; there is no other in which 
 there appears to prevail a greater compassion for the offender, and 
 more horror at capital executions. 
 
 " In addition to the general evidence above stated, to notorious facts, 
 and to obvious conclusions of reason, Your Committee have to state 
 the testimony of some witnesses of peculiar weight, on the subject of 
 Forgery. 
 
 " Mr. John Smith, a Member of the House, and Banker in London, 
 stated, that he knew instances where prosecutions for private forgeries 
 were relinquished on account of the punishment, and had no doubt 
 that if the punishment was less, prosecutions would have taken 
 place. 
 
 " Mr. Burnett, also a Member of the House, and a Banker in London, 
 is of opinion, that capital punishment goes extremely to discourage 
 prosecutions in forgery ; he knows many instances of this, scarcely a 
 year passed without something of the kind; he is of opinion that the 
 majority of private forgeries pass unpunished, on account of the seve- 
 rity of the punishment. The punishment of death tends, in bis opin*- 
 ion, to prevent prosecution, and to increase the crime. 
 
 " Mr. J. F. Forster, a Russia Merchant, and Mr. E. Forster, a Bank- 
 er in London, gave some remarkable examples of the repugnance to 
 prosecute in forgery. In one, by the connivance of the prosecutor ; 
 a person who was introduced to the magistrate as a friend of the pri- 
 soner's, desired to see the forged cheque, snatched it away, and threw 
 it into the fire ; a mode of avoiding prosecution which, from other 
 parts of the evidence, does not seem to be uncommon. In another, 
 a forgery to the large amount of fifteen hundred pounds, where the 
 forger and the utterer were both in custody, the prosecution was re- 
 linquished merely because the offence was capital ; had the punishment 
 been ever so severe, short of death, no endeavour would have been 
 made to save the offenders In the opinion of Mr. E. Forster, more 
 than one half the private forgeries which are committed escape prosf- 
 cution on account of the severity of the law ; he added an exanii)le 
 of the like sentiments, in the offence of stealing in a dwelling house, 
 which the Committee consider as remarkable, because it occurred in 
 tlie officers of a public institution, who usually allow themselves to be 
 VSsi influenced by their feelings than individuals j a committee of a 
 
82 
 
 public institution, whose house had been robbed, would not engage in 
 the prosecution unless the goods were valued under forty shillings. 
 In this committee were persons of respectable condition in almost all 
 the occupations which are most liable to loss by forgeries and thefts. 
 
 " Mr Fry, a Banker in London, mentioned four cases of prosecution 
 for forijery which were prevented by the capital punishment, in one 
 of which the party injured swallowed the forged note, that he might 
 not be compelled to prosecute. Mr. Fry explicitly stated, what is 
 indeed implied in the evidence of the preceding witnesses, that as a 
 banker, he should consider his property as much more secure if the 
 punishment of forgery were mitigated to such a degree that the law 
 against that offence would be generally enforced. In nine cases out 
 of ten of forgery which he has known, there has been an indisposition 
 to prosecute. 
 
 " Dr. Lushington declared that he knew, that in the minds of many 
 persons there is a strong indisposition to prosecute, on account of the 
 severity of the punishment ; and that he had heard from the mouths of 
 prosecutors themselves, who have prosecuted for capital offences, 
 where there was a danger of the person's being executed, the greatest 
 regret that they had so done ; and many times they have expressed a 
 wish, that had they been able to have foreseen the consequences, they 
 would never have resorted to the laws of their country. He also re- 
 lated the case of a servant who committed a robbery upon him ; the 
 man was apprehended, and his guilt was clear ; but Dr. Lushington 
 " refused to prosecute, for no other reason, but that he could not in- 
 duce himself to run the risk of taking away the life of a man. 
 
 " Mr. Charles Attwood, a manufacturer of window glass at New- 
 castle, and a seller of window glass in London, had observed a very 
 considerable indisposition to prosecute in capital cases, among the 
 traders of London generally ; and conceives that this reluctance would 
 abate, if the punishment were mitigated to something less than death. 
 
 " Mr. Isaac Lyon Goldsmid,a broker to the bank, and to merchants, 
 ■whose experience in the transactions of bankers is very extensive, en- 
 tertains no doubt, that the punishment of death has a tendency gene- 
 rally to prevent prosecution, and thinks that evidence to that effect 
 might be discovered in hundreds of instances. A servant of his own 
 committed a very aggravated forgery upon him. She confessed her 
 guilt to the magistrate before whom she was taken j but it appearing 
 
83 
 
 that if she was prosecuted at all, it must be capitally Mr. Goldmid 
 declined all further proceedings, and she was liberated. In the next 
 family in which she became a servant, she committed another capital 
 felony ; and again the severity of the law appears to have been her 
 protection. 
 
 " Mr. Daniel Gumey, a banker in the County of Norfolk, declared 
 his own reluctance, and had observed a similar reluctance among many 
 bankers and traders in the country to prosecute in cases of forgery, in 
 consequence of the severity of the law. The dread of being instru- 
 I mental in inflicting death had, with himself, and to ins knowledge with 
 others, operated as a protection to the criminal. In illustration of his 
 sentiments, he mentioned the case of a man who was in the habit of 
 committing forgery, " and was not prosecuted in consequence of the 
 capital punishment." M?: Garney considers that " his property as a 
 banker would be more secure, if the punishment were not so severe, 
 because there would be more inclination to prosecute." He also sug- 
 gested, that if in every town of sufficient importance, an agent was in- 
 vested with full authority from the Bank of England, to stamp the for- 
 ged notes that were presented to him, it would be a considerable check 
 to their circulation. — In this opinion Mr. William Birkbeck, a banker 
 in the West Riding of York, fully concurred ; conceiving that if an 
 agent of this kind were authorized to put a mark upon such notes, in- 
 dicating that they were forged, it would probably throw them back on 
 the original issuer so early, as to show him the futility of attempting to 
 issue others of a similar description." 
 
 -«9IIII1#>IIII"=- 
 
 MR. ROSCOE S VIEWS ON CAPITAL PUiNISHMENTS. 
 
 The Committee extract the following arguments, on the great subject 
 under this head, from Mr. Roscoe's very elegant and able book on 
 Penal Jurisprudence. We wish to awaken the slumbers of the 
 American people : we wish to correct the errors that are gaining 
 ground. 
 
 ON THE PUNISHMENT OF DEATH. 
 
 "If it be true, as before staged, that the proper object of human pun- 
 Ament is the reformation of the offender, it will follow, as a necessa- 
 
84 
 
 ry GOhsequence, that it is not allowable, under tny combination et 
 
 circumstances, to put a fellow creature to death. 
 
 In order to prevent the perpetration of sanguinary crimes it seems, 
 in the first place, necessary, that the legislature should shew its ab- 
 horrence of the shedding of blood, and should inculcate, in the strong- 
 est manner, a sacred regard for human life. 
 
 A sentiment of this nature, impressed upon the feelinps of a peo. 
 pie, would be more efficacious in preventing the crime of murder, than 
 the severest punishments. 
 
 Cicero calls his country "Parens communis," — what should we 
 think of a parent who corrects his child by putting him to death ? 
 
