The Rationale of Punishment

Book II

Of Corporal Punishments

Chapter V


Another way in which a man is often made to suffer on the occasion of imprisonment, is the being made to pay money under the name of fees. This hardship, on the very first inspection, when deduced as a consequence from a sentence or warrant of imprisonment, can be classed under no other title than that of an abuse; for naturally it has just as much to do with imprisonment as hanging has.

This abuse is coeval with the first barbarous rudiments of our antient jurisprudence; when the magistrate had little more idea of the ends of justice than the freebooter; and the evils he inflicted were little more than a compensation for the evils he repressed. In those times of universal depravity, when the magistrate reaped almost as much profit from the plunder of those who were, or were pretended to be, guilty, as from the contributions of those who were acknowledged innocent; no pretext was too shallow to cover the enterprises of rapacity under the mask of justice.

All the colour which this abuse is capable of receiving, seems to have been taken from a quibbling and inhuman sarcasm. ``Since you have lodging found you'', says the gaoler to the prisoner, ``it is fit, like other lodgers, you should pay for it.'' Fit it certainly would be, if the lodger came there voluntarily; the only circumstance in the case which is wanting to make it a just demand instead of a cruel insult.

But the gaoler, like every other servant of the State, it will be said, and with perfect truth, must be satisfied for his trouble; and who more fit than the person who occasions it? I answer any person whatever; if contrary to the most obvious principles of justice, some one person must bear the whole charge of an institution, which if beneficial to any, is beneficial to all. I say anybody; because there is no person whose clear benefit from the punishment of the criminal (I am speaking here of the judicial, appointed punishment, the imprisonment; and I mean clear benefit after inconvenience has, been deducted) is not greater than the criminals. This would hold good were the peculiar circumstances of the criminal out of the question; but when these come to be considered, they add considerable force to the above conclusion. In the case of nineteen delinquents out of twenty, the utter want of all means of satisfying their lawful debts was the very cause and motive to the crime. Now then, whereas it is only possible in the case of a man taken at random that he has not wherewithal to pay, it is certain that in nineteen cases out of twenty the delinquent has not.

So powerful is the force of custom, that for a long series of years, Judges of the first rank, and country magistrates, none of whom but would have taken it ill enough to have had their wisdom or their humanity called in question, stand upon record as having given their allowance to this abuse. If any one of these magistrates had ever had the spirit to have refused this allowance, the gaoler would for a moment have remained unpaid, and from thenceforward the burthen would have been taken up by that public hand which, from the beginning, ought to have borne it.

So far is this hardship from being justifiable on the score of punishment, that in most, if not in all our prisons, it is inflicted indiscriminately on all who enter, innocent or guilty. It is inflicted at all events, when it is not known but they may be innocent: for it is inflicted on them at first entrance when committed only for safe custody. This is not all; it is inflicted on men after they have been proved to be innocent. Even this is not all; to fill up the measure of oppression, it is inflicted on them because they have been proved innocent. Prisoners, after they have been acquitted, are, as if to make them amends for the unmerited sufferings they have undergone, loaded with a heavy fine, professedly on the very ground of their having been acquitted. In some gaols, of a person acquitted of murder a sum of money is exacted, under the name of an acquittal, equal to what it costs an ordinary working man to maintain himself for a quarter of a year: a sum such as not one man in ten of that class, that is, of the class which includes a great majority of the whole people, is ever master of during the course of his whole life.

[RP, Book II, Chapter IV] [RP, Book II, Chapter VI]