The two antagonist theories of morals, like many other antagonist theories, are both right and both wrong. The a priori school has its truth; the a posteriori school has its truth; and for the proper guidance of conduct, there must be due recognition of both. On the one hand, it is asserted that there is an absolute standard of rectitude; and, respecting certain classes of actions, it is rightly so asserted. From the fundamental laws of life and the conditions of social existence, are deducible certain imperative limitations to individual action—limitations which are essential to a perfect life, individual and social; or, in other words, essential to the greatest happiness. And these limitations, following inevitably as they do from undeniable first principles, deep as the nature of life itself, constitute what we may distinguish as absolute morality. On the other hand it is contended, and in a sense rightly contended, that with men as they are and society as it is, the dictates of absolute morality are impracticable. Legal control, which involves infliction of pain, alike on those who are restrained and on those who pay the cost of restraining them, is proved by this fact to be not absolutely moral; seeing that absolute morality is the regulation of conduct in such way that pain shall not be inflicted. {153}

Wherefore, if it be admitted that legal control is at present indispensable, it must be admitted that these a priori rules cannot be immediately carried out. And hence it follows that we must adapt our laws and actions to the existing character of mankind—that we must estimate the good or evil resulting from this or that arrangement, and so reach, a posteriori, a code fitted for the time being. In short, we must fall back on expediency. Now, each of these positions being valid, it is a grave mistake to adopt either to the exclusion of the other. They should be respectively appealed to for mutual qualification. Progressing civilization, which is of necessity a succession of compromises between old and new, requires a perpetual readjustment of the compromise between the ideal and the practicable in social arrangements: to which end both elements of the compromise must be kept in view. If it is true that pure rectitude prescribes a system of things too good for men as they are; it is not less true that mere expediency does not of itself tend to establish a system of things any better than that which exists. While absolute morality owes to expediency the checks which prevent it from rushing into utopian absurdities; expediency is indebted to absolute morality for all stimulus to improvement. Granted that we are chiefly interested in ascertaining what is relatively right; it still follows that we must first consider what is absolutely right; since the one conception presupposes the other. That is to say, though we must ever aim to do what is best for the present times, yet we must ever bear in mind what is abstractedly best; so that the changes we make may be towards it, and not away from it. Unattainable as pure rectitude is, and will long continue to be, we must keep an eye on the compass which tells us whereabout it lies; or we shall otherwise wander in the opposite direction.

Illustrations from our recent history will show very conclusively, we think, how important it is that {154} considerations of abstract expediency should be joined with those of concrete expediency—how immense would be the evils avoided and the benefits gained, if a posteriori morality were enlightened by a priori morality. Take first the case of free trade. Until recently it has been the practice of all nations, artificially to restrict their commerce with other nations. Throughout past centuries this course was defensible as conducing to safety. Without saying that law-givers had the motive of promoting industrial independence, it may yet be said that in ages when national quarrels were perpetual, it would not have been well for any people to be much dependent on others for necessary commodities. But though there is this ground for asserting that commercial restrictions were once expedient, it cannot be asserted that our corn-laws were thus justified: it cannot be alleged that the penalties and prohibitions which, until lately, hampered our trade, were needful to prevent us from being industrially disabled by a war. Protection in all its forms was established and maintained for other reasons of expediency; and the reasons for which it was opposed and finally abolished were also those of expediency. Calculations of immediate and remote consequences were set forth by the antagonist parties; and the mode of decision was by a balancing of these various anticipated consequences. And what, after generations of mischievous legislation and long years of arduous struggle, was the conclusion arrived at, and since justified by the results? Exactly the one which abstract equity plainly teaches. The moral course proves to be the politic course. That ability to exercise the faculties, the total denial of which causes death—that liberty to pursue the objects of desire, without which there cannot be complete life—that freedom of action which his nature prompts every individual to claim, and on which equity puts no limit save the like freedom of action of other individuals, involves, among other corollaries, freedom of exchange. {155} Government which, in protecting citizens from murder, robbery, assault or other aggression, shows us that it has the all-essential function of securing to each this free exercise of faculties within the assigned limits, is called on, in the due discharge of its function, to maintain this freedom of exchange; and cannot abrogate it without reversing its function, and becoming aggressor instead of protector. Thus, absolute morality would all along have shown in what direction legislation should tend. Qualified only by the consideration that in turbulent times they must not be so carried out as to endanger national life, through suspensions in the supply of necessaries, these a priori principles would have guided statesmen, as fast as circumstances allowed, towards the normal condition. We should have been saved from thousands of needless restrictions. Such restrictions as were needful would have been abolished as soon as was safe. An enormous amount of suffering would have been prevented. That prosperity which we now enjoy would have commenced much sooner. And our present condition would have been one of greater power, wealth, happiness, and morality.

