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  BLACKWOOD'S

  EDINBURGH MAGAZINE.

  No. CCCLVIII. AUGUST, 1845. VOL. LVIII.




  CONTENTS.


  ON PUNISHMENT.                                                     129

  PUSHKIN, THE RUSSIAN POET. CONCLUDED.                              140

  MARSTON; OR, THE MEMOIRS OF A STATESMAN. PART XVIII.               157

  A LETTER FROM LONDON. BY A RAILWAY WITNESS,                        173

  PRIESTS, WOMEN, AND FAMILIES,                                      185

  MY COLLEGE FRIENDS. NO. II.--HORACE LEICESTER,                     197

  ZUMALACARREGUI,                                                    210

  NORTH'S SPECIMENS OF THE BRITISH CRITICS. NO. VII.--MAC-FLECNOE
    AND THE DUNCIAD,                                                 229


EDINBURGH:

WILLIAM BLACKWOOD AND SONS, 45, GEORGE STREET; AND 37, PATERNOSTER ROW,
LONDON.

_To whom all Communications (post paid) must be addressed._

SOLD BY ALL THE BOOKSELLERS IN THE UNITED KINGDOM.

PRINTED BY BALLANTYNE AND HUGHES, EDINBURGH.




  BLACKWOOD'S

  EDINBURGH MAGAZINE.

  No. CCCLVIII. AUGUST, 1845. VOL. LVIII.




ON PUNISHMENT.


How to punish crime, and in so doing reform the criminal; how to uphold
the man as a terror to evil-doers, and yet at the same time be
implanting in him the seeds of a future more happy and prosperous
life--this is perhaps the most difficult problem of legislation. We are
far from despairing of some approximation to a solution, which is the
utmost that can be looked for; but we are also convinced that even this
approximation will not be presented to us by those who seem willing to
blind themselves to the difficulties they have to contend with. Without,
therefore, assuming the air of opposition to the schemes of
philanthropic legislators, we would correct, so far as lies in our
power, some of those misconceptions and oversights which energetic
reformers are liable to fall into, whilst zealously bent on viewing
punishment in its reformatory aspect.

We have selected for our comments the pamphlets of Captain Maconochie,
not only because they illustrate the hasty and illogical reasonings, the
utter forgetfulness of elementary principles, into which such reformers
are apt to lapse; but also for the still better reason, that they
contain a suggestion of real value; a contribution towards an efficient
prison-discipline, which merits examination and an extensive trial. We
have added to these pamphlets a brief work of Zschokke's, the venerable
historian of Switzerland, on death-punishment, in order that we might
extend our observations over this topic also. It is evident that the
question of capital punishment, and the various questions relating to
prison discipline, embrace all that is either very interesting or very
important in the prevailing discussions on penal legislation.
Transportation forms no essentially distinct class of punishment, as the
transported convict differs from others in this only, that he has to
endure his sentence of personal restraint and compulsory labour in a
foreign climate.

Reformatory punishment! Alas, there is an incurable contradiction in the
very terms! Punishment is pain, is deprivation, despondency, affliction.
But, would you reform, you must apply kindness, and a measure of
prosperity, and a greater measure still of hope. There is no genial
influence in castigation. It may deter from the recommission of the
identical offence it visits, but no conversion, no renewal of the heart,
waits on its hostile presence; the disposition will remain the same,
with the addition of those angry sentiments which pain endured is sure
to generate. No philosopher or divine of these days would invent a
purgatory for the purifying of corrupted souls. No--he would say--your
purgatory may be a place of preparation if you will, but _not_ for
heaven. You may make devils there--nothing better; he must be already
twice a saint whom the smoke of your torments would not blacken to a
demon.

We may rest assured of this, that the actual infliction of the
punishment must always be an evil, as well to mind as body--as well to
society at large as to the culprit. If the threat alone could be
constantly efficacious--if the headlong obstinacy, the passion, and the
obtuseness of men would not oblige, from time to time, the execution of
the penalty, for the very purpose of sustaining the efficacy of the
threat--all would be well, and penal laws might be in full harmony with
the best educational institutions, and the highest interests of
humanity. But the moment the law from a threat becomes an act, and the
sentence goes forth, and the torture begins, a new but unavoidable train
of evils encounters us. There is war implanted in the very bosom of
society--hatred, and the giving and the sufferance of pain. And here, we
presume, is to be found the reason of the proverbially severe laws of
Draco, which, being instituted by a man of virtue and humanity, were yet
said to have been written in blood: he desired that the threat should be
effective, and that thus the evils of punishment, as well as of crime,
should be avoided.

Whatever is to be effected towards the genuine reformation of the
culprit, must be the result, not of the punishment itself, but of some
added ingredient, not of the essence of the punishment; as when hopes
are held out of reward, or part remission of the penalty, on the
practice of industry and a continuance of good behaviour.

