The Rationale of Punishment

Book II

Of Corporal Punishments

Chapter X


Active punishment is that which is inflicted on a man by obliging, or to use another word, compelling him to act in this or that particular way, to exert this or that particular species of action.

There are two kinds of means by which a man may be compelled to act, physical and moral; the first applies itself to his body, the other to his mind, to his faculty of volition.

The actions which a man may be compelled to perform by physical means are so few, and so unprofitable, both to the patient and to others, as not to be worth taking into the account.

When the instrument is of the moral kind, it is by acting on the volition that it produces its effect. The only instrument that is of a nature to act immediately upon the volition, is an idea; but not every idea; only an idea of pleasure or of pain, as about to ensue from the performance or non-performance of the act which is the object of the volition.

It cannot be an idea of pleasure which can so act upon the volition as to give birth to an act the performance of which shall be a punishment; it must therefore be an idea of pain,---of any pain, no matter what, so it be to appearance greater than the pleasure of abstaining from the performance of the penal act.

It is manifest, therefore, that when a punishment of the laborious kind is appointed, another punishment must necessarily be appointed along with it. There are,therefore, in every such case, two different punishments at least necessarily concerned. One, which is the only one directly and originally intended, the laborious punishment itself; which may be styled the principal or proper punishment: the other, in case of the former not being submitted to, is called in to its assistance, and may be styled the subsidiary punishment.

This subsidiary punishment may be of any kind that, in point of quantity, is great enough. It ought not, however, to be likewise of the laborious kind; since in that case, as well as in the case of the principal punishment, the will of the patient is necessary to constitute the punishment; and to determine the will, some incident is necessary that does not depend upon the will. It will be necessary, therefore, to employ such punishments as are purely passive, or those restrictive punishments in which the instrument is purely physical.

In regard to this class of punishments, one thing is here to be noted with reference to the instrument. In punishments of this kind, there is a link or two interposed between the instrument and the pain produced by means of it. The instrument first produces the volition, that volition produces a correspondent external act: and it is that act which is the immediate cause by which the pain here in question is produced. This punishment then, we see, has this remarkable circumstance to distinguish it from other punishments, it is produced immediately by the patients own act: it is the patient who, to avoid a greater punishment, inflicts it on himself.

What then is the sort of act that is calculated to produce pain in the case of active punishment? It admits not of any description more particular than this: that it is any act whatever that a man has a mind not to do; or in other words that on any account whatever is disagreeable to him.

An occupation is a series of acts of the same kind, or tending to the same end. An occupation may be disagreeable on a positive or a negative account; as being productive, in a manner more or less immediate, of some positive pain, or as debarring from the exercise of some more agreeable occupation.

Considered in itself, an occupation may be either painful, pleasurable, or indifferent; but continued beyond a certain time, and shout interruption (such is the constitution of man's nature,) every occupation whatsoever become disagreeable: not only so, but such as were in the beginning pleasurable become, by their continuance more disagreeable than such as were originally indifferent.

To make the sum of his occupations pleasurable, every man must therefore be at liberty to change from one to another, according his taste hence it is that any occupation which for a certain proportion of his time, a man is compelled to exercise, without the liberty of changing to another, becomes disagreeable, and in short becomes a punishment.

Active punishments are as various as the occupations in which, for the various purposes of life, men can have occasion to be employed. These being usually inflicted on all offenders indiscriminately, have been such as all orders indiscriminately have been physically qualified to undergo. They have consisted commonly in various exertions of muscular force, in which there has been little or no dexterity required in the manner of its application. In general, they hare been such as to produce a profit: a collateral benefit in addition to that expected from the punishment as such.

Among the modes of penal labour, a very common one has been that of rowing. This is an exercise performed chiefly by main strength, with very little mixture of skill, and that presently attained. Some vessels, of a bulk large enough to bear any sea, have been made so as to be put in motion in this manner, even without the help of sails. This occupation is more unpleasant in itself than that of an ordinary seamen, as having less variety, besides that the rowers are confined by chains. Such vessels are called gallies, and the rowers gally-slaves. This punishment, though unknown in England, is in use in most of the maritime states of Europe, and particularly in the Mediterranean and Adriatic Seas.

In many counties, malefactors have been employed in various public works, as in the cleansing of harbours and the streets of towns, in making roads, building and repairing fortifications, and working in mines.

Working in the mines is a punishment employed in Russia and in Hungary. In Hungary the mines are of quicksilver, and the unwholesome effects of that metal, upon a person who is exposed to the effluvia of it for length of time, may be one reason for employing criminals in that work, in preference to other persons.