 " The case of a civil ruler and his subject," says a sensible and 
 energetic writer, is much like that of a father and his minor son. If 
 the son behave himself unseemly, the father may correct him. If 
 after all due admonitions, and corrections, the son should prove to b' 
 incorrigible, the father may expel him from his family, and he mn> 
 disinherit him; but he may not kili him. AW civil as well as paren« 
 tal punishments ought to be mild, humane, and corrective ; not vin- 
 dictive, inhuman and extirpating. They ought to be merciful, not 
 rigorous ; proportionate to the crime, not excessive ; and tend to the 
 reformation of the delinquent, but not to his destruction ; and should 
 be inflicted with reluctance, love and affection ; not with passion, hard* 
 heartedness, and asperity. The highest encomium that can be be- 
 stowed on good rulers is when we style them, tlie faUiers of their 
 subjects, and the protectors of their rights." * 
 
 It is remarkable that those persons on whom the example of capital 
 punishments is chiefly intended to operate, are usually such as have 
 manifested the most striking disregard to their own lives ; consequent- 
 ly, those upon whom the idea of the punishment ef death is likely to 
 make the least impression. A person who voluntarily places himself 
 before the aim of a pistol, cannot be supposed to be deterred from 
 that act by any apprehension of his life from remoter consequences. 
 
 It has, therefore, been proposed to place the murderer in such i 
 situation as should effectually prevent a repetition of his crime ; where, 
 instead of escaping from ignominy and remorse by immediate death, he 
 
 ' Essays oii CapUal Punidiments. Philadel. 1811. Sepubliihed by Basil Mm- 
 fogu, Eiq. tn bis CoUcelion of Opinions on the Ftetu^iment of DtalK- \o\. iii. 
 p. 169. 
 
may exhibit, by a long course of humiliation and repentance, the fatal 
 ^nseqiiences of his guilt. 
 
 The eflects produced by such an example might be advantageous, 
 uiihout being counteracted by other considerations. Whether the 
 jjiectators who attend an execution, may be deterred from similar 
 crimes by witnessing: such a catastrophe ; or whether they may be- 
 come in some degree hardened against the feelings of humanity, by 
 the frequent recurrence of such spectacles, may at least be doubtful 
 but a murderer, under restraint and correction for his crime, is an ob- 
 
 t, the sight of which, combining Rt once the enormity of the of- 
 
 nee with the dignified forbearance of the law, must always be fa- 
 vourable to the best interests of the community. 
 
 Hence there is reason to presume, that punishments of this nature 
 would tend more effectually to the prevention of crimes, than the dread 
 of immediate death ; in which scene the crirainal is th^ chief actor, 
 and not unfrequently appears with considerable eclat. In fact offen- 
 ces that subject the perpetrators to death are committed no where more 
 frequently than at executions ; and the horrible spectacle of the expo- 
 sed body of a murderer seems to be only the prelude to similar crimes. 
 
 But if legislators and writers of great eminence have entertained 
 considerable doubts, both as to the right and the expediency of capital 
 punishment, even for the most heinous offences, how is it possible to 
 justify the application of it to such crimes as affect property only, and 
 that frequently to a very trivial amount .'' " Among the variety of 
 actions tliat men are daily Uable to commit, no less than two hundred 
 have been declared by act of Parliament, to be felonies without benefit 
 of clergy, or in other words, to be worthy of instant death. When 
 we inquire into the nature of the crimes of which this dreadful cata- 
 logue is composed, we shall find it to contain transgressions which 
 scarcely deserve corporal punishment ; we shall find it to omit atro- 
 cious enormities ; and so to blend all distinctions of guilt, as to inflict 
 tlie same punishment upon the offender whg steals to the amount of y 
 •ew shillings in a shop, as upon the malefactor who murders his fa- 
 ther."* 
 
 Nor is it only for the actual privation of property that the punisii- 
 raent of death is provided ; even many offences whicli seem to be 
 
 ' Speech of Sir John AnitrutheriD the House of Comraonii, 1811. 
 
8d 
 
 merely legal trespasses, are included by the legislature in the black 
 catalogue of capital crimes. Such offences are undoubtedly the pro- 
 per objects of a correctional police, but surely no humane or conside- 
 rate person can for a moment admit that they ought, in a well regulated 
 community, to be punished with death. " It must be owned," says 
 Blackstone, "that it is much easier to extirpate, than to amend man- 
 kind ; yet that man must be esteemed both a weak and a cruel sur- 
 geon, who cuts off every limb, which through indolence or ignorance, 
 he will not attempt to cure." 
 
 " It cannot be too strongly inculcated," says a noble and excellent 
 writer on this subject, " that capital punishments, when unnecessary, 
 are inhuman and immoral. Sensibility sleeps in the lap of luxury, 
 and the legislator is contented to secure his own selfish enjoyments 
 by subjecting his fellow citizens to the miseries of a dungeon, and 
 the horrors of an ignominious death."* So true it is, that the most 
 cruel and unjustifiable laws are those which are intended to effect their 
 j)urpose by a sudden and decisive process ; as if the promulgater had 
 thereby freed himself from all further danger and trouble on the sub- 
 ject. " This summary way of proceeding by capital punishments," 
 says a distinguished writer of the present day, " though it may assume 
 the appearance of vigilance and zeal in the public service, is, in reali- 
 ty, too well adapted to the indolence or the pride of men, in making 
 laws which tliey are themselves under little temptation to violate. It 
 presents itself readily to the coarsest understanding, and you fly to it 
 with little reflection, though upon a collective view of all the circum- 
 stances which ought to regulate the measure, it will be found to re- 
 quire the greatest. "t 
 
 Had it not been from the influence of examples handed down to 
 the present times from ages of the darkest ignorance, it would scarcely 
 be possible to conceive how we could tolerate laws that involve such 
 a great variety of offences, so different in their nature, in one common 
 punishment ; not only with the most flagrant injustice, but with the 
 greatest danger to every member of the community, whose life is thus 
 placed in a constant competition with objects of the most trivial and 
 worthless description, and is liable to be sacrificed to the security of 
 
 * Edtns Ptnal Law, pp. 237, 291. 
 
 \ Characters of C. J. Fox,hij Philopatris Varvicemis. Vol. ii p. 468. 
 
87 
 
 uiTenders, against the consequences of very inferior, and comparative- 
 ly unimportant, crimes. To commit a murder, or to free a person 
 from an arrest ; to burn a dwelling house ami its inhabitants, or to 
 burn a hatfstack; to commit a parricide, or to obstruct an officer of 
 th t revenue in the seizure of prohibited goods ; to break into a dwel- 
 ling house at midnight, or to cut down, or otherwise destroy a tree in 
 a garden ; to poison a family, or to maim or wound a cow — Is it pos- 
 sible to conceive, that if ein enlightened and humane legislature had 
 undertaken to form a code of laws for a civilized country, they could 
 liavc adopted such measures as these, which are not less dangerous to 
 the mselve*, than intrinsically extravagant and unjust; and which might 
 render it indispensable to the life of the poor wretch, who is cutting a 
 e in a plantation, to murder the owner, who may unwillingly have 
 ; his power to give that evidence which may take the forfeited life 
 of the offender ? 
 
