SHALL PUNISHMENT PUNISH?
It is published that in England a man has been undergoing an aggregate imprisonment of ten years for breaking a shop window, at different times, and that when recently pardoned he immediately broke the same window again for the purpose of being again arrested. One who knows nothing more than this of the facts cannot presume to determine what punishment should in justice be given to this particular offender; but the case is interesting as an extreme example of what frequently occurs in a less striking degree in this country. Police courts become acquainted with a class of criminals who would rather go to jail for their dinner, especially in winter, than earn a dinner by hard work. They are the confirmed vagabonds from whom the army of summer tramps is chiefly recruited. They never feel truly virtuous and happy in cold weather except when they have committed a petty offence and are on the way to "punishment," which consists in accepting from a thoughtful public a warm shelter and all the food they want. It is their business to live, at times if not constantly, in this way. Sending them to jail for their offences is known by the courts that send them to be nothing but a sorry farce.
There is another equally incorrigible class, who commit greater crimes, but not chiefly for the sake of "punishment." Detectives keep themselves advised of the sentences of these offenders, and prepare to shadow them anew whenever they are released from confinement. It is not expected that incarceration will have any reformatory effect. The question of reforming them, as of reforming those who offend to get rid of the trouble of taking care of themselves, comes to be left out of consideration, after a little experience, by the officers whose duty it is to deal with them. Only intimidation remains for a considerable number. With these, rather than with the English window-breaker, should probably be classed the subject of this item from a late newspaper: "Charles Dickens is dead, and died of honest work; but the German prisoner, Charles Langheimer, whom he saw in the penitentiary at Philadelphia thirty-three years ago, and over whose punishment by solitary confinement he lamented in 'American Notes,' describing him as 'a picture of forlorn affliction and distress of mind,' still lives at the age of seventy-five, and has just been sent back to his old quarters the sixth time, for his chronic offence of petty theft, which has kept him in jail full half his long life."
That punishment for crime is necessary, and therefore a public duty, is admitted, and every community professes to impose it. But what of the criminals whom punishment as now administered does not punish—who actually commit crimes for the purpose of receiving it? It would seem that society has not the power or has not the wisdom to protect itself. It has the right, of course. It has the power also.
The law does not succeed in what it attempts and professes to do. At present when we find a criminal who has sufficient good in him to feel our methods, we punish him in proportion to his—goodness. When we find one so vile that our methods are like water on a duck's back, we do not punish him—except as water punishes a duck. He goes unpunished because he is so bad, while a better man is punished because he is better. What is this but rewarding insensibility? It is very creditable to the hearts of the lawmakers—perhaps—but it is fraud on the community. It is legalized wickedness. It permits incarnate nuisances to wax fat, and prey upon honest industry, and increase and multiply, until they become the only prosperous and protected class.
It has been suggested that a criminal on his second conviction be deemed a professional, and incarcerated for life. It would no doubt be cheaper for the public to shut him up thus and support him permanently. But there is the objection that the punishment would generally be out of proportion to the crime, if it were a punishment at all; and if it were not a punishment, we would be offering a greater premium on vice than we now are. To punish petty larceny as if it were as great a crime as manslaughter or murder would be too unjust to be long possible. The case seems to demand a new medicine rather than a greater dose of one which has failed when tried in any practicable quantities.
There is one remedy, so far as the infliction of real punishment is a remedy, although those who administer justice as above described will hold up their hands in horror at the mention of it. If it be a fact that the punishment of criminals is necessary, and if it be a fact that a class of them is impervious to any punishment except physical pain, then we are bound to either inflict this pain or else abandon the principle of punishment. There is no third course if the two facts are admitted—and to those who will not admit them an unprejudiced reading of the criminal news of the past three hundred and sixty-five days is commended. If one man's heart is callous to what will break another's, all men's backs are of nearly equal tenderness. It is doubtful whether the whipping-post ever had a fair trial without proving that it might be made a good thing under such circumstances as we must very soon, if we do not now, confront.
The fact that it was once used and then abandoned does not settle the case. It was erected for those who could have been otherwise dealt with, and for those who deserved no punishment at all. It was not reserved for only those deserving punishment, on whom our more refined penalties had been tried and had failed. It is not a fair trial of it to put it into the hands of a drunken or passionate ship's captain; or the hands of a religious bigot; or the hands of a slave-driver; or the hands of a tyrant or autocrat of any kind; or the hands of an incompetent judge; or the hands of any judge in a ruder age than this. If an ignorant or brutal use of it in the past condemns an enlightened use of it now, we should abandon life-taking and imprisonment, for these have been even more abused. We have no fear that the death penalty will be misused hereafter because men have been hung for petty larceny heretofore. When the lash is wielded by a barbarous hand, as it generally has been, of course we abhor it. But how about it when the hand of Christ wields it in the temple? Although the incarnation of charity made him a scourge for those who needed it, yet we cannot follow His example because Torquemadas have made scourges for those who did not need them. Such is the logic of those who would cite the past in this matter. The truth is, the lash was abandoned in the humane belief that criminals could be punished without it; and the truth also is, some criminals are now proving that they cannot be punished without it.
