I do not propose to give more than a few words to the question of capital punishment, because it does not seem to be any longer a question of much magnitude or importance. A century, even three-quarters of a century, ago it was a different matter. In England especially capital punishment seems to have flourished luxuriantly. A writer in Elizabeth’s reign says that in Henry VIII.’s time seventy-two thousand thieves and vagabonds were hanged. The statement is set down on hearsay evidence only, but is sufficient to show that the number must have been very large. About a century ago more criminals, it is said, were put to death in England than in any other part of Europe; many persons still living remember the days of wholesale hanging, and even the execution of a child of twelve for rioting. It is less than half a century since a child of nine was condemned to death for stealing paint, value twopence-halfpenny, and since men were hanged for stealing sheep and postoffice letters.
There can be little doubt that capital punishment is dying out. In Switzerland, in England, in Italy, for example, the tendency is very clearly marked. Whether its complete extinction is altogether a matter for rejoicing is a question concerning which there is not complete unanimity among those whose opinions carry most weight. An impressive body of opinion is in favour of putting instinctive criminals to death, not out of revenge, but in the spirit in which Galen and Seneca advocated the destruction of incorrigible offenders against social life, regarding them as diseased members to be removed for the advantage of the whole social body. Garofalo, the distinguished Neapolitan lawyer, is perhaps the chief advocate of capital punishment among those who are working for legal reform. He points out that the death penalty is the only one the criminal really dreads, and tells of offenders who committed their crimes under the impression that capital punishment had been abolished, and that they were to be provided with food and shelter for the rest of their lives. On the other hand, it has also been shown that the éclat and public interest involved in a trial for life or death serves as an incentive to the morbid vanity of criminals. Such a penalty as burning “for example of others, as hath been accustomed,” according to the phrasing of Henry VIII.’s statute, has been an example often enough in another sense than the statute intended.
On the whole, we may perhaps be well satisfied that capital punishment—“the shameful practice,” as it has been epigrammatically styled, “of hiring for a guinea an assassin to accomplish a sentence which the judge would not have the courage to carry out himself”—is threatened with extinction in civilised countries. It has the disadvantage of being irrevocable. There would be little chance of mistake if it were only applied to recidivists; but these are a class to whom it is rarely applied. It is certain that mistakes have occurred when in the opinion of the judge the evidence of guilt was absolutely convincing. It is true that the chief cause of this extinction in democratic countries is not the benefit of the criminal, or even the welfare of society; it is a tender regard for the sentiments of the general public. “To punish murder by lifelong imprisonment,” as Sir Robert Rawlinson observed, “is a far severer fate than sudden death, but it is not so revolting.” We have to see to it that our substitutes for the death penalty are of a humane and rational character, and that they afford an equal protection to society. It should never be possible to address to society the words which the daring Duc de Montausier addressed to Louis XIV. concerning a criminal who was finally executed after committing twenty murders: “This man has only committed one murder, the first, and it is you who, by letting him live, have committed the other nineteen.” But, as Benedikt well observes, to kill the criminal is never satisfactory, because we do not kill his accomplices, bad social conditions and defective institutions; we leave untouched the false social sentiments that urged the unmarried girl to kill her own child, or the rigid marriage system that made it easier for the man to kill his wife than to leave her or to allow of her leaving him. Moreover, it must be said that murderers, whom alone it is considered justifiable to eliminate by death, are not usually the most degraded of criminals or the most dangerous to society. In Russia, where capital punishment for common-law offences was abolished more than a century ago, murderers are condemned to hard labour for a period of years, after which they are settled in Siberia. “Eastern Siberia is full of liberated assassins,” remarks Prince Krapotkine, “and, nevertheless, there is hardly another country where you could travel and stay with greater security; while the unceasing robberies and murders of which Siberia complains now, take place precisely in Tomsk and throughout Western Siberia, whereto no murderers and only minor offenders are exiled. In the earlier part of this century it was not uncommon to find at an official’s house that the coachman was a liberated murderer, or that the nurse who bestowed such motherly care upon the children bore imperfectly obliterated marks of the branding-iron.”[90] Mr. Davitt, speaking from an extensive acquaintance with criminals, says:—“The really hardened, irreclaimable criminal will never commit a murder.... The most heinous of all offences—murder deliberately intended and planned before commission—is, ordinarily, the offspring of the passions of revenge and jealousy, or the outcome of social or political wrongs; and is more frequently the result of some derangement of the nobler instincts of human nature than traceable to its more debased orders or appetites.”[91] Again, Miss Carpenter, in her Female Life in Prison, wrote:—“Some women are less easy to tame than the creatures of the jungle.... And yet these women are not always in for the worst crimes: there are few, if any, murderers amongst them; they have been chiefly convicted of theft after theft, accompanied by violence.” These observations are entirely in accord with the results of criminal anthropology; the murderer belongs very frequently to the class of criminals by passion, the least anti-social of all, and is at other times frequently the subject of some morbid impulse, epileptic or insane.