 ■ ich in fact is the present state of the criminal law in this country, 
 ^ it seems to be universally admitted, that tf it were to be carried 
 nti) strict execution, it would form the bloodiest system of legislation, 
 )y which any nation, ancient or modern, ever punished itself. Instead 
 hei efore of attempting to vindicate our present institutions of criminal 
 u\v upon any principle of reason and justice, it is usual for those who 
 vi-,h for their continuance, to contend that they are not intended to be 
 arried into effect, but are only meant to furnish the judicial authori- 
 ies with sufficient power to include every description of crime, and> 
 ,t the same time, to allow such an exercise of discretion, as may give 
 o a severe law a mild and temperate execution. To such an extreme 
 las this idea been carried, that a very popular modern writer* has 
 rected upon it a system of legislation, which he denominates the 
 • Law of England,'' which as he informs us, " by the number of 
 tatutes creating capital offences, sweeps into the net every crime, 
 ■rhich under any possible circumstances, may merit the punishment of 
 leath ; bid when the execution of this sentence comes to be deliberated 
 'pon, a small proportion of each class are singled out, the general 
 haracter, or the particular aggravations of whose crimes, render 
 hem fit examples of public justice ; and by this expedient, few actu- 
 ally suffer death, whilst the dread and danger of it hang over the 
 
 " Dr. Paley. 
 
crimes of tmni/J" Tliis attempt to represent as a preconceived and , 
 regulated system of legislation, a state of our judicial concerns, which i 
 has arisen from the mere impossibility of carrying such sanguinary 
 measures into effect, is not less repugnant to the truth, than it is fo- 
 reign to the ideas of our ancestors ; who, however they might err on 
 the side of severity, were certainly sincere in their hostility against 
 crimes, and intended their enactments should be carried into effect. 
 The fallacy of this statement has been fully shewn by Sir Samuel 
 Romilly,* by whose enlightened efforts and indefatigable exertions, 
 some of the most cruel and obnoxious of these statutes have been re- 
 pealed.t It is not however by the success that has attended his la- 
 bours, that we must estimate what is due from the community to this 
 real patriot and distinguished senator. The reforms effected by him, 
 bear indeed a small proportion to the enormous mass of sanguinary 
 enactments which disgrace our statute book ; but the maxims of legis- 
 lation which he has laid down, and the sound principles for which ht 
 has contended, apply to the whole system ; and will, it may confident- 
 ly be hoped, eventually produce such alterations as may remove from 
 our judicial code, the imputation of cruelty on the one hand, and pre- 
 vent the impunity of the criminal on the other. | 
 
 In fact, it is in this ill-judged lenity, or rather inefficacy of the law,. 
 
 * In his tract entitled " Observalions on Ihe Criminal Law of England," as weif 
 as in his speeches in parliament. 
 
 i In particular, the 8th Eliz. c. 4. by which larceny from the person above th« 
 value of ltd. was made felony without benefit of clergy, and the. English and 
 Irish statutes which punished the stealing from bleaching grounds with death, 
 lu the session of 1812, an act was also passed to repeal the statute of Eliz. which 
 made it a capital offence for soldiers or mariners to wander or beg without a' 
 pass. 
 
 tMay this expectation be accomplished ! for, since the above was written, the 
 world has been deprived of the illustrious individual to whom it relates, and can 
 DOW only avail itself of the lessons which he has left for its improvement ! May 
 we not, however, venture to hope, from the sincere sympathy and universal 
 grief which this event has occasioned, that the cause he so warmly espoused, 
 and the sentiments he so forcibly eipressed, are deeply felt by the nation at 
 large And that his loss will, as far as possible, be repaired by an increased de- 
 termination on their part to promote the great and beneficent objects which be 
 so faithfully pursued Such a result of his labours may delight his sjiirit, and 
 add lu his happiness in the region; of the blest. 
 
89 
 
 that we discover one great cause of the extraordinary profligacy and 
 depravity of the present day. Offenders of every description, harden- 
 ed and instructed in wickedness, are acquitted by our courts and libe- 
 rated from our gaols, to renew their depredations on the community. 
 Such is the inevitable consequence of enacting a punishment wholly 
 inapplicable to the crime, that the public suffers, whilst the criminal 
 escapes. He has indeed been meshed in the great net of the law, 
 but this net retains scarcely one in a thousand,* and he has escaped 
 so often, that he has little fear of encountering another trial. Such 
 »s the acknowledged barbarity of our laws, and such the more enlight- 
 ened and humanized state of the public feeling, that they are no long- 
 er compatible with each other. Accordingly we perceive on every 
 hand indications that a further perseverance in our present track will 
 not long be possible. Whilst our institutions continue in their present 
 form, persons injured frequently will not prosecute — witnesses will not 
 attend — juries will not convict, and judges cannot condemn. t In the 
 mean time, guilt and rapacity raise their heads with renewed insolence, 
 and brave the ministers of law on the seat of justice. Such a state 
 of things cannot, it is evident, admit of delay. It has been proposed 
 by many excellent men, that attempts should be made to apportion 
 panishments to offences, so that every crime should have its appro- 
 priate penalty ; but, to say nothing of the acknowledged and nume- 
 roBS difficulties which must attend the completion of such a task, if 
 the public are to wait till the endless diversity of opinion to which 
 this subject would give rise be reconciled, all prospect of redress 
 would be hopeless. Let it not however be imagined, that the public 
 depredator, the hardened criminal, is to be suffered to persist in his 
 
 • It was stated in the House of Commons, in the debate on the shop-lifting 
 lud canal bills (Feb. 1810) that out of 1872 persons who had, in the course of 
 even years, been committed to Newgate, for stealing in dwelling bouses, only 
 me was executed. 
 
 t " At Carnarvon Sessions (1813) J. Jones, a drover, was tried for uttering 
 "orged bank notes, and, notwithstanding thirty-one witnesses established the 
 barge, and Mr. Glover, inspector to the Bank of England, traced thirty-nine 
 otes to have been paid by the prisoner, the jury returned a verdict of noJ guilly. 
 leU day, the same prisoner was indicted for having forged notes in his posses- 
 iOD, and the jury again returned a verdict of not guilty." — The records of our 
 'oiBTts of Justice abound with similar instances 
 
 M 
 
90 
 
 guilt. Let his hopes of impunity be dispelled, and his fears be awa- 
 kened by buildings rising in every county and every city of the king- 
 dom, calculated to repress his enormities, to subdue his obstinacy, to 
 form him to new habits and better dispositions, to render him sensible 
 of his misconduct, and enable him to provide for himself by honest 
 industry : — let the Courts of Justice, instead of dismissing offenders, 
 to commence a new career of crimes, deliver them over to these no 
 less effective than truly benevolent institutions ; vvhere, as has already 
 been shewn by ample experience, there is every reason to expect that 
 a great majority may be redeemed from their guilt, and restored to so- 
 ciety ; or, if this should not be found in all cases practicable, the com- 
 munity at large will derive, from the very efforts that may be made 
 for this purpose, the inestimable benefit of being freed from the de- 
 predations of the innumerable hordes, who are at present its annoy- 
 ance and its dread, and the sacred delight arising from the performance 
 of the first of christian duties. 
 