Our railway-politics furnish another instance. A vast loss of national capital has been incurred, and great misery has been inflicted, in consequence of the neglect of a simple principle clearly dictated by abstract justice. Whoso enters into a contract, though he is bound to do that which the contract specifies, is not bound to do some other thing which is neither specified nor implied in the contract. We do not appeal to moral perception only in warranty of this position. It is one deducible from that first principle of equity which, as above pointed out, follows from the laws of life, individual and social; and it is one which the accumulated experience of mankind has so uniformly justified, that it has become a tacitly-recognized doctrine of civil law among all nations. In cases of disputes about agreements, the question in each case brought to trial {156} always is, whether the terms bind one or other of the contracting parties to do this or that; and it is assumed, as a matter of course, that neither of them can be called upon to do more than is expressed or understood in the agreement. Now this almost self-evident principle has been wholly ignored in railway-legislation. A shareholder, uniting with others to make and work a line from one specified place to another specified place, binds himself to pay certain sums in furtherance of the project; and, by implication, agrees to yield to the majority of his fellow-shareholders on all questions raised respecting the execution of this project. But he commits himself no further than this. He is not required to obey the majority concerning things not named in the deed of incorporation. Though with respect to the specified railway he has bound himself, he has not bound himself, with respect to any unspecified railway which his co-proprietors may wish to make; and he cannot be committed to such unspecified railway by a vote of the majority. But this distinction has been wholly passed over. Shareholders in joint-stock undertakings have been perpetually involved in other undertakings subsequently decided on by their fellow-shareholders; and, against their will, have had their properties heavily mortgaged for the execution of projects that were ruinously unremunerative. In every case the proprietary contract for making a particular railway, has been dealt with as though it were a proprietary contract for making railways! Not only have directors thus misinterpreted it, and not only have shareholders allowed it to be thus misinterpreted, but legislators have so little understood their duties as to have endorsed the mis­in­ter­pre­ta­tion. To this simple cause has been owing most of our railway-companies’ disasters. Abnormal facilities for getting capital have caused reckless competition in extension-making and branch-making, and in needless opposition lines, got up to be purchased by the companies they threatened. Had each new scheme been {157} executed by an independent body of shareholders, without any guarantee from another company—without any capital raised by preference shares—there would have been little or none of the ruinous expenditure we have seen. Something like a hundred millions of money would have been saved, and thousands of families preserved from misery, had the proprietary-contract been enforced according to the dictates of pure equity.

These cases go far to justify our position. The general reasons we gave for thinking that the ethics of immediate experience must be enlightened by abstract ethics, to ensure correct guidance, are strongly enforced by these instances of the gigantic errors which are made when the dictates of abstract ethics are ignored. The complex estimates of relative expediency, cannot do without the clue furnished by the simple deductions of absolute expediency.

We propose to study the treatment of criminals from this point of view. And first, let us set down those temporary requirements which have hitherto prevented, and do still, in part, prevent the establishment of a just system.

The same average popular character which necessitates a rigorous form of government, necessitates also a rigorous criminal code. Institutions are ultimately determined by the natures of the citizens living under them; and when these citizens are too impulsive or selfish for free institutions, and unscrupulous enough to supply the requisite staff of agents for maintaining tyrannical institutions, they are proved by implication to be citizens who will tolerate, and will probably need, severe forms of punishment. The same mental defect underlies both results. The character which originates and sustains political liberty, is a character swayed by remote considerations—a character not at the mercy of immediate temptations, but one which contemplates the consequences likely to arise in future. We have only to remember that, among ourselves, a political encroachment is {158} resisted, not because of any direct evil it inflicts, but because of the evils likely hereafter to flow from it, to see how the maintenance of freedom presupposes the habit of weighing distant results, and being chiefly guided by them. Conversely, it is manifest that men who dwell only in the present, the special, the concrete—who do not realize with clearness the contingencies of the future—will put little value on those rights of citizenship which profit them nothing, save as a means of warding off unspecified evils that can possibly affect them only at a distant time in an obscure way. Well, is it not obvious that the forms of mind thus contrasted, will require different kinds of punishment for misconduct? To restrain the second, there must be penalties which are severe, prompt, and specific enough to be vividly conceived; while the first may be deterred by penalties which are less definite, less intense, less immediate. For the more civilized, dread of a long, monotonous, criminal discipline may suffice; but for the less civilized there must be inflictions of bodily pain and death. Thus we hold, not only that a social condition which generates a harsh form of government, also generates harsh retributions; but also, that in such a social condition, harsh retributions are requisite. And there are facts which illustrate this. Witness the case of one of the Italian states, in which the punishment of death having been abolished in conformity with the wish of a dying duchess, assassinations increased so greatly that it became needful to re-establish it.

Besides the fact that in the less-advanced stages of civilization, a bloody penal code is both a natural product of the time and a needful restraint for the time, there must be noted the fact that a more equitable and humane code could not be carried out from want of fit ad­min­i­stra­tion. To deal with delinquents not by short and sharp methods but by such methods as abstract justice indicates, implies a class of agencies too complicated to exist in a low society, {159} and a class of officers more trustworthy than can be found among its citizens. Especially would the equitable treatment of criminals be impracticable where the amount of crime was very great. The number to be dealt with would be unmanageable. Some simpler method of purging the community of its worst members becomes, under such circumstances, a necessity.