Perhaps the most powerful reason in favour of the probable disappearance of capital punishment is the humanising influence that would be exerted on the community generally. The unreasoning outbursts of ferocity in which, especially among young and emotional democracies, some morbid and distracted creature who fires at a political personage is hurried with glee to the scaffold, or some half-witted human thing who commits a rape is perhaps actually torn to pieces, are not wholesome manifestations of the social spirit. They are far less excusable than the deeds by which they are aroused, for the reason that they arise in more normally constituted persons. So long as capital punishment is legitimate there is, however, at least the appearance of an excuse for the development of these brutalising outbursts. All that is finest in civilisation is bound up with a self-restraint and humanity, as well as a more intelligent insight, which, while admitting a more chastened social reaction, makes ferocity impossible.
Let us turn to the prison. During the last century a vast amount of care and enthusiasm, philanthropic and administrative, have been expended on the elaboration and development of prisons. It is needless to sketch the history of this development, which seems now to have come to a standstill; it has often been done, and is easily accessible. It is however very interesting and instructive to take note of the deliberate opinions expressed during the last few years, from various points of view, by those who have had the opportunity of studying most intimately the modern developed prison.
A curious fate has befallen this ancient institution. In its more primitive form it now arouses universal disgust and horror. The Russian prisons of Siberia are, for instance, a by-word of reproach. The physical and mental torture which they inflict, wholesale and indiscriminately, on men and women, on political suspects as well as on the lowest criminals, have been described over and over again, from within and from without, during the last fifty years, in Dostoieffsky’s Recollections of the Dead-House, by Maximoff, and by Krapotkine, and still, when Mr. Kennan repeats the old story, a wave of indignation passes across the civilised world. Elsewhere on the fringe of European civilisation the primitive prison is still scarcely changed. The Spanish prisons are often filthy and overcrowded, and the inmates are maintained in laziness. In the Spanish prison of Ceuta, in Morocco, there are 3000 convicts, mostly for life, and crowded together, so that 112 sleep in one room.[92] The native prisons of Morocco are the abodes of oppression, starvation, and filth, where the innocent and guilty are thrown in together, without any kind of work, and allowed to die slowly. “The horrors of these places are indescribable. Often they are underground, damp, and pestilential; always filthy. They are frequently very crowded, and a dozen or more poor wretches may be fastened in one chain by their necks, with heavy irons on their wrists and ankles, unable to stir a foot away from one another for any purpose all night, and often all day.”[93] “On the highest authority,” says Mr. Cook, “I am able to say that the prison population of the city of Morocco equals the free population.” In the interior, where there is no dread of European influence, things are naturally much worse. In Egypt the prisons are filthy and filled with untried prisoners. In Greece the prisoners are, “if possible, dirtier than those of Egypt, no work, no books, and but little food. Some of the rooms containing ten prisoners were less than twelve feet square.” Many of the prisons of South Africa are in a wretched condition, and some of those in the United States are little better.
A century ago most of the prisons of England could fairly have been included in any such enumeration as that I have just attempted. “They are ironed,” wrote Howard of the English convicts of 1773, “thrust into close, offensive dungeons, and there chained down, some of them without straw or other bedding. They continue in winter sixteen or seventeen hours out of the twenty-four in utter inactivity, and immersed in the noxious effluvia of their own bodies. Their diet is at the same time low and scanty; they are generally without firing; and the powers of life soon become incapable of resisting so many causes of sickness and despair.” There was not, as a recent writer remarks, so much consideration for prisoners in Britain as there had been in the reign of the Emperor Constantine, for the Romans of the fourth century did not permit the imprisonment of men in the same room with women. Howard found a girl locked up all day with two soldiers in the Bridewell at St. Albans, and in many of the gaols there was insufficient provision for the separation of the sexes.