 -«»imi^iiiii»- 
 
 NEW-YORK SENATE. 
 
 The following Report has been laid before the New- York Senate, by 
 the Hon. Samuel M. Hopkins, within a few days past. It looks 
 well for the work of reform. , 
 
 Report of the Committee on the Criminal Law, and the employment 
 of convicts on the catials. 
 
 Mr. Hopkins, from the select committee to whom was referred so 
 much of the speech of his Excellency the Governor as relates to the 
 criminal law, and the employment of convicts on the canals, reported 
 as follows, to wit : 
 
 That the particular points and questions in the criminal law, which 
 his Excellency has mentioned, and to which therefore, the attention of 
 your committee has been required, appear to be the following : 
 
 1. Our experiment of a mild system of punishment, intended to 
 prevent crimes, and reform criminals, and the result of that experi- 
 ment : 
 
 2. The doubt expressed whether we have not, in our anxiety foi 
 reformation, neglected the superior importance of prevention : 
 
 3. The improvements suggested to be made, by the moral classifi- 
 
9t 
 
 dtion of offenders ; by the adoption of solitary conSnement ; by the 
 establishment of separate prisons for those wlio are doomed to severe 
 punishment; by a graduation of punishments in solitary cells, and 
 finally by abridging the duration of imprisonment. 
 
 The consideration of these subjects has led the committee to exa- 
 diine our whole system of punishment, whether considered as a means 
 of prevention or of reformation ; and the question of imprisonment 
 jn particular, has led them to consider the prisons, and the means and 
 objects of confinement in them, with the actual treatment of prison- 
 ers and its effects ; whether we have such prisons as are sufficient and 
 • proper ; if not, whether we can and ought to build others ; what will 
 be the expense, and what ought to be the discipline observed in them ; 
 finally, what other punishments can, with a proper regard to the state 
 of public opinion, be now adopted. 
 
 For the more perfect understanding of these subjects, it seemed 
 useful to examine the authentic history of our state prison system 
 from the beginning ; as it is contained in our legislative acts and re- 
 ports, and in the reports and proceedings of successive legislative 
 committees, and special commissions, and in the reports of the treasury 
 and the detailed statements of the inspectors and officers of the prisons. 
 Such documents, more especially for the last twenty years, have been 
 examined by the committee, who are of opinion that they ofifer many 
 results which cannot fail to be instructive. 
 ]/ It appears that since the year 1796, the whole amount of our appro- 
 priations for the building and repairs of the two state prisons has 
 I been $535,189 83 
 
 li And the total amount of expenditure for the support of 
 [t« the prisons and incidental expenses, is 977,732 64 
 
 Making in all, $1,512,922 47 
 
 The total number of convicts committed, has been 5,069 
 )f which number more than half have been pardoned, 
 that is 2,819 
 Of the whole number of convicts, considerably less than one half 
 jre natives of this state, and nearly one third are from foreign cotin- 
 ries; the rest, of course, are from the United States. 
 The average number of prisoners from the returns of the last six 
 
92 
 
 years, is 745. By the last returns the total present number in both 
 prisons is 817, which is larger tiian that of any former year. 
 
 The actual expense of the crimineils maintained in these prisons has 
 been estimated, according to an average of the last six years, for the 
 prison in New- York, and of three years for that at Auburn, [the latter 
 being a recent establishment,] and the committee calculate it as fol- 
 lows : 
 
 The New- York prison and repairs, has cost $253,346 
 Auburn do 281,843 83 
 
 535,189 83 
 
 On which sum, to cover interest, repairs, and insurance, the charge 
 
 ought to be 10 per cent per annum • say 53,518 98 
 Average expense per annum of transporting convicts to 
 
 prison, 9,704 
 
 do. the expenses of sheriffs y,Si50, suppose half 
 
 for this object, 4,625 
 
 do. do of district attornies. N. B. As 
 
 they have been paid the last three years by the coun- 
 ties, the average of those years is taken in a due 
 proportion to the three previous years, compared 
 with the sheriff's bills, f 13,933 
 
 Suppose half for this object, 6,966 50 
 
 Salaries of officers at the New- York prison, 12,989 67 
 
 Expense of guard at do. 7,531 33 
 All other expenses, [under this head come support and 
 
 clothing,] 22,948 2S 
 Collective amount of the three last items at Auburn, 
 
 on an average of three years, 14,187 74 
 
 ' Total, .<5' 132,471 50 
 
 Which, divided by 745, the average number of prisoners, makes 
 about .$177 81 per annum, as the expense of each prisoner. 
 
 For a few years after the first establishment of our state prison, the 
 institution seems to have realized all the most sanguine hopes of its 
 humane projectors. The name of it, inspired some dread among 
 criminals, and its government was conducted with a degree of zeal 
 and attention which often gives flattering success to new institutions, 
 
93 
 
 but which can hardly be expected to last always. Accordingly in the 
 report of 1 803, we find that the labour of the convicts came within 
 a small amount of the expense of their sustenance, and the inspectors 
 express an opinion, " thai no penal system in any state was less ex- 
 pensioe, or more fully answered the intended purpose." But this re- 
 port contains the first ominous intimation that " there will soon be a 
 want of room." 
 
 For eighteen successive years since that time, the state prison re- 
 ports exhibit a distressing struggle against embarrassments and diffi- 
 culty of every kind. They state the overwhelming number of con- 
 victs ; their profligate and abandoned character ; the impossibility of 
 making their labour maintain them ; pecuniary embarrassment in the 
 affairs of the prison ; enormous demands upon the public treasury, 
 without the intermission of a year ; new and fruitless endeavors to 
 make labour productive ; the fearful progress of the prisoners in cor- 
 rupting one another ; and finally, fires and dangerous insurrections. 
 The committee, in order to justify this general description, crave 
 leave to go a little more into detail, and to quote particular examples, 
 to justify their assertions from the official reports contained in your 
 journals. 
 
 In 1804;, the inspectors and agent mention a destructive fire; losses 
 by bad debts ; pecuniary embarrassment, and a balance for the sup- 
 port of the prisoners, of eleven thousand dollars beyond the produce 
 of their labour. 
 
 In 1805, the number had greatly increased ; the prisoners had cost 
 more and earned less, than the preceding year, and of course the 
 balance against their labour was increased. 
 
 In 1806, the officers complain that more room will be wanted. 
 They state that the propensity to vice is much increased by indiscrim- 
 inate confinement ; and that " lessons of infamy," are inculcated, 
 and little reformation is seen ; and they recommend that no person 
 sentenced for less than five years, be sent to the state prison. 
 
 In 1807 and 1808, the vices of the system seem to have developed 
 themselves more fully. The number of prisoners was so great as to 
 crowd the hospital with sick, and more than 20,000 dollars was want- 
 ed, beyond their labour, for their support. The report suggests the 
 benefit of solitary confinement in the several counties, and complains 
 of the great number of convictions which were actually cases of second 
 
94 
 
 offences, though not known to the court to be so at tlie time of trial. 
 About this time, necessity iutrotluced the regular practice of granting 
 parduns to so many, as to make the total number of discharges equal 
 to the commitments, and this has continued to the present time. 
 