The inapplicability of an absolutely just system of penal discipline to a barbarous or semi-barbarous people, is thus, we think, as manifest as is the inapplicability of an absolutely just form of government to them. And in the same manner that, for some nations, a despotism is warranted; so may a criminal code of the extremest severity be warranted. In either case the defence is, that the institution is as good as the average character of the people permits—that less stringent institutions would entail social confusion and its far more severe evils. Bad as a despotism is, yet where anarchy is the only alternative, we must say that, as anarchy would bring greater suffering than despotism brings, despotism is justified by the circumstances. And similarly, however inequitable in the abstract were the beheadings, crucifyings, and burnings of ruder ages, yet, if it be shown that, without penalties thus extreme, the safety of society could not have been insured—if, in their absence, the increase of crime would have inflicted a larger total of evil, and that, too, on peaceable members of the community; then it follows that morality warranted this severity. In the one case, as in the other, we must say that, measured by the quantities of pain respectively inflicted and avoided, the course pursued was the least wrong; and to say that it was the least wrong is to say that it was relatively right.

But while we thus admit all that can be alleged by the defenders of Draconian codes, we go on to assert a correlative truth which they overlook. While fully recognizing the evils that must follow the premature establishment of a {160} penal system dictated by pure equity, let us not overlook the evils that have arisen from altogether rejecting the guidance of pure equity. Let us note how terribly the one-sided regard for immediate expediency has retarded the ameliorations from time to time demanded.

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.

“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.

Second, we are warranted by this highest authority in restricting the actions of the offender as much as is needful to prevent further aggressions. Any citizen who will not allow others to fulfil the conditions to complete life—who takes away the produce of his neighbour’s labour, or deducts from that bodily health and comfort which his neighbour has earned by good conduct, must be forced to desist. And society is warranted in using such force as may be found requisite. Equity justifies the fellow-citizens of such a man in limiting the free exercise of his faculties to the extent necessary for preserving the free exercise of their own faculties.

But now mark that absolute morality countenances no restraint beyond this—no gratuitous inflictions of pain, no revengeful penalties. The conditions it insists on being such as make possible complete life, we cannot rightly abrogate {167} these conditions, even in the person of a criminal, further than is needful to prevent greater abrogations of them. Freedom to fulfil the laws of life being the thing insisted on, to the end that the sum of life may be the greatest possible, it follows that the life of the offender must be taken into account as an item in this sum. We must permit him to live as completely as consists with social safety. It is commonly said that the criminal loses all his rights. This may be so according to law, but it is not so according to justice. Such portion of them only is justly taken away, as cannot be left to him without danger to the community. Those exercises of faculty, and consequent benefits, which are possible under the necessary restraint, cannot be equitably denied. If any do not think it proper that we should be thus regardful of an offender’s claims, let them consider for a moment the lesson which Nature reads us. We do not find that those processes of life by which bodily health is maintained, are miraculously suspended in the person of the prisoner. In him, as in others, good digestion waits on appetite. If he is wounded, the healing process goes on with the usual rapidity. When he is ill, as much effect is expected from the vis medicatrix naturÆ by the medical officer, as in one who has not transgressed. His perceptions yield him guidance as they did before he was imprisoned; and he is capable of much the same pleasurable emotions. When we thus see that the beneficent arrangements of things, are no less uniformly sustained in his person than in that of another, are we not bound to respect in his person such of these beneficent arrangements as we have power to thwart? are we not bound to interfere with the laws of life no further than is needful? If any still hesitate, there is another lesson for them having the same implication. Whoso disregards any one of those simpler laws of life out of which, as we have shown, the moral laws originate, has to bear the evil necessitated by the transgression—just that, and no more. If, careless of your footing, you fall, the {168} consequent bruise, and possibly some constitutional disturbance entailed by it, are all you have to suffer: there is not the further gratuitous penalty of a cold or an attack of small-pox. If you have eaten something which you know to be indigestible, there follow certain visceral derangements and their concomitants; but, for your physical sin, there is no vengeance in the shape of a broken bone or a spinal affection. The punishments, in these and other cases, are neither greater nor less than flow from the natural workings of things. Well, should we not with all humility follow this example? Must we not infer that, similarly, a citizen who has transgressed the conditions to social welfare, ought to bear the needful penalties and restraints, but nothing beyond these? Is it not clear that neither by absolute morality nor by Nature’s precedents, are we warranted in visiting on him any pains besides those involved in remedying, as far as may be, the evil committed, and preventing other such evils? To us it seems manifest that if society exceeds this, it trespasses against the criminal.

Those who think that we are tending towards a mischievous leniency, will find that the next step in our argument disposes of any such objection; for while equity forbids us to punish the criminal otherwise than by making him suffer the natural consequences, these, when rigorously enforced, are quite severe enough.

