Consider, for instance, the immense amount of suffering and demoralization needlessly caused by our severe laws in the last century. Those many merciless penalties which Romilly and others succeeded in abolishing, were as little justified by social necessities as by abstract morality. Experience has since proved that to hang men for theft, was not requisite for the security of property. And that such a measure was opposed to pure equity, scarcely needs saying. Evidently, had considerations of relative expediency been all along qualified by considerations of absolute expediency, these severities, with their many concomitant evils, would have ceased long before they did.
Again, the dreadful misery, demoralization, and crime, generated by the harsh treatment of transported convicts, would have been impossible, had our authorities considered what seemed just as well as what seemed politic. There would never have been inflicted on transports the shocking cruelties proved before the Parliamentary Committee of 1848. We should not have had men condemned to the horrors of the chain-gang even for insolent looks. There could not have been perpetrated such an atrocity as that of locking up chain-gangs “from sunset to sunrise in the caravans or boxes used for this description of prisons, which hold from twenty to twenty-eight men, but in which the whole number can neither stand upright nor sit down at the same time, except with their legs at right angles to their bodies.” Men would never have been doomed to tortures extreme enough to produce despair, desperation, and further crimes—tortures under which “a man’s heart is taken from him, and there is given to him the heart of a {161} beast,” as said by one of these law-produced criminals before his execution. We should not have been told, as by a chief justice of Australia, that the discipline was “carried to an extent of suffering, such as to render death desirable, and to induce many prisoners to seek it under its most appalling aspects.” Sir G. Arthur would not have had to testify that, in Van Diemen’s Land, convicts committed murder for the purpose “of being sent up to Hobart Town for trial, though aware that in the ordinary course they must be executed within a fortnight after arrival;” nor would tears of commiseration have been drawn from Judge Burton’s eyes, by one of these cruelly-used transports placed before him for sentence. In brief, had abstract equity joined with immediate expediency in devising convict discipline, not only would untold suffering, degradation, and mortality have been prevented; but those who were responsible for atrocities like those above-named, would not themselves be chargeable with crime, as we now hold them to be.
Probably we shall meet with a less general assent when, as a further benefit which the guidance of absolute morality would have conferred, we instance the prevention of such methods as those in use at Pentonville. How the silent and the separate systems are negatived by abstract justice we shall by and by see. For the present, the position we have to defend is that these systems are bad. That but a moderate per-centage of the prisoners subjected to them are re-convicted, may be true; though, considering the fallaciousness of negative statistics, this by no means proves that those not re-convicted are reformed. But the question is not solely how many prisoners are prevented from again committing crime? A further question is, how many of them have become self-supporting members of society? It is notorious that this prolonged denial of human intercourse not unfrequently produces insanity or imbecility; and on those who remain sane, its depressing influence must almost {162} of necessity entail serious debility, bodily and mental.[7] Indeed, we think it probable that much of the apparent success is due to an enfeeblement which incapacitates for crime as much as for industry. Our own objection to such methods, however, has always been, that their effect on the moral nature is the reverse of that required. Crime is anti-social—is prompted by self-regarding feelings and checked by social feelings. The natural prompter of right conduct to others, and the natural opponent of misconduct to others, is sympathy; for out of sympathy grow both the kindly emotions, and that sentiment of justice which restrains us from aggressions. Well, this sympathy, which makes society possible, is cultivated by social intercourse. By habitual participation in the pleasures of others, the faculty is strengthened; and whatever prevents this participation, weakens it. Hence, therefore, shutting up prisoners within themselves, or forbidding all interchange of feeling, inevitably deadens such sympathies as they have; and so tends rather to diminish than to increase the moral check to transgression. This a priori conviction, which we have long entertained, we now find confirmed by facts. Captain Maconochie states, as a result of observation, that a long course of separation so fosters the self-regarding desires, and so weakens the sympathies, as to make even well-disposed men very unfit to bear the little trials of domestic life on their return to their homes. Thus there is good reason to think that, while silence and solitude may cow the spirit or undermine the energies, it cannot produce true reformation.
[7] Mr. Baillie-Cochrane says:—“The officers at the Dartmoor prison inform me that the prisoners who arrive there even after one year’s confinement at Pentonville, may be distinguished from the others by their miserable downcast look. In most instances their brain is affected; and they are unable to give satisfactory replies to the simplest questions.”
“But how can it be shown,” asks the reader, “that these injudicious penal systems are inequitable? Where is the method which will enable us to say what kind of {163} punishment is justified by absolute morality, and what kind is not?” These questions we will now attempt to answer.
So long as the individual citizen pursues the objects of his desires without diminishing the equal freedom of any of his fellow citizens to do the like, society cannot equitably interfere with him. While he contents himself with the benefits won by his own energies, and attempts not to intercept any of the benefits similarly won for themselves by others, or any of those which Nature has conferred on them; no legal penalties can rightly be inflicted on him. But when, by murder, theft, assault, arson, or minor aggression, he has broken through these limits, the community is warranted in putting him under restraint. On the relative propriety of doing this we need say nothing: it is demonstrated by social experience. Its absolute propriety not being so manifest, we will proceed to point out how it is deducible from the ultimate laws of life.