 In 1809, was the first suggestion of another state prison in the inte- 
 rior of the state. 
 
 In 1810, the agent complains that the prisoners are so numerous 
 that they cannot be employed to advantage, and yet in this year 1 30 
 pardons were granted ; the number of convicts received was 171. 
 
 In 1812, the report pressingly urges the evil of crowding so many 
 convicts together ; and remarks that the oldest and greatest offenders, ' 
 corrupt and demoralize the younger, and again urges the necessity of 
 another state prison. 
 
 In 1813, another fire. ' p 
 
 In ISli, it is stated many are committed for second and third offen- 
 ces ; an account is given of the alarm of the citizens at the semi- * 
 annual visit of the judges, when forty or fifty of the best prisoners are *' 
 usually recommended for pardon, and of course sent back into so- 
 ciety. ' 
 
 In 1815 and 1816, the number of convicts continued to increase; " 
 and there is renewed urgency to have the bounds of the prison en- 
 larged, or a new one built. A suggestion is made, that there is no « 
 competent punishment for prisoners setting fire to the prison ; and ^ ■ 
 discouraging proofs are given of the hardened character of the con- ( ■ 
 victs. 
 
 In 1817, was laid before the legislature the report of Messrs. Bnrt, 
 Radcliff, and Taylor, who, by a special act, had been appointed com- 
 missioners to examine into the concerns of our state prison, will 
 liberty to visit that of Pliiladelphia. Your committee can do no 
 more than to quote a very few of the observations contained in that i 
 important and very able report. 
 
 Those commissioners represented the want of room, and the con- i 
 sequent necessity of pardon, as one of the great evils of the establish- I ; 
 raent. They consider 450 as the greatest number that can be pro- i 
 fitably employed at labour in the then prison. They mention the 
 striking fact, that of all those who had been committed for second 
 and third offences, about two-thirds had been discharged from their 
 former sentences by pardon ; and they admit that the system had 
 
 I 
 
95 
 
 failed of e/Tectiog the great object chiejly I view. Xhey describe lae 
 prisoners as mutually corrupting and being corrupted by each other, 
 and as leaving tlie prison more confuiueJ in their vicious propensities 
 than when they entered it. 
 
 In 1818, the annual report avows that the system is "far, very far, 
 from answering the end intended that humane and mild treatment 
 has seldom reclaimed the vicious, and that we must have a better sys- 
 tem, " not a mere plan of good living and of light punishment, but 
 jf dread and terror." The prisoners are described as the most 
 'abandoned and profligate of mankind,'' and it appears that of such 
 persons, the Governor was compelled to pardon and send out about 
 280, in order to make room for 300 new comers. This year there 
 was a dangerous insurrection, and a great amount of property de- 
 stroyed. 
 
 In 1819, it appears that the late law for punishing offenders within 
 he prison by whipping, had been applied in few instances with salu- 
 ary consequences. 
 
 In 1 820, Messrs. Morse, Cooper and Campbell, who, by a joint 
 ■esolution of the houses, had been appointed commissioners, presented 
 I report upon the state prison, abounding in valuable facts and ob- 
 ervations, which your committee have freely made use of. These 
 ommissioners admit that from some cause or other, " penitenliary 
 mnishments have entirely failed of producing the results originally 
 tHficipated from them and that crimes have multiplied to an alarm- 
 ng degree. 
 
 The prison reports of 1820 and 1821, do not vary essentially from 
 Jl the foregoing, in their general character. The hope is occasion- 
 Uy and benevolently expressed, that the system will hereafter be so 
 lerfected as to answer the intended purpose. But the obvious fact 
 hat it has not yet done so, is as plam from the report of 1821, now 
 ■n the table of the Senate, as from any previous document. In that 
 laper the convicts are described as " desperadoes,^' with hearts " steel- 
 d" to moral feeling ; and of such prisoners, 240 have again been let 
 oose upon society the last year, by pardon. 
 
 •It is just to observe that if the present system has failed of its ob- 
 act, that failure has not been for want of zeal and effort in the admin- 
 stration of it, directed by the wisdom and watchful care of the public 
 :ouncils for twenty-five years. It has been governed at different times, 
 
96 
 
 by persons of different religious denominations, and opposite political 
 
 parties, and by successive " agents,^' all of whom, in turn, have been 
 urged by motives of benevolence or rivalship, or the hopes of applause 
 and advancement, to give it the utmost possible success. The history 
 of their transactions is, for the most part, only a history of mortifying 
 failures and disappointed hopes. 
 
 Neither have any exertions been omitted to remedy the defects, 
 which, from time to time have been observed, and to furnish motives 
 to the prisoners for reformation. Expensive establishments have been 
 formed for their employment at labour, by which they would acquire 
 the means of an honest livelihood. Schools are established in the 
 prison ; a very worthy and pious clergyman is employed for their re- 
 ligious instruction, and rewards are reserved for the most deserving, 
 derived from part of the avails of their labour. Classifications have 
 been introduced according to their supposed moral characters ; an d 
 finally, laws have been passed to exclude from the prisons, all who 
 are convicted of small offences. Still the number of convicts is greater 
 now than at any former period, and they are described in the official 
 report, as " desperadoes," and " tJie most abandoned and 'projligate 
 of the human race." 
 
 Upon the whole view of our state-prison system as hitherto con- 
 ducted, your committee are compelled to adopt the conclusion, that so 
 far as reformation is concerned, it has wholly failed ; and not only so, 
 but that it operates with alarming efficacy, to increase, diffuse, and 
 extend, the love of vice, and a knowledge of the arts and practices of 
 criminality. 
 
 In saying this, the committee do not mean to question but there may 
 have been individual instances of persons, who have led regular and 
 moral lives after having been in the state prison. Whether any con- 
 vict of a character habitually depraved, has after his discharge afford- 
 ed evidence of a virtuous life, they have not learned, nor do they con- 
 sider such questions [though sometimes urged] as important upon the 
 present occasion. For that such cases, if they have existed, are not 
 frequent enough to become an object of attention in the enactment 
 of our Penal Code, is proven by all our experience ; and upon theory, 
 it would seem most unlikely, that a thief, a counterfeiter, or a house- 
 breaker, should be reformed in consequence of being shut up in a spa- 
 cious building, in ease and comfort, and in the society of many other 
 
97 
 
 thieves, counterfeiters, and house breakers. That a whole communi- 
 ty of intelligent men should have expected such a result, exhibits one 
 of those instances of public infatuation, of which examples are not 
 wholly wanting, but which do not the less excite our wonder when the 
 illusion is past. 
 
 The question how far this system has operated by way of preven- 
 tion, is in a great measure included in, and answered by, what has al- 
 ready been stated. But as it is not unfrequently urged, that it has at 
 least the praise of shutting out from society a large number of crimi- 
 nals who would otherwise be preying upon community, the commit- 
 tee think it right to go into some calculations, which will show, as 
 they think, that the number of convicts at liberty, is much greater 
 than that of those who are in confinement. 
 
 The entire number of prisoners who have been discharged by par- 
 don, was before stated at 2,819. But of those, it is obvious that many 
 would have been discharged by the expiration of their sentences, and 
 that from the residue a certain deduction must be made for deaths. 
 