We have changed all that. The best prisons of England, France, the United States, Belgium, Italy, and some other countries, are models of ingenuity, cleanliness, and routine. It cannot be said, indeed, that we have succeeded in hindering communication between prisoners, or in preventing an illicit traffic in tobacco, etc., or even the practice of unnatural intercourse; and we do not trouble ourselves too much to reform the prisoner. Yet even these laxities of discipline have added materially to the prisoner’s comfort; and if we have not reformed the prisoner we have at least reformed the prison, an easier task, and one which shows more tangible results. “The prisoner of the present day is well cared for,” remarks Dr. Gover, the medical inspector, in a recent Report of the Directors of Convict Prisons; “he is supplied with all the necessaries, and not a few of the comforts of life; and his existence is, to say the least, rendered very endurable. The labour exacted from him is not irksome in its character, and he is not subjected to any depressing punishment unless it be for idleness or for serious misconduct.” But the work is not of an exhausting character, so that there is no very strong motive to laziness. “Hard labour,” Mr. Horsley remarks, “is such that no prisoner could get a living outside if he did not work harder.” It is not surprising that under these circumstances the prisoner flourishes. “In our prisons now there is,” says Dr. Richardson, “a lower mortality and probably a lesser sickness than in the most luxuriously appointed and comfortable houses in the commonwealth.” And what, he asks, is more natural when we find “epidemic poisons shut out of our prisons; famine shut out; luxury shut out; drink shut out; exposure to cold and wet shut out; the acute and most destructive kinds of mental worry shut out; the hungry strain for to-morrow’s bed and board shut out; the baneful association with criminal life at large shut out!”
And yet we are dissatisfied! This comfortable, easy-going routine of the modern prison is viewed with scarcely more approval by the thoughtful investigator of to-day than the horrors of the primitive prison. It is deeply interesting and suggestive to take note of the opinions expressed during recent years by those most intimately acquainted with the modern prison. “Why are our prisons failures?” asks Mr. Horsley, who is as impressed as much as any one by the material progress of prisons. “Men are asking, and will more loudly ask, ‘Why are our prisons such utter failures?’ In the face of the phenomena of recidivism, and men and women with hundreds of convictions, it is absurd to imagine that they are as deterrent as they should be.” The prisoner is, he points out, but temporarily suspended from habits of crime by circumstances not under his own control: “He may even boast of his intentions, but out he must go, with as much safety to the State as if all mad dogs were muzzled for twenty-four hours and then all unmuzzled, because it had been found that in that period a certain proportion ceased to be dangerous; or as if all small-pox patients were discharged from hospital so many weeks after reception, whether cured or not.”[94] Another prison chaplain (Rev. C. Goldney), speaking from an experience of twelve years, writes still more recently:—“I say, unhesitatingly, that if a society for the manufacture of criminals were set on foot, that society could in no better way further its aims than by pressing for the imprisonment of every little boy and girl who could, on any decent pretext, be brought before a bench of magistrates. Prison officials well know the hardening influence of gaol life on the young, and statistics show how unlikely it is that the first term of imprisonment will be the last in the case of children of tender years. They learn the secret which should jealously be kept from them—that a short imprisonment is after all no such very terrible punishment.” Mr. Michael Davitt has learnt by actual experience the realities of English convict life at Dartmoor, Portsmouth, and Portland, and the valuable book in which he has summed up those experiences is full of wise and fruitful suggestions. After pointing out that philanthropic intentions on the part of the heads of a department are no guarantee for their administration at the hands of warders and assistant-warders, he continues[95]:—“Penal servitude has become so elaborated that it is now a huge punishing machine, destitute, through centralised control and responsibility, of discrimination, feeling, or sensitiveness; and its non-success as a deterrent from crime, and complete failure in reformative effect upon criminal character, are owing to its obvious essential tendency to deal with erring human beings—who are still men despite their crimes—in a manner which mechanically reduces them to a uniform level of disciplined brutes. There is scarcely a crime possible for man to be guilty of, short of murder, which should not, in strict justice, be expiated by seven years’ infliction of a punishment that has been brought to such a nicety of calculation that there is the closest possible surveillance of every one undergoing it night and day, together with an unceasing conflict between every feeling in the prisoner that is superior to a mere condition of animal existence and the everlasting compulsion to refrain from almost all that it is natural for man to do, and to do what it is to the last degree repugnant for any rational being to consent to perform. Yet wretches who have had a London gutter or a workhouse for their only moral training-school, and who have been subsequently nurtured in crime by society’s other licensed agencies of moral corruption, receive ten, fifteen, and sometimes twenty years for thefts and crimes which should, in justice, be