Life depends on the maintenance of certain natural relations between actions and their results. If respiration does not supply oxygen to the blood, as in the normal order of things it should do, but instead supplies carbonic acid, death quickly results. If the swallowing of food is not followed by the usual organic sequences—the contractions of the stomach, and the pouring into it of gastric juice—indigestion arises, and the energies flag. If active movements of the limbs fail in exciting the heart to supply blood more rapidly, or if the extra current propelled by the heart is greatly retarded by an aneurism through which it passes, speedy prostration ensues. In which, and endless like cases, we see that bodily life depends on the maintenance of the established connexions between physiological causes and their consequences. Among the intellectual processes, the same thing holds. If certain impressions made on the senses do not induce the appropriate muscular adjustments—if the brain is clouded with wine, or consciousness is {164} pre-occupied, or the perceptions are naturally obtuse; the movements are so ill-controlled that accidents happen. Where, as in paralytic patients, the natural link between mental impressions and the appropriate motions is broken, the life is greatly vitiated. And when, as during insanity, evidence fitted, according to the usual order of thought, to produce certain convictions, produces convictions of an opposite kind, conduct is reduced to chaos, and life endangered—perhaps cut short. So it is with more involved phenomena. Just as we here find that, throughout both its physical and intellectual divisions, healthful life implies continuance of the established successions of antecedents and consequents among our vital actions; so shall we find it throughout the moral division. In our dealings with external Nature and our fellow men, there are relations of cause and effect, on the maintenance of which, as on the maintenance of the internal ones above instanced, life depends. Conduct of this or that kind tends to bring results which are pleasurable or painful; and the welfare of every one demands that these natural sequences shall not be interfered with. To speak more specifically, we see that in the order of Nature, inactivity entails want. There is a connexion between exertion and the fulfilment of certain imperative needs. If, now, this connexion is broken—if labour of body or mind has been gone through, and the produce of the labour is intercepted by another, one of the conditions to complete life is unfulfilled. The defrauded person is physically injured by deprivation of the wherewithal to make good the wear and tear he had undergone; and if the robbery be continually repeated, he must die. Where all men are dishonest a reflex evil results. When, throughout a society, the normal relation between work and benefit is habitually broken, not only are the lives of many directly undermined, but the lives of all are indirectly undermined by destruction of the motive for work, and by the consequent poverty. Thus, to demand that there shall {165} be no breach of the natural sequence between labour and the rewards obtained by labour, is to demand that the laws of life shall be respected. What we call the right of property, is simply a corollary from certain necessary conditions to complete living. It is a formulated recognition of the relation between expenditure of force and the need for force-sustaining objects obtainable by the expenditure of force—a recognition in full of a relation which cannot be wholly ignored without causing death. And all else regarded as individual rights, are indirect implications of like nature—similarly insist on certain relations between man and man, as conditions without which there cannot be fully maintained that correspondence between inner and outer actions which constitutes life. It is not, as some moralists and most lawyers absurdly assert, that such rights are derived from human legislation; nor is it, as asserted by others with absurdity almost as great, that there is no basis for them save the inductions of immediate expediency. These rights are deducible from the established connexions between our acts and their results. As certainly as there are conditions which must be fulfilled before life can exist, so certainly are there conditions which must be fulfilled before complete life can be enjoyed by the respective members of a society; and those which we call the requirements of justice, simply answer to the most important of such conditions.
Hence, if life is our legitimate aim—if absolute morality means, as it does, conformity to the laws of complete life; then absolute morality warrants the restraint of those who force their fellow-citizens into non-conformity. Our justification is, that life is impossible save under certain conditions; that it cannot be entire unless these conditions are maintained unbroken; and that if it is right for us to live completely, it is right for us to remove any one who either breaks these conditions in our persons or constrains us to break them.
Such being the basis of our right to coerce the criminal, {166} there next come the questions:—What is the legitimate extent of the coercion? Can we from this source derive authority for certain demands on him? and are there any similarly-derived limits to such demands? To both these questions there are affirmative answers.
First, we find authority for demanding restitution or compensation. Conformity to the laws of life being the substance of absolute morality; and the social regulations which absolute morality dictates, being those which make this conformity possible; it is a manifest corollary that whoever breaks these regulations, may be justly required to undo, as far as possible, the wrong he has done. The object being to maintain the conditions essential to complete life, it follows that, when one of these conditions has been transgressed, the first thing to be required of the transgressor is, that he shall put matters as nearly as may be in the state they previously were. The property stolen shall be restored, or an equivalent for it given. Any one injured by an assault shall have his surgeon’s bill paid, compensation for lost time, and also for the suffering he has borne. And similarly in all cases of infringed rights.