 The annual returns do not furnish the elements, from which an aC' 
 curate calculation can be made of the number of living convicts, ac- 
 cording to the principles in use among those who calculate the prob- 
 able duration of human life : But the committee have attempted to 
 find the probable average time of the commitments for each j'ear ; in 
 doing which, they allow twenty years each for the complement of the 
 fives of those prisoners who are committed for life. 
 
 They further find, on an estimate of the deaths for twenty years 
 past, that the average number of deaths is one to every twenty-seven 
 prisoners each year, or a little less theui 4 per cent. 
 ; Estimating, therefore, the commitments of each year by their aver- 
 age duration, and deducting deaths according to the aforesaid ratio, 
 the committee calculate that the number of prisoners who ought to 
 have been in confinement on the 31st of December last, would be 
 2,080, and as no more than 817 were in fact in prison, it would follow 
 that more than 1200 are at large. That is, for two convicts who are 
 in confinement, there are three at liberty, who ought to be in prison^ 
 if there were prisons to contain them. 
 
 But to sliow more clearly the increase of our criminal population. 
 It may be interesting to estimate, if possible, what would be the num- 
 ber if the same crimes were now ponished in the state prison as for- 
 
 N 
 
98 
 
 meily. In 1307, the inspectors stated that out of 190 committed, 
 1 14 were for small offences, and such as have not of late years been 
 the subject of imprisonment in that prison. This statement is the 
 only one which the committee have found upon the subject. But if 
 the number is now supposed to be in the same proportion as then, to 
 higher offences, we shall find an additional corps of 1200, who are 
 petty offenders ; and the whole number of convicts would be about 
 3,300. But in 1807 the number of prisoners actually confined was 
 430, so that the increase since that time is more than 700 per cent, 
 while our population has only increased in the ratio of 
 
 But without including the smaller offences, it is obvious that upon 
 the present system, the punishment of those who have been actually 
 discharged by pardon for want of room, would now require two more 
 state prisons, at an expense of half a million of dollars, besides an 
 annual appropriation of more than ^100,000, in the whole, for their 
 support. 
 
 In justice to our own state it is proper to observe, that more than 
 half of our convicts are persons who come from foreign countries and 
 neighbouring states ; many of them probably attracted by the hopes 
 of abundant plunder, and some no doubt by the good reputation 
 which our state prison cannot fail to have acquired in the community 
 of felons. 
 
 What is the annual expense of supporting the convicts who are in 
 prison, has been already stated. But if we turn our attention to those 
 who are out of prison, and consider in what various ways they dis- 
 tress the community, by their theft, forgery, fraud, and violence in all 
 their forms ; harassing the toils of honest industry, and exhausted its 
 earnings ; rendering property insecure, and protection expensive ; we 
 must admit that the tax paid for the support of the prisoners, is one of 
 the least evils of the extension of criminality. 
 
 Facts that are public and notorious, confirm the committee in the 
 view they take of this subject. Our newspapers teem with relations 
 of crimes of every dye. Our cities, villages, and manufactories are 
 frequ»'ntly in flames ; and to find secreted combustibles is no uncom- 
 mon occurrence. It is understood that connected bands of horse 
 stealers and counterfeiters extend from Canada, through several parts 
 of the Union. The mails of the United States no longer afford secu- 
 rity. Felonies that affect the stability of our monied institutions are 
 
99 
 
 becoming common ; and the forgery of bank paper, is an art so per- 
 fected, as to deceive the banks. 
 
 The committee hesitate not to state their opinion, tiiat a govern- 
 ment which fails to repress such a course of criminality, fails also in 
 its highest duty — that of protection. They are equally clear in the 
 opinion, that after having for twenty-five years employed our sympa- 
 thies Eind resources for the comfort of the criminal part of society, it is 
 now our duty to look to the innocent; and that the industrious classes, 
 preyed upon by the convicts who are out of prison, and taxed for the 
 support of those who are within, and suffering from the insecurity of 
 all their means and earnings, are now fit objects of our care. 
 
 In considering a system of punishments, the committee have had 
 no doubt that the question ought to be symply, " what will be most ef- 
 fectual for the protection of society, under the given circumstances.'' 
 Punishments too severe, are to be equally avoided with those that are 
 too mild, /or they equally fail of the object. But the committee as- 
 sert the right of society to protect itself by any such means as may be 
 most efficient ; and they deny that the criminal who makes war upon 
 mankind, has in this respect -any rights, which are not subordinate to 
 the higher rights of the injured community. 
 
 Punishment is not for revenge ; and rightly considered, it has less 
 reference to the subject of it, than to the spectators. That punish- 
 ment would be most proper, which, with the least suffering and pain 
 inflicted upon the recipient, should make the strongest impression upon 
 the public mind. 
 
 But to make any impression upon the minds of either convicts or 
 the public, there must be suffering ; and to make any adequate im- 
 pression, such suffering as will excite feelings of terror: and the 
 highest and best purpose of punishment is only then well answered, 
 when the punishment inspires the minds of observers, especially of 
 youth, whh a salutary horror of the consequences of criminality. 
 
 But whatever may be the individual opinion of the committee, they 
 have borne in mind that nothing can be made effectual, which the pub- 
 fic sentiment does not sanction. They have further considered the 
 necessity of putting an end to that wasteful course of expenditure, 
 which for so many years has exhausted the resources of the state up- 
 on prisons and prisoners ; and they have concluded, that more per- 
 haps, cannot usefully be done at present, than to begin a reformation 
 
100 
 
 which future legislatures may in their wisdom perfect, as time and ex* 
 perience shall enable them. 
 
 The most important alteration which they have to recommend, is 
 the abandonment of labour as an engine of punishment, and the sub- 
 stitution of severe but short confinement in cells, with solitude, silence, 
 darkness, and stinted food of coarse quality. With the abandonment 
 of labour in any prison, may be given up a vast and expensive list of 
 shops, implements, inventories of stock and bad debts, with the ex- 
 penses of a guard ; a separate agent may be dispensed with, and a 
 diminution of perhaps half, effected in the expenses of rations for thei 
 prisoners. The necessary expense of keeping 1000 prisoners in one 
 prison, will then be a small amount for each. 
 
 On the subject of expense, however, the committee have gone into 
 some calculations, the results of which, they hope will not be too pro- 
 lix to be submitted to the Senate. 
 
 According to the report from the Auburn prison, the committee 
 understand that down to the last year, there have been constructed 
 286 cells for solitary confinement, at an expense of about $"22,000, 
 making something less than ^80 for each cell. 
 
 An eminent master builder has been engaged to make an estimate 
 of the expense of building cells in the yard of the state prison at New- 
 York, and he has furnished the committee with a very detailed and 
 satisfactory calculation, shewing that a block of 144 cells will there 
 cost about $24,000, or $166 to each cell. 
 
 It appears by the Auburn report, that the rations for the prisoners 
 are furnished at 4 1-2 cents each, (not including the hospital,) and 
 that they consist of a full supply of good provisions, equal to the army 
 rations. Those at New- York are now furnished at six cents each, 
 and the committee presume are equally sufficient in quantity, and good 
 in quality. 
 