Go over the subject as we may, we come back to the question, Is the lash or something equally unrefined necessary to accomplish all the law now attempts? It must be looked at in the cold light of certain very sad facts, as well as in the warm blaze of "chromo" civilization. If we are not yet compelled to answer it in the affirmative, there is so much evidence pointing toward such an answer, that it is well to consider very respectfully indeed whatever can be said on the unpopular side. It need not frighten those who accept the idea so tersely presented by the Hare Brothers—of which one is strongly reminded by Mr. Greg in the "Enigmas of Life," although perhaps he does not expressly state it—that the tendency of civilization is to barbarism.
Of course flogging is not a panacea; but it is for those who profit by nothing gentler; and the more enlightened society becomes the more certainly can these be identified. The generous feeling that has discontinued it would not cease to be a guarantee against its abuse. Our courts cannot depart far from public sentiment. We can trust judges and juries to determine who deserves castigation just as safely as to determine who deserves imprisonment or death. Most of the censure they now receive in their treatment of the hopelessly depraved is for their lenity and not their rigor. There is no offender would not dread and wish to avoid whipping. Certainly no one would offend for the purpose of receiving it; and it would probably discourage a man in less than ten years from breaking the same window. It would be inexpensive, and would have the merit of being short and sharp, if not decisive. Punishment, intimidation, is what is here considered, and the point is whether it shall be administered to all who deserve it, or whether the law society finds necessary for its protection shall be a falsehood, at war with itself—a sham. The law cannot shrink from anything that is necessary to its purpose without impeaching its purpose.
And is it more inhuman to hurt the back of one who cannot be made to feel anything else than it is to pain the heart and hurt the soul of one who can? How can Christians so exalt the flesh above the spirit? They did not do it in the primitive days of the faith. Is it more barbarous to scourge the body than to gall it with irons, or poison and debilitate it by confinement, or wear it out by inches at hard labor? We have not abolished corporeal punishment—only rejected a form of it which is frequently more merciful, if more dreaded, than some that are retained.
All wrongs right themselves by "inhumanity," if permitted to go far enough. You are told by good authority, and you know without telling, that if you find a burglar in your house at night, you perform a public duty by shooting him dead rather than see him escape. From the humanitarian point of view, this is certainly more dreadful than it would have been to stop, by flogging, any minor offences that led him into your house. Indeed, if the penalty for the burglary itself were a "barbarous" laceration of his back, it would doubtless have more effect in keeping him from the burglary and from a bloody death, than does the risk of imprisonment. We must not whip him in obedience to the law, but we may safely shoot him dead without regard to it. It is our tenderness that becomes "inhuman" if it be not wisely bestowed. Would it be quite in keeping with the pretensions of "advanced" civilization to see the matrons and maids of the rural neighborhoods going about their dairies and summer kitchens with revolvers in their belts, and bowie-knives in their bosoms? That is the spectacle the "tramp" nuisance promises to produce. Would the whipping-post, set up in the slums of the great cities, where the miscreants among the tramps breed and form their characters, look any more like barbarism? The voluntary tramp has but shown the countryman during the summer what the city suffers during the winter. He is simply trying to distribute and equalize himself, and while enjoying his country air, collects the same taxes he collects all the rest of the year in town. Let the city continue to rear him tenderly, and not hurt his precious carcass, and feed and warm him, and punish only his sensitive spirit, until the country people get down their shot-guns and make a barbarous end of him. And this is being true to the cause of humanity.
It is noble for the law to withhold its hand when one who has taken a wrong step can be won back to a good life by other means; and if the wretches hopelessly saturated with vice can be intimidated by anything milder than flogging, by all means be mild; but when we find one who cannot, why not acknowledge the fact and act on it?
The reason why we do not so act is only a sentimental one. A sentimental reason, however, may be a very good one. Society feels that it is better to suffer, and to see its laws become a mockery to this degree, than to shock its own best instincts. This sentiment that obstructs absolute vindication of the law is respectable so long as it can be respected with tolerable safety and public satisfaction. But it interferes with justice by courtesy, and not by right. It is all very well so long as society does not complain. But if its mouthpieces are to be believed, society does complain. The public is not satisfied with the present punishment of certain offenders—indicated with sufficient accuracy by the tough old Langheimer and the English window-breaker—and is restive under the pecuniary burden they impose.
Although the history of the whipping-post is nearly worthless to one seeking to know what its value might be under all the favorable conditions with which it could be surrounded now and here, yet it is possible to point readily to one trial that should have been, and probably was, a fair one. A very few years ago—perhaps four or five—garroting became a terror to the London pedestrian. For assault and robbery, without intent to kill, the death penalty was too terrible, and the other penalties failed to intimidate, as they generally do when the crime is lucrative, easily accomplished, and not immediately dangerous. It could not be trifled with, and something had to be done. A "barbarous" whipping of the bare back was resorted to, and garroting subsided. The result was what the public wanted. Sentimental eyes may show their whites, horrified hands may go up, floods of twaddle may come forth in sympathy with the discouraged garroter, but men of common sense, especially if they have been garroted themselves, will say the end was worth what it cost, and believe in the inhumanity that achieved it.
Nothing has been said of Delaware. No valuable lesson could be drawn from her without considerable investigation, and perhaps not then. She may do too much flogging, or she may not do enough. Her ministers of justice may be models of enlightenment, or they may be models of debasement. The lash there may be still a class instrument, or it may not. She has no great city—an exceedingly important consideration—and two portions of her people are jostling each other as nominal equals in the race of life, who but the other day held the relation of master and slave. She is probably not indifferent to a good name, and her retention of the whip under all the sneers she receives is some evidence that she at least regards it as still having a defensible use.
Chauncey Hickox.