Beating hemp is the most common employment which delinquents are put to in our workhouses. Persons of both sexes being subjected to it, without distinction.

From the nature of the service, active punishments may be distinguished into two sorts, specific and indiscriminate. I call it specific, when it consists in the being obliged to do such and such a particular kind or kinds of work: indiscriminate, when it consists in the being obliged to do not any kind of work in particular, but every kind of work in general, which it shall please such or such a person to prescribe. If such person take all the profit of the world he is called a master. If the profit is received by some other person, he is called a keeper, or overseer. There are cases of a mixed nature, in which, in certain respects, the servitude is indiscriminate, as to other respects, specific.

At Warsaw, before the partition of Poland, there was a public workhouse, in which convicts were confined in ordinary to particular employments determined by the laws or custom of the place. To this workhouse, however, any person who thought proper might apply, and upon giving security for their forthcomingness, and paying a certain stipulated price for their use, a certain number of the convicts were allotted to him, to be employed in any piece of work for a given time. The services they were employed upon were generally of a rough kind, such as digging a ditch, or paving a court; and a soldier, or a party of soldiers, according to the number of convicts thus employed, was placed over them as a guard.

This custom was also in use in Russia.

This distinction between specific and indiscriminate servitude, may be illustrated by two examples, derived from the English law.

The example of specific punishment is afforded by the statute which directs the employment of certain malefactors on board the hulks, in in improving the navigation of the Thames. The statute determines the kind of labour, and the subsidiary punishments by which it is to be enforced.

Indiscriminate servitude is part of the punishment inflicted by our laws under the name of transportation. This servitude is sometimes limited as to its duration, but is without limitation, and without restriction, in respect of the services which may be required.

All these kinds of labour, whether indiscriminate or specific, require as a necessary accompaniment that the individual should be upon that spot where the business is to be done. Some import imprisonment; all of them import restraint upon occupations, to wit, upon all occupations incompatible with those in which they constrain a man to employ himself. The degree of this restraint is in a manner indefinite. To lay a man, therefore, under a particular constraint of any kind, is for that time to lay him under an almost universal restraint. The clear value then of the pleasure which a man loses by being compelled to any particular occupation, is equal to that of the greatest of all the pleasures which, had it not been for the compulsion, he might have procured for himself.

Upon examining laborious punishment, we shall find it to possess the properties to be wished for in a mode of punishment, in greater perfection, upon the whole, than any other single punishment.

1. It is convertible to profit. Labour is in fact the very source of profit. Not that, after all, its power in this way is so extensive as that of pecuniary punishment. For, from the punishment of one man in this way, all the profit that is to be reaped is that which is producible by the labour of one man; a limited and never very ample quantity. On the other hand, from the punishment of a man in the pecuniary way, it may happen that a profit shall be reaped equal to the labour of many hundred men. The difference, however, in favour of this punishment is, that money is a casual fund; labour one that cannot fail. Indeed, upon the whole, though pecuniary punishment be in particular instances capable of being more profitable, yet, considering how large a proportion of mankind, especially of those most liable to commit the most frequent and troublesome kinds of crimes, have no other possession worth estimating than their labour: laborious punishment, if managed as it might and ought to be, may perhaps be deemed the most profitable upon the whole.

2. In point of frugality to the state, laborious punishment, considered by itself, is as little liable to objection as any other can be. I say, considered by itself: for, when coupled with imprisonment, as it can hardly but be in the case of public servitude, it is attended with those expenses to the public which have been noticed under the article of imprisonment. These, however, are not to be charged to the account of the laborious part of the punishment: so that the advantage which laborious punishment has on this score over simple imprisonment is quite a clear one. But the former of these two punishments, though separable from the latter in idea, is not separable in practice. Imprisonment may be made to subsist without labour: but forced labour cannot be made to subsist without imprisonment. The advantage when, which servitude has in this respect, when compared with imprisonment, ceases when compared with any other mode of punishment. However the profit gained by the one part is enough, under good management, to do more than balance the expense occasioned by the other. So that upon the whole it has the advantage, in point of economy, over any other mode of punishment but pecuniary.

3. It seems to stand equally clear of objection in point of equability. As to the restraint it involves, it accommodates itself of itself to each man's circumstances. For, with respect to each man, it has the effect of restraining him from following those occupations, whatever they may be, which are to him most pleasurable. The positive servitude, itself will be apt to sit heavier on one man than another. A man who has not been used to any kind of labour will suffer a good deal more, for some time at least, than one who has been used to labour, though of a different kind or degree from that in question. But this inconvenience may be pretty well obviated by a proper attention to the circumstances of individuals.