 It is believed to be no unreasonable estimate, if we suppose that 
 prisoners in close confinement, without exercise, and intentionally 
 stinted as to food, (and that food of coarse quality,) may be fed at 
 half the above prices respectively. The experiments of Count Rum- 
 ford upon the economy of food and preparation, would tend to the 
 same conclusion. 
 
 In solitary confinement there need be very little or no expense for 
 clothing ; in a great majority of cases their own clothing will be suffi- 
 cient ; especially as the time of imprisonment is intended to be short. 
 
101 
 
 But the greatest saving in both prisons, will be in dispensine with 
 the guards, which in the two prisons together , now cost about $10,000 
 annually. 
 
 Assuming these data, therefore, the committee offer the following 
 calculation of the expense of keeping 500 prisoners in solitary con- 
 finement in New-York, and 500 more at Auburn : 
 
 Estimate for 500 prisoners in New-York. 
 182,500 rations, at 3 cents, <^5,475 
 Hospital, suppose 1,000 
 Fuel, suppose 1,000 
 Officers, viz: 
 
 1 Agent and keeper, 1,400 
 I Clerk, 600 
 Deputy keeper, 600 
 12 Turnkeys, 500, 6,000 
 Board of Physicians, 250 
 Chaplain, 250 
 
 9,100 
 
 $16,675 
 
 Which gives to each convict an annual expense of S3 15 
 
 Add for the interest of the cost of a cell, at 7 per cent. II 62 
 Making for each prisoner, which however is exclusive of 
 
 the fees of sheriffs and expenses of prosecution, and — — 
 
 of the county expenses before conviction, $44 75 
 
 Estimate for 500 prisoners at Auburn. 
 182,500 rations, at 2 1-2 cents, 4,106 25 
 
 Hospital, suppose 1,000 
 Fuel, suppose 500 
 Officers, viz : 
 
 Vgent and keeper, 1,000 
 lerk, 600 
 Deputy keeper, 750 
 2 Turnkeys, at 350, 4,200 
 Joard of Physicians, 100 
 Chaplain, 150 
 
 6,500 
 
 $12,406 28 
 
102 
 
 uli 
 
 Which makes for each prisoner, 24 81 
 Add lor interest of the cost of a cell, at 7 per cent. 6 60 
 Total amount of expense of a prisoner at Auburn, exclu- 
 sive of the fees of sheriffs and expenses of prosecution, 
 
 and the county expenses before conviction, $30 41 
 
 From this statement it would appear that the cheapness of living, 
 makes a difference of about one third in favour of Auburn ; and it is 
 also obvious, that if all our prisoners could be confined under the care 
 of one set of officers, it would produce a further saving. But to coun- 
 tervail that saving, the expense of transporting the convicts, (the 
 greatest number of whom always come from the city of New- York,) 
 must be taken into the account. Upon the whole view of this subject, 
 therefore, the committee do not doubt but it will be the permanent 
 policy of this state to preserve a prison in or near New- York. 
 
 There will always be a certain number of criminaN, whose arts and I"? 
 practices are so dangerous to society, that they ouirhl never to be left 
 at large. But if such convicts are imprisoned for life, it would be 
 too vindictive to submit them to severe treatment intended for other 
 criminals, whose term of confinement would be shorter. They ought 
 therefore to be allowed labour, but that labour should still be severe 
 and even then it should be allowed only as a favour, and upon the 
 strict condition of their earning their subsistence. 
 
 Should the system recommended by your committee, go into opera- 
 tion, they hope and believe that the number of these prisoners for > 
 life will not be very large. 
 
 As the system so long and fully established in the New-York pri- 
 son, will (with some increase of severity) answer the intended pur 
 pose, the committee think that the present manufacturing establish- 
 ments in that prison should be continued. But they beg to be under- 
 stood as recommending this, merely as a necessary aUeviation of 
 imprisonment for life, and not at all as partaking of the nature oi' 
 punishment. 
 
 At the same time, the committee think it desirable, that so soon as 
 the funds of the state will allow it, there should be built in the New- 
 York prison a block of about 2(K) solitary cells, which may be done, 
 either by taking out the floors and partitions in some part of the old 
 prison, and replacing them with cells, or by a new building. So soon 
 as this system shall have goae fully into effect in New-York, and the 
 
 ill* 
 
103 
 
 Dumber of working prisoners shall have become considerably reduced, 
 ilie committee suppose that the guard will be dispensed with, which 
 will make a saving of nearly 7000 dollars a year. But as an addition- 
 al security, they would make it death for any prisoner who is allowed 
 to work, to break the prison, or escape from it. 
 On the whole, therefore, the plan which the committee would re- 
 I spectfully recommend to the consideration of the legislature, is, that 
 prisoners from any part of the state may be sent to either prison ; 
 those for life to New- York, at labour ; those for limited terms of con- 
 finement to the solitary cells, and of course to Auburn, except so 
 many from the southern counties as there may be solitary cells for, ia 
 the New- York prison. 
 
 As to the economy of this proceeding, there is one other considera- 
 tion which the committee wish to present. It may be seen from the 
 foregoing statements, that the average number of prisoners for six 
 years past being745,and theaverage expense of transportation $9,704, 
 it follows that the average of expense upon the prisoners is at the 
 rate of about thirteen dollars each, per year, for carrying them to 
 ■■iion. Now the interest of the money necessary to build a solitary 
 jil, even in New-York, has already been shewn to be but ^11 62. 
 I'he committee believe that the expense of transportation may be di- 
 ninished, and they intend to propose it. But on the other hand, if 
 he terms of imprisonment shall be shortened, and numbers of those 
 vho now are at large shall be returned for second and third offences, 
 is may be expected, it will probably follow at first, that the number 
 0 be transported will be increased. 
 
 If this should be so, it would furnish an additional motive, on the 
 core of economy, for building the cells in New-Vork as soon as pos- 
 ible ; because the annual expense of transporting the prisoners will 
 till farther exceed the annual interest of the cost of cells for theui. 
 Ind the committee think it certain that the annual expense of trans- 
 ortation will be increased, till ^he efficacy of the intended system 
 , ball be felt in deterring criminals from crimes, or driving them 
 t > other states and countries, from whence the major part of tbtm 
 ame. 
 
 On this subject of expense, the committee beg to be indulged in 
 taking another remark, to shew ho<v considerable, even at the lowest, 
 ; the cost to which a felon subjects the state. 
 
104 
 
 The forejfoing estimate for the annual expense of a prisoner 
 
 in a solitary cell, in the New- York pnson, is $43 75 
 
 Do. average of transportation, 13 
 Do. of other expenses by sheriffs, not susceptible of exact 
 
 ralrulation, but suppose half of the last, 6 50 
 
 Do. of district attornies for prosecution, by calculation ac- 
 fiirding to the average of the last six years, 18 
 Expenses to the county before ronviction, including the 
 charges of commitment, board in gaol, compensation 
 to poor witnesses, &c. &c. These charges are not sus- 
 ceptible of any calculation, but can hardly be conjec- 
 tured to be less than 20 
 
 f 101 25 
 
 Then it appears that every profligate who chooses to commit a 
 crimes, can subject this community to a taxation of more than 100 
 dollars for his support a year ; and that our 800 convicts, whose sup- 
 port now comes to nearly 200 dollars each per annum, will still, after 
 every practicable diminution of expense, cost as much money as would 
 prepare 800 of the youth of our country for lives of public usefulness,' 
 by an education at the colleges. 
 
