THE STRONG POINT OF CRIMINAL LAW REFORM.
" IT is scarcely possible,", says Captain Maeonochie, speaking of criminal law reformers, " to find an example of so much 'unanimity with so slow an advance towards reduction to prac- tice" ; a state of matters so grievous to our excellent corre- -spondent, that he does not like to have it talked about. Although he is.not prepared altogether to deny the " weak point " of the , movement in which he takes so leading a part, he does not like it to be pointed out. Slur that over, he would say, and insist on our -strong point—our unanimity as to a specific measure, and help us lo get that measure. Precisely what we have endeavoured to do. And in sooth we have so hearty a good-will to the enterprise in which our friends are engaged, that we cannot forego the office of applying the keystone to their arch, the vital spark to their inanimate body. The stationary position of which Captain Maconochie so na- turally and justly complains is owing to a particular want : if he and his friends supply that want, we will guarantee for them a -ra.pid rate of progress. The want is, a true theory of corrective discipline. The inconveniences which they suffer for want of 'such a theory are, a want of unity in the practice of corrective discipline, with regard to object and method, a backward state of public opinion, and the lack of sufficient influence to extort the desiderated measure from Government and the Legislature. An esteemed correspondent denies the want of theory, and expounds to us the theory of his own plans. Captain Maconochie denies -that he and his collaborateurs are "empirical," since "they have seasons ' plentiful as blackberries' for the faith that is in them." We have not denied either of the matters here asserted—either the "reasons " for the faith, or the theory of the plan in question ; but we still insist that a distinct theory of corrective discipline las not been laid down, that the want leaves the efforts of re- -formers in a scattered condition, and that the "reasons" which they adduce, however sound, are empirical. As to the conflict, for example, it exists not only between the 'views of the several reformers, but between the arguments ad- minced by the same man. While Mr. Charles Pearson inclines °to restore a penal austerity, the last admirable report of Mr. Fre- derick Hill on the Prisons of the Northern District is replete with proofs that a kind and conciliatory treatment is the most conducive to reformation, to discipline within the prison, and ap- parently to example. It is remarkable that the most successful cases of reformatory influence are due to kindness: Mr. Thomas Wright, a benevolent gentleman who strives to reclaim .prisoners in Salford Gaol, finds that one counteraction to relapse is the de- sire not to cause pain to him. Mr. Matthew Hill adopts these convictions, and applies them to his enlightened practice for the reformation of juvenile offenders at Birmingham ; and he cites the great reformatory colony of M. De Metz, at Mettray, where kindness is the power employed. Under examination before the Lords' Committee, Mr. Hill says—" I do not believe in the great deterring effect of punishment generally ; I think it is overra- ted" : yet the same Mr. Hill tries to make out that the reform- atory process is one that is peculiarly painful. And the view is inconsistent with many facts in Mr. Frederick Hill's report, showing that the reformatory influences most successful were the reverse of painful. We can quite understand that these discre- pancies are only apparent ; we believe that the amount of real inconsistency is trivial : but the cause why it exists is, that the criminal law reformers have not yet performed the needful task of positing the true principles of corrective discipline ; hence the want of theoretical unity. Mr. Matthew Hill likens a prison regulated on his plan to " a hospital for the cure of moral disease" : the parallel is very ap- propriate, and we desire nothing more than to see it carried out. But it is inconsistent with some concessions which the Birming- ham Recorder makes to old prejudices. In a hospital, pain is avoided as much as possible ; it is by no means considered an element of the curative process, but an incident which is to be minimized. Bentham's volume on Punishment, remarkable for its want of searching analysis, pronounces punishment to be an evil, but assumes that it is an unavoidable evil. But, accord- ing.to the evidence which crowds upon us, retributive pain is a positive hinderance to corrective discipline. " I believe," says the Reverend John Field, Chaplain of Reading Gaol, " that the mere dread of punishment, as threatened by any law either human or divine, very seldom prevents crime : offences are restrained far more by the correction of a criminal; but they are increased by the hardening process of ineffectual punishment." The criminal " has suffered punishment, I am fully convinced, and a very se- vere punishment; but it is not smarting from that punishment that will prevent future crimes." E converse, the future crimes are prevented in prisoners like the man at Preston who wished that he had been in prison ten years sooner, or like the girls whom we saw some years back in Glasgow Bridewell, who had voluntarily remained in prison after the expiry of their sentences —to whom prison, in fact, was not a pain, but a release from pain. The hospital is a true model for the prison. In a hospital, the treatment of the patient is dictated by a knowledge of the disease. We do not administer drugs indiscriminately, or be- cause we have found them "'successful " in certain cases : that kind of practice is empiricism or quackery, which in the case of physical disease was exploded long ago. Even so early as Hip- pocrates, physicians had begun to elaborate medical theory by induction ; but in the present day, intelligent practice is based strictly upon a knowledge of the physiology of health, upon pa- thology, and therapeutics : we know, at least -to some extent, what is the composition of each organ, what its function ; what is the change in disease ; what a drug administered will do, specifically, in altering the function or chemical composition of that organ. Our knowledge is imperfect ; but the whole medical profession is engaged in pursuing inquiries, and as knowledge advances so does practice. The physician is no longer satisfied with an empirical law—a law derived from uniformities observed under given circumstances ; bpt he demands a more original and general law ; he must know why the healthy function is disturbed —how the drug acts upon the body. But our criminal lawyers are scarcely up to Hippocrates : they have been studying drugs only, not the frame on which they are to act; or they have only begun the study of mental physiology. The idea is lurking in their minds, but they have not given it full effect. " I would submit to your Lordships," says Mr. Field, " the opinion that if crimi- nals were dealt with according to character rather than according to particular crimes, there would be far more hope of reformation and of benefit to society generally." In other words, if the treat- ment in the moral hospital were scientifically based on a know- ledge of moral physiology, pathology, and therapeutics, rather
than on a mere empirical observation symptoms and drugs, cure would be more certain and the moral health of the general public better promoted.