Society having proved in the high court of absolute morality, that the offender must make restitution or compensation, and submit to the restraints requisite for public safety; and the offender having obtained from the same court the decision, that these restraints shall be no greater than the specified end requires; society thereupon makes the further demand that, while living in durance, the offender shall maintain himself; and this demand absolute morality at once endorses. The community having taken measures for self-preservation, and having inflicted on the aggressor no punishments or disabilities beyond those {169} involved in these necessary measures, is no further concerned in the matter. With the support of the prisoner it has no more to do than before he committed the crime. It is the business of society simply to defend itself against him; and it is his business to live as well as he can under the restrictions society is obliged to impose on him. All he may rightly ask is, to have the opportunity of labouring, and exchanging the produce of his labour for necessaries; and this claim is a corollary from that already admitted, that his actions shall not be restricted more than is needful for the public safety. With these opportunities, however, he must make the best of his position. He must be content to gain as good a livelihood as the circumstances permit; and if he cannot employ his powers to the best advantage, if he has to work hard and fare scantily, these evils must be counted among the penalties of his transgression—the natural reactions of his wrong action.

On this self-maintenance equity sternly insists. The reasons which justify his imprisonment, equally justify the refusal to let him have any other sustenance than he earns. He is confined that he may not further interfere with the complete living of his fellow-citizens—that he may not again intercept any of those benefits which the order of Nature has conferred on them, or any of those procured by their exertions and careful conduct. And he is required to support himself for exactly the same reasons—that he may not interfere with others’ complete living—that he may not intercept the benefits they earn. For, if otherwise, whence must come his food and clothing? Directly from the public stores, and indirectly from the pockets of all tax-payers. And what is the property thus abstracted from tax-payers? It is the equivalent of so much benefit earned by labour. It is so much means to complete living. And when this property is taken away—when the toil has been gone through, and the produce of it is intercepted by the tax-gatherer on behalf of the convict; the conditions to {170} complete life are broken: the convict commits by deputy a further aggression on his fellow-citizens. It matters not that such abstraction is made according to law. We are here considering the dictum of that authority which is above law; and which law ought to enforce. And this dictum we find to be, that each individual shall take the evils and benefits of his own conduct—that the offender must suffer, as far as is possible, all pains entailed by his offence; and must not be allowed to visit part of them on the unoffending. Unless the criminal maintains himself, he indirectly commits an additional crime. Instead of repairing the breach he has made in the conditions to complete social life, he widens this breach. He inflicts on others that very injury which the restraint imposed on him was to prevent. As certainly, therefore, as such restraint is warranted by absolute morality; so certainly does absolute morality warrant us in refusing him gratuitous support.

These, then, are the requirements of an equitable penal system:—That the aggressor shall make restitution or compensation; that he shall be placed under the restraints requisite for social security; that neither any restraints beyond these, nor any gratuitous penalties, shall be inflicted on him; and that while living in confinement, or under surveillance, he shall maintain himself. We are not prepared to say that such dictates may at once be fully obeyed. Already we have admitted that the deductions of absolute expediency must, in our transition state, be qualified by the inductions of relative expediency. We have pointed out that in rude times, the severest criminal codes were morally justified if, without them, crime could not be repressed and social safety insured. Whence, by implication, it follows that our present methods of treating criminals are warranted, if they come as near to those of pure equity as circumstances permit. That any system now feasible must fall short of the ideal sketched out, is probable. It may be that the enforcement of restitution or {171} compensation, is in many cases impracticable. It may be that on some convicts, penalties more severe than abstract justice demands must be inflicted. On the other hand, it may be that entire self-maintenance would entail on the wholly-unskilled criminal, a punishment too grievous to be borne. But any such shortcomings do not affect our argument. All we insist on is, that the commands of absolute morality shall be obeyed as far as possible—that we shall fulfil them up to those limits beyond which experiment proves that more evil than good results—that, ever keeping in view the ideal, each change we make shall be towards its realization.

But now we are prepared to say, that this ideal may be in great part realized at the present time. Experience in various countries, under various circumstances, has shown that immense benefits result from substituting for the old penal systems, systems that approximate to that above indicated. Germany, France, Spain, England, Ireland, and Australia, send statements to the effect that the most successful criminal discipline, is a discipline of decreased restraints and increased self-dependence. And the evidence proves the success to be greatest, where the nearest approach is made to the arrangements prescribed by abstract justice. We shall find the facts striking: some of them even astonishing.

When M. Obermair was appointed Governor of the Munich State-Prison—

“He found from 600 to 700 prisoners in the jail, in the worst state of insubordination, and whose excesses, he was told, defied the harshest and most stringent discipline; the prisoners were all chained together, and attached to each chain was an iron weight, which the strongest found difficulty in dragging along. The guard consisted of about 100 soldiers, who did duty not only at the gates and around the walls, but also in the passages, and even in the workshops and dormitories; and, strangest of all protections against the possibility of an outbreak or individual invasion, twenty to thirty large savage dogs, of the bloodhound breed, were let loose at night in the passages and courts to keep their watch and ward. {172} According to his account the place was a perfect Pandemonium, comprising, within the limits of a few acres, the worst passions, the most slavish vices, and the most heartless tyranny.”