expiated by a twelve months’ duration of such punishment. It is these horribly unjust penalties that beget many of the desperadoes of Portland, Chatham, and Dartmoor, the murderers of warders, the malingerers, and the partial maniacs, and which implant in the minds of convicts that ferocious animosity against law and society which turns so many of them into reckless social savages.” Prince Krapotkine has also had practical acquaintance with prisons, and his conclusions also are deserving of study. In his very interesting book, In Russian and French Prisons, after describing the routine of the Maison Centrale at Clairvaux, one of the best-arranged of modern prisons, he adds:—“Such is the regular life of the prison, a life running for years without the least modification, and which acts depressingly on man by its monotony and its want of impressions; a life which a man can endure for years, but which he cannot endure—if he has no aim beyond this life itself—without being depressed and reduced to the state of a machine which obeys but has no will of its own; a life which results in an atrophy of the best qualities of man, and a development of the worst of them, and, if much prolonged, renders him quite unfit to live afterwards in a society of free fellow-creatures.” And again he remarks:—“The real cause of recidivism lies in the perversion due to such infection-nests as the Lyons prison is. I suppose that to lock up hundreds of boys in such infection-nests is surely to commit a crime much worse than any of those committed by any of the convicts themselves.”[96] M. Émile Gautier, a companion of Prince Krapotkine’s, who has written a series of remarkable articles on this subject,[97] calls the prison a hot-house for poisonous plants. He points out what has often been remarked by others (Mr. Davitt, for instance), the great difference between the “bon détenu” and the “bon sujet.” “The recidivists are always the most easy to manage, the most supple—or the most hypocrital—and therefore the favourites with the officials. The misfortune is that this ‘bon détenu,’ according to the formula, soon becomes under this régime as incapable of resisting his comrades, instinctive criminals or professional evil-doers, as the warders, and as little refractory to temptation, to unwholesome stimulus, to the attraction of an illicit gain, or to the contagion of bad example, as to discipline. He can only obey—no matter whom!” And elsewhere he says: “It is well to remark that there is not one of the passions, natural or factitious, of man, from drunkenness to love, which cannot find in prison at least a semblance of satisfaction.... It need not be said that the prisoner afterwards carries out with him into the world all these abnormal vices in a more developed form. The prison indeed, as it is organised, is a sewer throwing out into society a continuous flood of purulence, the germs of physiological and moral contagion. It poisons, brutalises, depresses, and corrupts. It is a manufactory at once of the phthisical, the insane, and the criminal.” Dr. Napoleone Colajanni, the eminent criminal sociologist of Naples, confirms from personal experience the evidence given by Prince Krapotkine and M. Gautier. A writer who is peculiarly well informed as to the manners and customs of the criminal classes in England writes:—“Looking at our present system of dealing with thieves, examining it from every side, it is clear that nothing can be more clumsy and inefficient—except for evil. Let any one of robust health fancy himself a prisoner within four walls, employed day after day in severest labour, without a face to look at except that of the tyrant warder or the scowling criminal, without relaxation or kindly intercourse of any kind; with nothing, in short, to subdue the darker feelings, but with everything to nourish them. Let any one of robust health fancy himself enduring this year after year—for a fifth, a fourth, or even half of a life—and then say what sort of creature he would probably become. Then there is the expense of a system which does not reform nor get rid of the thief—in old days gaol fever did the latter when the halter failed—but merely hoards him up for a while to turn him loose on society more wolfish than ever. As we deal with the thief he is our most costly national luxury.”[98] The courts of Paris and of Bourges have not hesitated to declare that the chief cause of recidivism is to be found in the prison and its régime.[99] In one of the foremost American States, Ohio, an influential committee, including the Governor of the State, has reported: “With less than half-a-dozen exceptions, every gaol in Ohio is a moral pest-house and a school of crime.” The Lord Chief Justice of England (Lord Coleridge) is reported as saying, in 1885, that “there were few things more frequently borne in upon a judge’s mind than the little good he could do the criminal by the sentence he imposed. These sentences often did nothing but unmixed harm, though he was sure that throughout the country the greatest pains had been taken to make our prisons as useful as possible in the way of being reformatories. But, as a matter of fact, they were not so.”
M. Laloue, inspector-general of prisons in France, stated before a commission that “with our existing system, twenty-four hours’ imprisonment suffices, under certain circumstances, to ruin a man.” The following conversation ensued. M. Tailhand: “There is perhaps some exaggeration in the statement that twenty-four hours’ imprisonment can ruin a man.” M. Laloue: “I do not exaggerate. I say what I have seen. The prisoner meets a corrupt recidivist; they appoint a rendez-vous outside, and that man is lost.” M. Tailhand: “He must be a man of very weak character.” M. d’Havssonville: “It is such characters that succumb.”