And yet--some one may here object--we correct a child, we punish it, and
we reform. The very word correction has the double meaning of penalty
and amendment. If the plan succeeds so well with the infant, that he who
spares the rod is supposed to spoil the child, why should it utterly
fail with the adult? But mark the difference. You punish a child, and a
short while after you receive the little penitent back into your love;
nay, you caress it into penitence; and the reconcilement is so sweet,
that the infant culprit never, perhaps, has his affections so keenly
awakened as in these tearful moments of sorrow and forgiveness. The
heart is softer than ever, and the sense of shame at having offended is
kept sensitively alive. But if you withdrew your love--if, after
punishment inflicted, you still kept an averted countenance--if no
reconcilement were sought and fostered, there would be no reformation in
your chastisement. Between society and the adult culprit, this is
exactly the case. Here the hostile parent strikes, but makes no after
overture of kindness. The blow, and the bitterness of the blow, are left
unhealed. Nothing is done to take away the sting of anger, to keep the
heart tender to reproof, to prevent the growing callousness to shame,
and the rising rebellion of the spirit. And here reveals itself, in all
its force, another notorious difficulty with which the reformer of penal
codes has to contend.

In drawing the picture of the helpless condition of the convicted and
punished criminal, how often and how justly does he allude to the
circumstance, that the reputation of the man is so damaged that honest
people are loath to employ him--that his return to an untainted life is
almost impossible--and that out of self-defence he is compelled to
resort again to the same criminal enterprises for which he has already
suffered. Struck with this view, the reformer would institute a
penitentiary of so effective a description, that the having passed
through it would be even a testimonial of good character. But who sees
not that the infamy is of the very essence of the punishment? A good
character is the appropriate reward of the good citizen; if the criminal
does not pay the forfeit of his character--if only a certain amount of
temporary inconvenience is to be sustained, the terror of punishment is
at an end. Here, on the arena of public life, between society and the
culprit, are they not manifestly incompatible--the tenderness that would
reclaim, and the vigour that must chastise?

There is no question here, we must observe, of that delicate sense of
shame which is the best preservative against every departure from
rectitude. This has been worn out, and almost ceased to operate on the
majority of persons who expose themselves to the penal laws of their
country. It is the value of character as a commercial commodity, as a
requisite for well-being, that alone has weight with them. Benevolent
projectors of reform, more benevolent than logical, are fond of
comparing a prison to an hospital; they contend that the inmates of
either place are sent there to be cured, and that they should not be
restored to society until they are restored, the one to health of body,
the other to health of mind. Would they carry out the analogy to its
fair completeness, and maintain that the patient from either hospital
should be remitted to society with a character equally free from stain?
Is the man to be received by the community with the same compassionate
welcome who has gone into prison to be cured of a propensity to theft,
as one who has entered an hospital to be relieved of a disease?

An hospital is a word of no inviting sound--and physic, no doubt, is
sufficiently nauseous to be not inaptly compared to flogging, or any
other punitive discipline: but nauseous drugs are not the only means of
cure; good nursing, vigilant attendance, sometimes generous diet, have a
large share in the curative process. And in the hospital of the mind,
the lenitive and fostering measures have a still larger share in the
work of a moral restoration. Were this principle of cure, of perfect
restoration, to be adopted as the first principle of penal legislation,
it would come to this, that a poor man would have no better way of
recommending himself to the fatherly care of the state than by the
commission of a crime, and that none, in the lower classes of society,
would be so well trained and disciplined for advancing their fortunes in
the world, as those who commenced their career by violating the laws of
their country.

Imprisonment, with its various accompaniments and modifications, is the
great reformatory punishment. Indeed, with the exception of
death--confined almost entirely to the case of murder--it is the only
punishment bestowed on serious offences. Imprisonment of some kind,
either at home or in the colonies, is the penal safeguard of society;
and we must be cautious that we do not so far diminish its terrors, that
it should cease to hold out any threat to a needy malefactor. But before
we allude to the discipline of the prison, we must take a glance at this
great exception of death, which it is the object of many of our zealous
reformers entirely to erase from the penal code.

That this extreme punishment should be reserved for the extreme crime of
murder, seems generally admitted; and the practice, if not the letter,
of our law has conformed to this opinion. It would be useless,
therefore, to argue on the propriety of inflicting this penalty on other
and less enormous offences. The question is narrowed to this--shall
death continue to be the punishment of the murderer?