M. Obermair gradually relaxed this harsh system. He greatly lightened the chains; and would, if allowed, have thrown them aside. The dogs, and nearly all the guards, were dispensed with; and the prisoners were treated with such consideration as to gain their confidence. Mr. Baillie-Cochrane, who visited the place in 1852, says the prison-gates were

“Wide open, without any sentinel at the door, and a guard of only twenty men idling away their time in a guard-room off the entrance-hall. .... None of the doors were provided with bolts and bars; the only security was an ordinary lock, and as in most of the rooms the key was not turned, there was no obstacle to the men walking into the passage. .... Over each workshop some of the prisoners with the best characters were appointed overseers, and M. Obermair assured me that if a prisoner transgressed a regulation, his companions generally told him, ‘Es ist verboten’ (it is forbidden), and it rarely happened that he did not yield to the opinion of his fellow-prisoners. .... Within the prison walls every description of work is carried on; the prisoners, divided into different gangs and supplied with instruments and tools, make their own clothes, repair their own prison walls, and forge their own chains, producing various specimens of manufacture which are turned to most excellent account—the result being, that each prisoner, by occupation and industry, maintains himself; the surplus of his earnings being given him on his emancipation, avoids his being parted with in a state of destitution.”

And further, the prisoners “associate in their leisure hours, without any check on their intercourse, but at the same time under an efficient system of observation and control”—an arrangement by which, after many years’ experience, M. Obermair asserts that morality is increased.

And now what has been the result? During his six-years’ government of the Kaiserslauten (the first prison under his care), M. Obermair discharged 132 criminals, of which number 123 have since conducted themselves well, and 7 have been recommitted. From the Munich prison, between 1843 and 1845, 298 prisoners were discharged.

Of these, 246 have been restored, improved, to society. Those whose characters are doubtful, but have not been {173} remanded for any criminal act, 26; again under examination, 4; punished by the police, 6; remanded, 8; died, 8. This statement, says M. Obermair, “is based on irrefutable evidence.” And to the reality of his success, we have the testimony not only of Mr. Baillie-Cochrane, but of the Rev. C. H. Townsend, Mr. George Combe, Mr. Matthew Hill, and Sir John Milbanke, our Envoy at the Court of Bavaria.

Take, again, the case of Mettray. Every one has heard something about Mettray, and its success as a reformatory of juvenile criminals. Observe how nearly the successful system there pursued, conforms to the abstract principles above enunciated.

This “Colonie Agricole” is “without wall or enclosure of any sort, for the purposes at least of confinement;” and except when for some fault a child is temporarily put in a cell, there is no physical restraint. The life is industrial: the boys being brought up to trades or agriculture as they prefer; and all the domestic services being discharged by them. “They all do their work by the piece;” are rewarded according to the judgment of the chef d’atelier; and, a portion being placed at the disposal of the child, the rest is deposited in the savings-bank at Tours. “A boy in receipt of any money has to make payment for any part of his dress which requires to be renewed before the stated time arrives at which fresh clothing is given out; ..... on the other hand, if his clothes are found in good condition at such time, he receives the benefit of it by having the money which would have been laid out in clothes placed to his account. Two hours per day are allowed for play. Part-singing is taught; and if a boy shows any turn for drawing he receives a little instruction in it. ..... Some of the boys also are formed into a fire-brigade, and have rendered at times substantial assistance in the neighbourhood.” In which few leading facts do we not clearly see that the essential peculiarities {174} are—no more restraint than is absolutely necessary; self-support as far as possible; extra benefits earned by extra labour; and as much gratifying exercise of faculties as the circumstances permit.

The “intermediate system” which has of late been carried out with much success in Ireland, exemplifies, in a degree, the practicability of the same general principles. Under this system, prisoners working as artizans are allowed “such a modified degree of liberty as shall in various ways prove their power of self-denial and self-dependence, in a manner wholly incompatible with the rigid restraints of an ordinary prison.” An offender who has passed through this stage of probation, is tested by employment “on messenger’s duties daily throughout the city, and also in special works required by the department outside the prison-walls. The performance of the duties of messengers entails their being out until seven or eight in the evening, unaccompanied by an officer; and although a small portion of their earnings is allowed them weekly, and they would have the power of compromising themselves if so disposed, not one instance has as yet taken place of the slightest irregularity, or even the want of punctuality, although careful checks have been contrived to detect either, should it occur.” A proportion of their prison-earnings is set aside for them in a savings-bank; and to this they are encouraged to add during their period of partial freedom, with a view to subsequent emigration. The results are:—“In the penitentiary the greatest possible order and regularity, and an amount of willing industry performed that cannot be obtained in the prisons.” Employers to whom prisoners are eventually transferred, “have on many occasions returned for others in consequence of the good conduct of those at first engaged.” And according to Captain Crofton’s pamphlet of 1857, out of 112 conditionally discharged during the previous year, 85 were going on satisfactorily, “9 have been discharged {175} too recently to be spoken of, and 5 have had their licences revoked. As to the remaining 13, it has been found impossible to obtain accurate information, but it is supposed that 5 have left the country, and 3 enlisted.”