The causes of crime may be classed as arising from congenital incapacity, ignorance, hereditary custom, as in the case of thieves by lineal succession, destitution, and depraved mind. The object of corrective discipline is to remove those causes, or to prevent their active operation ; and of course, to be efficient it must be cor- relative to the causes. Correction is not revenge ; which is mere- ly a solace to the injured party when he is in a very rude state, and is not a desirable object of corrective discipline. Correction is not mere self-defence, like the resistance of the traveller to the footpad ; for that is limited to driving off aggression. The offence is a thing past, and it is idle to deplore or avenge it ; it concerns society only in being a symptom of that diseased condition of the criminal which is dangerous to society ; and the object of society, so far as the individual offender is concerned, must be cure, or, where cure is impossible, restraint, in order by either process to expunge that chance of moral contagion. For it must be borne in mind, that the main object of society is to keep down the aggregate amount of moral disease. Pain may be an unavoidable incident of the curative process, but it is in itself an evil not specifically curative. You do not want to cure the pickpocket of having picked a gentleman's pocket on a particular day, but of the propensity to pick pockets ; and you want to cut off the contagious example. It is the conclusion from the whole mass of evidence, that the example of retributive punishment for picking a pocket has little if any moral influence over the criminally disposed population, but that the greatest moral influence accrues from witnessing the power of reformation over the criminal— its irresistible power, and its beneficent results. The true rea- sons for those conclusions are only to be found by the study of the human mind, in its healthy and in its diseased state, and of the effect which correctional treatment of different kinds has upon the diseased mind. This truth is present to the under- standing of many reformers : Mr. Field is aware of it ; Mr, Frederick Hill has noted the old fallacy that wholesale shame is useful, and observes how needful it is to foster or revive " self-respect " ; Captain Maconochie insists that you must cult" vate industry and self-reliance. Here are the elements of a true theory of correctional discipline struggling into notice; but they require to be put together and systematized. Criminal physici- ans need a criminal pathology. It is for want of such a science that practice is not perfectly consistent, and that public opinion halts. We know how great is the prejudice against " theorizing " ; we_know that the public never will be brought to understand technical and scientific de- tails. The, public does not understand them in the case of civil law, or physic, or engineering' or any other scientific avocation : but leading minds understand them ; leading minds vouch the clear intelligence and learning of this lawyer, the scientific prac- tice of that physician, the sound principles of that engineer. Mere " success " does not make the reputation of the ,scientific professor, or Holloway's pills might bear down the whole medical profession by the weight of testimonials ; but it is the noted pos- session of clear intelligible science, attested by competent judg- ment, which confers fame on the physician, the lawyer, or the engineer. Public opinion, relying on authority, will lend the weight of the public voice to enforce the award of that author- ity. The science of correctional discipline does not 'differ in its primary conditions from that of any other science : let the public once learn, on competent authority, that the great reformers have agreed upon certain conclusions, tested by scientific rules accord- ing to ascertained laws, and the public will soon compel any go- vernment, however inert, to supply the needful statutes for giving effect to that scientific knowledge. Captain Maconochie wants a measure to substitute task sen- tences for time sentences : but why? He says that the allotted task is conducive to industry and self-reliance : but why does it do so ? and even if it does, how does industry or self-reliance ope- rate to cure certain criminal tendencies, such as the piopensity to murder, or to anticipate the fruits of -industry by fraud? How does it operate ? Let him make that clear, and he will not wait long in the passage of the Legislature for his little bill, so long and so justly due to his zeal, his humanity, and his, great practi-
cal intelligence. . .
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