CORPORAL PUNISHMENTS, AND PENAL

REFORMATION.

From "Fraser's Magazine," February 1865.

PERHAPS all nations in which the principle of Law takes deep

root, and these are the noblest historical nations,—are apt in their early periods to drive punishments to a cruel extreme, in the belief that by mere severity crime can be crushed. After this has manifestly failed, especially if any development of democracy take place, one may count on a strong movement against corporal punishments. So was it as regards Athenian citizens and Roman citizens. Though the old Roman punishments were thoroughly Draconian, yet in the later republic the scourge might not touch the sacred back of a citizen; nay, the citizen who was a notorious murderer was exempted from arrest until after condemnation and could generally escape into exile, if he pleased, before the verdict could come forth. Only when the safety of the republic itself was at stake did the executive government bestir itself to seize the persons of detected conspirators; and this was done by a violation of the law, and with danger of after punishment recoiling on the head of the executive officer. We happily have not reached that stage, which was one teeming with calamity and ripe for bloody revolution. Yet it is impossible to overlook how violent and extreme is the change which has passed over English sentiment in half a century. It has coincided with a time of peace, and a time of steady development of political influence, first of the middle classes, and next, of the artizans. Not only under the Tudors and Stuarts does the coarse ferocity of punishment disgust the modern reader: even in the last century our criminal code appears nothing short of barbarous. The mitigation of it which began with the labours of Sir Samuel Romilly was most necessary, and the whole movement laudable; which has been continued down to the present day into schemes of Reformatory Prison Discipline, likely to yield precious fruits of philanthropy. It has been a great triumph to establish the principle, that reformation of criminals is an object which cannot be overlooked without damaging the public safety, which alone used

to be thought of. Nothing that we are about to write will undervalue the noble labours of this recent era, though we have some jealousy, lest in Reformation Prevention be forgotten. We have an immediate eye, not to what has been done, whether legislatively or executively; but to that to which the whole democratic movement seems to tend. The attack of the press is ostensibly and chiefly made against the punishment of Death, but some of their most trusted arguments virtually involve all corporal punishments; which is equivalent to exploding all inflictions whatsoever on those who are hardened against opinion and have no property to sacrifice. We have a high respect for the judgment of some who think that the law of Tuscany might by judicious supplements be safely adopted in England; nor is this article directed altogether to maintain the necessity of capital punishments. It does but maintain the inadequacy of certain current arguments against them, and the mischievous tendency of such arguments; it does but argue that, in proportion as the death punishment is relaxed or limited, in the same proportion must other corporal punishment be increased.

At the same time it may be permitted to clear the way by avowing our strong and entire abhorrence of the law which treats certain forms of crime as simple murder. The offence of duelling has at all times been felt to be morally quite different; because the passion which impels the combatants, whether it be pride or shame, does not imply any such depravity that they cannot afterwards be trusted in society. In fact the actual slayer may have fought unwillingly, being the party challenged. For these reasons, and on account of the presumed fairness of a combat, where "seconds" regulated the details, the sentiment and conscience of the nation was always against the law which treated the death of a duellist as a murder by his antagonist, and implicated the "seconds" as accomplices of the guilt. Yet it might there have happened, and did happen, that the slayer was dangerous to society; -if he was a bully skilful with his weapon, ready to insult quiet and force them either to bear his rudeness or to meet him in mortal combat where inferior skill put them at a disadvantage. The increasing intelligence of the nation seems to have exploded that barbarous mode of wiping off affronts and white-washing a soiled reputation. In an opposite class of society, and in the other sex, a very different offence is often perpetrated, which our law visits as murder; namely, infanticide, perpetrated by a mother in hope of concealing the birth. However shocking to our feelings

men,

is so unnatural a crime, it is wonderful how any thoughtful person can confound it with that of common murder. A man who slays another from malice, or in order to plunder him, is dangerous to all, and cannot thenceforward be allowed to go at large but the woman, who, to hide her shame, destroys her offspring, is not hereby a pest to society and incapable of trust and service. A powerful passion has driven her to a deed which inflicts on herself a dreadful pang. The natural strength of maternal affection is the measure of the punishment which she has borne, in the agonizing effort to avoid exposure of conduct, which in the eye of the All-Seeing may be rather a grave imprudence and a weak generosity, than a guilt marring the whole character. The second deed is worse than the first; yet surely ought to cause in us far more of pity than of hatred, while it can in no way suggest fear. How it happens that to this day the law is merciless and undiscriminating towards such women, we cannot understand; unless it be, because the victims of its severity are never aristocratic persons. If the guilty women were daughters of peers, and the duellists had been ordinarily of the class of draymen, the democrat (we fear) may justly say that the duellist would have had less sympathy, and the infant slayer far more, in judicial and legislative circles. Such considerations perhaps exercise an unseen and unsuspected force on the minds of millions, and lend animosity to the movement against capital punishments. It is to us evident that the whole subject needs to be reconsidered; and without presuming to dictate what conclusions will be ultimately reached, we desire to contribute materials of thought which may aid to throw light on the question and on that of corporal punishment generally.