The “mark system” of Captain Maconochie, is one which more fully carries out the principle of self-maintenance, under restraints no greater than are needful for safety. The plan is to join with time-sentences certain labour-sentences—specific tasks to be worked out by the convicts. “No rations, or other supplies of any kind, whether of food, bedding, clothing, or even education or indulgences, to be given gratuitously, but all to be made exchangeable, at fixed rates, at the prisoners’ own option, for marks previously earned; it being understood, at the same time, that only those shall count towards liberation which remain over and above all so exchanged; the prisoners being thus caused to depend for every necessary on their own good conduct; and their prison-offences to be in like manner restrained by corresponding fines imposed according to the measures of each.” The use of marks, which thus play the part of money, was first introduced by Captain Maconochie in Norfolk Island. Describing the working of his method, he says—

“First, it gave me wages and then fines. One gave me willing and progressively-skilled labourers, and the other saved me from the necessity of imposing brutal and demoralizing punishments. .... My form of money next gave me school fees. I was most anxious to encourage education among my men, but as I refused them rations gratuitously, so I would not give them schooling either, but compelled them to yield marks to acquire it. .... I never saw adult schools make such rapid progress. .... My form of money next gave me bailbonds in cases of minor or even great offences; a period of close imprisonment being wholly or in part remitted in consideration of a sufficient number of other prisoners of good character becoming bound, under a penalty, for the improved conduct of the culprit.”

Even in the establishment of a sick-club and a burial-club, Captain Maconochie applied “the inflexible principle of giving nothing for nothing.” That is to say, here, as throughout, he made the discipline of the prisoners as {176} much like the discipline of ordinary life as possible: let them experience just such good or evil as naturally flowed from their conduct—a principle which he rightly asserts is the only true one. What were the effects? The extreme debasement of Norfolk Island convicts was notorious; and on a preceding page we have described some of the horrible sufferings inflicted on them. Yet, starting with these most demoralized of criminals, Captain Maconochie obtained highly-favourable results. “In four years,” he says, “I discharged 920 doubly-convicted men to Sydney, of whom only 20, or 2 per cent., had been re-convicted up to January, 1845;” while, at the same time, the ordinary proportion of re-convicted Van Diemen’s Land men, otherwise trained, was 9 per cent. “Captain Maconochie,” writes Mr. Harris in his Settlers and Convicts, “did more for the reformation of these unhappy wretches, and amelioration of their physical circumstances, than the most sanguine practical mind could beforehand have ventured even to hope.” Another witness says—“a reformation far greater than has been hitherto effected in any body of men by any system, either before or after yours, has taken place in them.” “As pastor of the island, and for two years a magistrate, I can prove that at no period was there so little crime,” writes the Rev. B. Naylor. And Thomas H. Dixon, Chief Superintendent of Convicts in Western Australia, who partially introduced the system there in 1856, asserts that not only was the amount of work done under it extraordinary, but that “even although the characters of some of the party were by no means good previously (many of them being men whose licences had been revoked in England), yet the transformation which in this and all other respects they underwent, was very remarkable indeed.” If such were the results, when the method was imperfectly carried out (for the Government all along refused to give any fixed value to the marks as a means to liberation); what might be {177} expected if its motives and restraints were allowed their full influence?

Perhaps, however, of all evidence, the most conclusive is that afforded by the prison of Valencia. When, in 1835, Colonel Montesinos was appointed governor, “the average of re-committals was from 30 to 35 per cent. per annum—nearly the same that is found in England and other countries in Europe; but such has been the success of his method, that for the last three years there has not been even one re-committal to it, and for the ten previous years they did not, on an average, exceed 1 per cent.” And how has this marvellous change been brought about? By diminished restraint and industrial discipline. The following extracts, taken irregularly from Mr. Hoskins’s Account of the Public Prison at Valencia, will prove this:—

“When first the convict enters the establishment he wears chains, but on his application to the commander they are taken off, unless he has not conducted himself well.”

“There are a thousand prisoners, and in the whole establishment I did not see above three or four guardians to keep them in order. They say there are only a dozen old soldiers, and not a bar or bolt that might not be easily broken—apparently not more fastenings than in any private house.”

“When a convict enters, he is asked what trade or employment he will work at or learn, and above forty are open to him. .... There are weavers and spinners of every description; .... blacksmiths, shoemakers, basketmakers, ropemakers, joiners, cabinetmakers, making handsome mahogany drawers; and they had also a printing machine hard at work.”