 The contemplated alteration in the method of punishment will re- 
 quire that laws on that subject should be re-modeled ; and the com- 
 mittee think they may be greatly simplified. They cannot perceive 
 the reason of the many and various grades of punishment which we 
 have enacted, when probably no human discernment can so graduate *• 
 the turpitude of crimes, as to show why any given offence among so 
 many, should receive such a particular measure of infliction, rather 
 than one a little greater or a little less. 
 
 The committee therefore propose, that for crimes above petty lar- 
 ceny, not punishable with death, there be but three grades of punish* 
 ment ; and accordingly they throw all offences punishable by the 
 slate prison, into three classes, namely — the highest, the lowest, and 
 an intermediate clans, between those extremes. 
 
 They propose also, that there be three grades of punishment in the 
 cells, as particularly specified in the bill they intend to offer ; and' 
 that the court passing sentence have power, according to the nature^ 
 and aggravation of the case, to subject the ottender to either grade of' r' 
 
105 
 
 punishment, bat no* to control the duration of it, which is always 
 to be fixed within certain limits, by law- 
 
 They propose farther, that convicts i-n the New- York prison, who 
 are permitted to labour should be subjected to a more rigorous disci- 
 pline, with coarser food, but in plenty, till the net income shall meet 
 the expenses of food and clothing. 
 
 The committee are fully persuaded that this object is easily attain- 
 able, and they recommt-nd that it bf- imperatively required. And 
 they here observe, that a further reason for keeping all the labouring 
 convicts in New-York is, that food of a coarse qu»liiy can always be 
 procured at a very luw rate, whereas in the countrj no such selection 
 of food ran be made. 
 
 The committee recommend that no m^'O'factures be carried on 
 in the Auburn prison, unless perhaps -o furnish ti><; convicts witli 
 clothing. 
 
 They also propose that the la«^ should be so amended, that con- 
 ncts may be sent from any pa* '''e state to either prison, accord- 
 ng to the intended mode punishment, and having reference also 
 the room which eithe* prison may from time to time afford ; and, 
 better to enable "Oe courts to know the state of the prisons in 
 bese respects. th*t returns of the number of prisoners and of va« 
 t rooms and cells, be furnished regularly to the clerks of courts. 
 It is hoped that these regulations, if adopted, would enable the 
 ourts so to regulate the place, duration, and severity of punishment, 
 lat pardons will not become necessary for want of room in the pri- 
 ms. 
 
 n pursuance of these ideas, the committee beg leave to recommend 
 at a sufficient appropriation be maile to finish the block of cells be- 
 ta at Auburn, and not only so, but to finish it in one season. From 
 information of some very respectable and judicious men concerned 
 the government of that prison, the committee are satisfied that the 
 re&sary intermixture of mechanics and labourers with the prisoners 
 tie building is going on, tends to the destruction of all discipline; 
 unless, therefore, the cells are finished during the coming season, 
 operation of the system proposed, must be deferred for two years ; 
 1 in the mean time it is probable that the prison will overflow with 
 mbers. The views of the committee as to building of solitary 
 U in the Mew-York prison also, have been already expressed^ 
 
106 
 
 When lliesc improvements are once completed, the committee h*pe 
 that our penal &y^lclu may he so administered as to require no addi- 
 tional state prisons, and but a moderate annual expense. They can- 
 not doubt that the operation of the system will greatly diminish the 
 number of criminals, 
 
 The committee are of opioion that the su-rgestion of the inspectors 
 at Auburn, relative to the appointment by the legislature, of an annual 
 committee to visit both prisons, is well worthy of attention. In thi^ 
 way, uniformity of discipline might be introduced, and the improve- 
 ments in either pnson be extended to the other. Besides which, 
 your committee beleve that the authority of a legislative committee 
 %vould be more competent to introduce the necessary rigour of dis- 
 cipline, and strictness o? economy, than that of the local inspectors 
 can be. 
 
 The inquiries of the commit^g have most abundantly satisfied them, 
 that the practice of allowing visit*,ts to see the interior of the prison, 
 and the prisoners, is of most injurious consequence. From th«. 
 amount received for ticket fees, it wouii seem that nearly 8000 perr 
 sons in a year, or about twenty per day, hatbeen admitted. This, to^ 
 the prisoners, must be a continual amusementj besides the facilities 
 which it cannot fail to afford for improper commuir.cations. 
 
 1 he committee recommen 1 that all visitants he rigorously excluded,^ 
 except in special cases, to be allowed of by the inspectors ; and that 
 spectators be only permitted to view the cells through gratings in the, 
 cuter wails. 
 
 They recommend that in each prison a chaplain and physician be 
 employed ; that on a proper certificate from the physician, convicts 
 whose health is suffering, may be released temporarily from the cells, 
 the period of which release shall be added to that of their imprison- 
 ment; and that the prisoners be allowed such books of religipus in- 
 struction as shall be authorised on the recommendatioQ of the ch9| 
 Iain, by the inspectors, but no other books. 
 
 The committee further recommend that provision be made for tl 
 building of solitary cells at the gaols of the respective counties 
 tliat the courts in their discretion, have power to order criminals to 
 confined in those cells, and that the expense of their sustenance, i^t 
 exceeding the expense of vations at Auburn, be a charge against the 
 state treasury. 
 
107 
 
 It appears that the officers of the New-York prison have for years, 
 supposed that they bad not the power incident by commnn law to every 
 prison keeper, to correct his prisoner, within reasonable bounds, for 
 misbehaviour ; and on some application to the legislature, it has been 
 alleged that this doctrine was indirectly countenanced. 
 
 If such is the doctrine, it is wonderful that the prisoners do not 
 hold at least a divided rule with their keepers in the prison. But 
 while the committee deny that the legislature have questioned the 
 power, they recommend that a declaratory clause be enacted^ con- 
 firming it. 
 
 The last important amendment which the committee have to recom- 
 mend, relates to the detection of former offenders, who are often in- 
 dicted, and sentenced for punishment as for a first offence, though 
 when they arrive at the prison, they are recognized as ancient guests. 
 In a neighboring state, they have a regulation by which the Attorney 
 General is in such case, to file an information on which the prisoner 
 is put on trial, merely to receive the enhanced punishment due to bim 
 as a former offender. The committee recommend the adoption of a 
 similar law. 
 
 In the bill which the committee have prepared for the consideration 
 of the Senate, are contained some additions to. and alterations of the 
 Criminal Code, which will best appear from the bill itself; and they 
 beg leave to observe, that in the framing of that bill they have deri- 
 ved the greatest aid from a very able report upon the cnminal law, 
 and from a bill, which were drawn by a gentleman now holding an 
 executive office, and by him reported in the year 1819, to the Assem- 
 bly, of which he was then a member. 
 
 The committee have prepared a bill in conformity with the views 
 kerein expressed, and have instructed their chairman to ask leave to 
 biing in the same. 
 
 Kin> or THE AFTENBIX. 
 
) 
 
1 
 
 9