First of all, let us dwell a little upon a primary doctrine. But for the long peace which we have enjoyed on our own soil,-for all our wars are fought abroad,-a perverted and mawkish interpretation of the sacredness of human life could scarcely have attained its wide currency among us. Erroneous religion has also acted a large part to make men grieve more for the cutting short of a worthless and wicked life, than for the loss of innocent and noble energies. The religious error, as might be expected, is not enunciated in plain short words by those whom it influences; for so to enunciate it, is, to refute it. They talk of “a sinful soul being hurried unprepared into the presence of its Maker," as a very shocking event; and virtually impute to those who thus "hurry" it the crime of securing its everlasting misery: but they

do not say plainly, that it is the duty of society to endure all the evil consequences (be they what they may) of keeping in the midst of it one who is far worse than any wild beast, lest otherwise they expose him prematurely to the cruelties of an Almighty Judge. This is what they must mean. If they did not think the Divine sentence frightfully disproportioned to the man's crimes, they would not shudder at the sentence of human law, on the ground that it calls into immediate operation the severities of Divine law. We cannot doubt that such doctrine is dangerously undermining our whole judicial system. A creed which men believe, and heartily approve, tends to political consistency and strength, even when it has no small measure of austerity or cruelty; but a creed which people believe, but shudder at, distorts the judgment, and produces perverse action. We wish to know, whether it is seriously maintained, that a "soul" while in this life is not in the "immediate presence of its Maker; whether He is so limited to "the other" world, as not to be strictly present in this. We wish to know, whether people seriously expect us to take measures for saving criminals from the Eternal's excessive severity: if they do not mean this, the whole topic is irrelevant, and they have no right to fan the smouldering fires of superstition in the public heart by vague utterances, more effective for their vagueness. As for being "hurried unprepared" into the Divine presence (in which every just thinker knows us all always and necessarily to stand), the great difficulty is, to know how to produce in guilt any fitness for such a presence. Indeed the great argument for capital punishment in certain cases is, that the guilty will have no choice but to become more guilty still, and therefore less "prepared," by being left to prolong a disastrous career.

And this leads to the question, what it is that makes human life in any case sacred. It is not because that life was given by God; and because we must not take away life which we cannot give; for this would equally apply to brute life, and could lead to nothing but Brahminical scruples against killing an insect. Nor is it, because man has an immortal soul; for this argument would lean wholly the other way. If it had any force at all, it would rather justify the well-known orthodox reply to the general, who feared to massacre the heretic population of Beziers, lest he unawares slay good Catholics among them: "Kill them all: God will know how to distinguish His own." The Getans (Téraι atavariLoves) according to Herodotus, and the Jews according to

Tacitus, despised life, because they believed in immortality. "Animas prœliis aut suppliciis peremtorum, æternas putant: hinc generandi amor et moriendi contemptus." To take away ten or thirty years of a life which is never to be renewed, is certainly inflicting a direr forfeit, than to shorten a life on earth and add just so many years to a life in heaven. The very men against whom we write, show a secret sense of this; for if a pious person be killed by a ruffian, they have no visible grief for the murdered, whom they regard as a simple gainer by the event (concerning which it is not ours to pronounce); but if the murderer is about to be executed, they discover, in his case only, the extreme sacredness of human life. The life of the guilty is made out to be more important than the life of the innocent: the two would at least be on a par, if immortality were the ground. But immortality does not ennoble the individual, if it may be an eternity of sin, without hope of amelioration; nor can mere immortality, as such, make the pulsations of animal life deserve to be more cherished. Evidently and undeniably, from the moral qualities in a human being, and from them alone, flows the sacredness of human life.

The whole worth of the human being, to himself and to others, depends on his moral qualities. Not only is it true that Man is made for virtue, but society cannot exist, except by aid of certain relative virtues, which must be upheld at any price. The most elementary of these, is, the mutual respect paid by every member to the rest, as regards life and the means of life. Perhaps nothing brings out so clearly the inevitable connections of action, as a state of war. Let us suppose a foreign power to resolve to make a lodgment on our soil. This surely is a hypothesis to reason from; for it is matter of frequent occurrence. Not a year passes without England taking such a step herself,-in Japan, or in China, or in New Zealand, or in Caffreland, or in the Crimea, or in the Punjaub, or in Affghanistan, or in Burma. She has, or thinks she has, good reasons: so France has good reasons for fixing herself in Rome, in Cochin China, in Mexico. Suppose then, we again say, that France, Russia, or United Germany, should believe they have good and wise reasons for occupying Bristol, or Plymouth, or the Isle of Wight; and should send an armament of invasion, should overpower the first resistance, and take military occupation of a district. Except the small society of "Friends" (with whom we are not now arguing), all Englishmen would avow that every foreign soldier who invaded our