“The labour of every description for the repair, rebuilding, and cleaning the establishment, is supplied by the convicts. They were all most respectful in demeanour, and certainly I never saw such a good-looking set of prisoners, useful occupations (and other considerate treatment) having apparently improved their countenances. .... [And besides a] garden for exercise planted with orange trees, there was also a poultry yard for their amusement, with pheasants and various other kinds of birds; washing-houses, where they wash their clothes; and a shop, where they can purchase, if they wish, tobacco and other little comforts out of one-fourth of the profits of their labour, which is given to them. Another fourth they are entitled to when they leave; the other half goes to the establishment, and often this is sufficient for all expenses, without any assistance from the Government.”

Thus the highest success, regarded by Mr. Hoskins as {178} “really a miracle,” is achieved by a system most nearly conforming to those dictates of absolute morality on which we have insisted. The convicts are almost, if not quite, self-supporting. They are subject neither to gratuitous penalties nor unnecessary restrictions. While made to earn their living, they are allowed to purchase such enjoyments as consist with their confinement: the avowed principle being, in the words of Colonel Montesinos, to “give as much latitude to their free agency as can be made conformable to discipline at all.” Thus they are (as we found that equity required they should be) allowed to live as satisfactorily as they can, under such restraints only as are needful for the safety of their fellow-citizens.

To us it appears extremely significant that there should be so close a correspondence between a priori conclusions, and the results of experiments tried without reference to such conclusions. On the one hand, neither in the doctrines of pure equity with which we set out, nor in the corollaries drawn from them, is there any mention of criminal-reformation: our concern has been solely with the rights of citizens and convicts in their mutual relations. On the other hand, those who have carried out the improved penal systems above described, have had almost solely in view the improvement of the offender: the just claims of society, and of those who sin against it, having been left out of the question. Yet the methods which have succeeded so marvellously in decreasing criminality, are the methods which most nearly fulfil the requirements of abstract justice.

That the most equitable system is the one best calculated to reform the offender, may indeed be deductively shown. The internal experience of every one must prove to him, that excessive punishment begets, not penitence, but indignation and hatred. So long as an aggressor suffers nothing beyond the evils which have naturally resulted from his misconduct—so long as he perceives that his fellow-men have done no more than was needful for self-defence—he {179} has no excuse for anger; and is led to contemplate his crime and his punishment as cause and effect. But if gratuitous sufferings are inflicted on him, a sense of injustice is produced. He regards himself as an injured man. He cherishes animosity against all who have brought this harsh treatment on him. Glad of any plea for forgetting the injury he has done to others, he dwells instead on the injury others have done to him. Thus nurturing a desire for revenge rather than atonement, he re-enters society not better but worse; and if he does not commit further crimes, as he often does, he is restrained by the lowest of motives—fear. Again, this industrial discipline, to which criminals subject themselves under a purely equitable system, is the discipline they especially need. Speaking generally, we are all compelled to work by the necessities of our social existence. For most of us this compulsion suffices; but there are some whose aversion to labour cannot be thus overcome. Not labouring, and yet needing sustenance, they are compelled to obtain it in illegitimate ways; and so bring on themselves the legal penalties. The criminal class being thus in great part recruited from the idle class; and the idleness being the source of the criminality; it follows that a successful discipline must be one which shall cure the idleness. The natural compulsions to labour having been eluded, the thing required is that the offender shall be so placed that he cannot elude them. And this is just what is done under the system we advocate. Its action is such that men whose natures are ill-adapted to the conditions of social life, bring themselves into a position in which a better adaptation is forced on them by the alternative of starvation. Lastly, let us not forget that this discipline which absolute morality dictates, is salutary, not only because it is industrial, but because it is voluntarily industrial. As we have shown, equity requires that the confined criminal shall be left to maintain himself—that is, shall be {180} left to work much or little, and to take the consequent plenitude or hunger. When, therefore, under this sharp but natural spur, a prisoner begins to exert himself, he does so by his own will. The process which leads him into habits of labour, is a process by which his self-control is strengthened; and this is what is wanted to make him a better citizen. It is to no purpose that you make him work by external coercion; for when he is again free, and the coercion absent, he will be what he was before. The coercion must be an internal one, which he shall carry with him out of prison. It avails little that you force him to work; he must force himself to work. And this he will do, only when placed in those conditions which equity dictates.

Here, then, we find a third order of evidences. Psychology supports our conclusion. The various experiments above detailed, carried out by men who had no political or ethical theories to propagate, have established facts which we find to be quite concordant, not only with the deductions of absolute morality, but also with the deductions of mental science. Such a combination of different kinds of proof, cannot, we think, be resisted.

And now let us try whether, by pursuing somewhat further the method thus far followed, we can see our way to the development of certain improved systems which are coming into use.