Those who contend for the entire abolition of this punishment, are in
the habit of enlarging much on the inadequate effect produced upon the
multitude who witness the spectacle of an execution. This is their
favourite and most frequent theme. They seem to overlook the much more
powerful effect produced on the imagination of that far greater
multitude who never behold, or are likely to behold, an execution. It is
curious to observe how pertinaciously a certain class of reasoners will
dwell on the picture which a crowd presents at a public execution;--much
like a crowd, we may be sure, at any other public spectacle. Whatever
the object which gathers together a mob of the lowest class, they will
soon begin to relieve the tedium of expectation by coarse jests,
drunkenness, and brawling. Yet these descriptive logicians are never
weary of painting to us the grotesque and disgusting scenes which the
mass of spectators exhibit on these occasions, as if this were quite
decisive of the question. That ragged children, who have never thought
of death at all, play their usual pranks at the foot of the
gallows--that pickpockets ply their trade in this as in every other
gaping crowd--what has all this to do with the impression produced on
the mind of every man and woman throughout the kingdom, by the knowledge
that if he, through sudden passion, or the instigations of cupidity,
take the life of a fellow-creature, he shall be--not a spectator at such
an exhibition--but that solitary crawling wretch who, after having spent
his days and nights in agony and fear, is thrust forward, bound and
pinioned, to be hanged up there like a dog before the scoffing or
yelling multitude?

We willingly concede that a public execution is not an edifying
spectacle. The coarse minds who can endure, and who court it, are the
last to whom such a spectacle should be presented. And, although the
punishment might lose some portion of its terrors, we should prefer that
the execution should take place in a more private manner; in the
court-yard, for instance, of the prison, and before a selected number of
witnesses, partly consisting of official persons, as the sheriffs and
magistrates, and partly of a certain number of persons who might be
taken from the several jury lists--the option being given to them either
to accept or decline this melancholy office. This would be a sufficient
publicity to ensure an impartial administration of the laws. The only
doubt that remains is, whether it would be sufficient to prevent the
spread of false rumours, and absurd suspicions, amongst the people. It
is a prevailing tendency with the mob, whenever any one at all above
their own condition is executed, to believe that he has been favoured
and allowed to escape. Even in the face of the most public execution,
such rumours are circulated. We understand that Mr Tawell is confidently
reported to be living at this moment in America. Such suspicions,
however ridiculous and absurd, must be cautiously guarded against.

After all, the mode of execution is but of secondary importance; arrange
it how you will, it is a lamentable business. Like all other
punishments, and still more than all other punishments, the actual
infliction of it is an evil to society. When the law passes from the
threat to the execution, it is a social disaster. The main point is,
that we present to the imagination of every man a great threat--that of
almost immediate extermination--if he lift his hand against his
neighbour's life.

That which renders the punishment of death peculiarly appropriate, in
our estimation, in the crime of murder, is not by any means its
retaliative character; the sentiment, that "blood must have blood," is
one which we have no desire to foster; and if some less grievous penalty
would have the same effect in deterring from the crime, we should, of
course, willingly adopt it. Our ground of approval is this, that it
presents to the mind an antagonist idea most fit to encounter the
temptation to the crime. As this temptation must generally be great, and
often sudden, that antagonist idea should be something capable of
seizing upon the apprehension at once--of exercising at once all its
restraining efficacy. Imprisonment for length of years--the mind must
calculate and sum up the long list of pains and penalties included in
this threat, before its full import is perceived. But death! And then
the after-death! For what makes the punishment of death so singularly
applicable to the case of murder is this, that it awakens whatever may
exist of religious terror in the mind of him who contemplates the crime.
On the one hand, he is about to commit a deed on which there are not two
opinions; it is not a crime made such by the laws; it is not even a
robbery, for which he may frame excuses out of his destitution, and the
harsh distinctions of society; it is murder, which heaven and earth,
rich and poor, equally denounce. On the other hand, his guilt will bring
him almost immediately before the tribunal of God, as well as the
judgment-seat of man. No long interval weakens the impression, no long
space holds out the vague prospect of repentance and amendment, and
compensatory acts of goodness; but if he will lift the knife, if he
will mingle the poison, there is the earthly executioner at hand to
transfer him to the still more dreadful sentence of the after-world! The
same opinion which condemns the crime of murder here on earth, as the
most atrocious that can be committed, follows him to that other
tribunal; and all that his imagination has been accustomed to depict of
the horrors of internal and eternal punishment, rushes at once upon him.

When the temptation comes in the shape of sudden anger and impetuous
passion, there is a threat as sudden to encounter it. When the crime is
revolved in the secret and guilty recesses of the mind--as when some
individual stands between the tempted man and the possession of a
fortune, or some other great object of desire--there is religious terror
as stealthy, as secret, as unconquerable, as the strongest desire that
takes possession of the human heart, to assist always at his
deliberations.

M. Zschokke's little treatise, to which we have alluded, contains the
usual, together with some unusual, arguments against