Equity requires that the restraint of the criminal shall be as great as is needful for the safety of society; but not greater. In respect to the quality of the restraint, there is little difficulty in interpreting this requirement; but there is considerable difficulty in deciding on the duration of the restraint. No obvious mode presents itself of finding out how long a transgressor must be held in legal bondage, to insure society against further injury from him. A longer period than is necessary, implies an actual injustice to {181} the offender. A shorter period than is necessary, implies a potential injustice to society. And yet, without good guidance, one or other of these extremes is almost sure to be fallen into.

At present, the lengths of penal sentences are fixed in a manner that is wholly empirical. For offences defined in certain technical ways, Acts of Parliament assign transportations and imprisonments, having durations not greater than so much nor less than so much: these partially-determined periods being arbitrarily fixed by legislators, under the promptings of moral feeling. Within the assigned limits the judge exercises his discretion; and in deciding on the time over which the restraint shall extend, he is swayed, partly by the special quality of the offence, partly by the circumstances under which it was committed, partly by the prisoner’s appearance and behaviour, partly by the character given to him. And the conclusion he arrives at after consideration of these data, depends very much on his individual nature—his moral bias and his theories of human conduct. Thus the mode of fixing the lengths of penal restraints, is from beginning to end, little else than guessing. How ill this system of guessing works, we have abundant proofs. “Justices’ justice,” which illustrates it in its simplest form, has become a bye-word; and the decisions of higher criminal court frequently err in the directions of both undue severity and undue lenity. Daily there occur cases of extremely-trifling transgressions visited with imprisonments of considerable lengths; and daily there occur cases in which the punishments are so inadequate, that the offenders time after time commit new crimes, when time after time discharged from custody.

Now the question is whether, in place of this purely empirical method which answers so ill, equity can guide us to a method which shall more correctly adjust the period of restraint to the requirement. We believe it can. We believe that by following out its dictates, we shall arrive {182} at a method that is in great measure self-acting; and therefore less liable to be vitiated by errors of individual judgment or feeling.

We have seen that were the injunctions of absolute morality obeyed, every transgressor would be compelled to make restitution or compensation. Throughout a considerable range of cases, this would itself involve a period of restraint varying in proportion to the magnitude of the offence. It is true that when the malefactor possessed ample means, the making restitution or compensation would usually be to him but a slight punishment. But though in these comparatively few cases, the regulation would fall short of its object, in so far as its effect on the criminal was concerned, yet in the immense majority of cases—in all cases of aggressions committed by the poorer members of the community—it would act with efficiency. It would involve periods of detention that would be longer or shorter according as the injury done was greater or less, and according as the transgressor was idle or industrious. And although between the injury done by an offender and his moral turpitude, there is no constant and exact proportion, yet the greatness of the injury done, affords, on the average of cases, a better measure of the discipline required, than do the votes of Parliamentary majorities and the guesses of judges.

But our guidance does not end here. An endeavour still further to do that which is strictly equitable, will carry us still nearer to a correct adjustment of discipline to delinquency. When, having enforced restitution, we insist on some adequate guarantee that society shall not again be injured, and accept any guarantee that is sufficient, we open the way to a self-acting regulator of the period of detention. Already our laws are in many cases satisfied with securities for future good behaviour. Already this system manifestly tends to separate the more vicious from the less vicious; seeing that, on the average, the difficulty of {183} finding securities is great in proportion as the character is bad. And what we propose is that this system, now confined to particular kinds of offences, shall be made general. But let us be more specific.

A prisoner on his trial calls witnesses to testify to his previous character—that is, if his character has been tolerably good. The evidence thus given weighs more or less in his favour, according to the respectability of the witnesses, their number, and the nature of their testimony. Taking into account these several elements, the judge forms his conception of the delinquent’s general disposition, and modifies the length of punishment accordingly. Now, may we not fairly say that if the current opinion respecting a convict’s character could be brought directly to bear in qualifying the statutory sentence, instead of being brought indirectly to bear, as at present, it would be a great improvement? Clearly the estimate made by a judge from such testimony, must be less accurate than the estimate made by the prisoner’s neighbours and employers. Clearly, too, the opinion expressed by such neighbours and employers in the witness-box, is less trustworthy than an opinion which entails on them serious responsibility. The desideratum is, that a prisoner’s sentence shall be qualified by the judgment of those who have had life-long experience of him; and that the sincerity of this judgment shall be tested by their readiness to act on it.

But how is this to be done? A very simple method of doing it has been suggested.8 When a convict has fulfilled his task of making restitution or compensation, let it be possible for one or other of those who have known him, to take him out of confinement, on giving adequate bail for his good behaviour. Always premising that such an arrangement shall be possible only under an official permit, to be withheld if the prisoner’s conduct has been unsatisfactory; and always premising that the person who offers bail shall {184} be of good character and means; let it be competent for such a one to liberate a prisoner by being bound on his behalf for a specific sum, or by undertaking to make good any injury which he may do to his fellow-citizens within a specified period. This will doubtless be thought a startling proposal. We shall, however, find good reasons to believe it might be safely acted on—nay, we shall find facts proving the success of a plan that is obviously less safe.

8 We owe the suggestion to the late Mr. Octavius H. Smith.