4. In point of variability, though it is not perfect throughout, yet it is perfect as far as it goes. In a very low degree it is not capable of subsisting; on account of the infamy it involves, at least in a country governed by European manners. One of the most odious acts of the reign of the Emperor, Joseph II, was the sentencing persons of high rank to labour in the public works. The Protestants of France considered the condemnation of their religious ministers to the galleys as a personal insult done to themselves: in this respect then it falls short of pecuniary punishment. After that exception it is capable of being varied to the utmost nicety: being variable as well in respect of intensity, as of duration.

5. In point of exemplarity it has no peculiar advantage; neither is it subject to any disadvantage. Symbols of suffering it has none belonging to itself: for the circumstance which distinguishes penal servitude from voluntary labour is but an internal circumstance---the idea of compulsion operating on the patient's mind. The symbols, however, that belong necessarily to the punishment it is naturally combined with, I mean imprisonment, apply to it of course; and the means of characterizing the condition of the patient by some peculiarity of dress are so obvious, that these may be looked upon as symbols naturally connected with it.

6. In point of subserviency to reformation it is superior to any other punishment, except that mode of imprisonment which we have already insisted on as being peculiarly adapted to this purpose. Next to the keeping of malefactors asunder, is the finding them employment while they are together. The work they are engaged in confines their attention in some measure: the business of the present moment is enough to occupy their thoughts; they are not stimulated by the impulse of ennui to look out for those topics of discourse which tends in the manner that has been already explained, to fructify the seeds of corruption in their minds: they are not obliged, in search of aliment for speculation, to send back their memory into the field of past adventures, or to set their invention in quest of future projects. This kind of discipline does not indeed, like the other, pluck up corruption by the roots: it tends however to check the growth of it, and render the propensity to it less powerful. Another circumstance, relative to the nature of this discipline, contributes to check the progress of corruption: to insure the performance of their tasks it is necessary that the workmen should be under the eye of overseers. The presence of these will naturally be a check to them, and restrain them from engaging in any criminal topics of discourse.

So much for the tendency which this punishment has to keep men from growing worse. It has besides this a positive tendency to make them better. And this tendency is more obvious and less liable to accident than the other. There is a tendency, as has been already observed, in man's nature to reconcile and accommodate itself to every condition in which it happens to be placed. Such is the force of habit. Few occupations are so irksome that habit will not in time make them sit tolerably easy. If labour then, even though forced, will in time lose much of its hardship, how much easier will it become when the duration and the mode are in some measure regulated by the will of the labourer himself; when the bitter ideas of infamy and compulsion are removed, and the idea of gain is brought in to sweeten the employment? in a word, when the labourer is left to work at liberty and by choice?

7. This mode of punishment is not altogether destitute of analogy, at least of the verbal kind, to that class of crimes which are the most frequent, and for which an efficacious punishment is most wanted: crimes, I mean, that result from a principle of rapacity or of sloth. The slothful man is constrained to work. The vagabond is confined to a particular spot. The more opposite the restraint thus imposed is to the natural inclination of the patient, the more effectually will he be deterred from indulging his vicious propensities by the prospect of the punishment that awaits him.

8. With regard to the popularity of this species of punishment in this country, the prejudices of the people are not quite so favourable to it as could be wished. Impatient spirits too easily kindled with the fire of independence have a word for it, which presents an idea singularly obnoxious to a people who pride themselves so much upon their freedom. This word is slavery. Slavery they say is a punishment too degrading for an Englishman, even in ruins. This prejudice may be confuted by observing, 1st, That public servitude is a different thing from slavery. 2dly, That if its were not, this would be no reason for dismissing it his species of punishment without examination. If then upon examination it is found not to be possessed, in a requisite degree, of the properties to he wished for in a mode of punishment that, and not the name it happens to be called by, is a reason for its rejection: if it does possess them, it is not any name that can be given to it that can change its nature. But these observations have been more fully insisted on in the Chapter on Popularity.

Having thus spoken of this species of punishment in general, let us stop a moment to consider the different kinds of labour which ought to be preferred.

The principal distinction is that of public and private labour.

In public works, the infamy of their publicity tends to render the individuals more depraved than the habit of working tends to reform them. At Berne there are two classes of forced labourers, the one employed in cleaning the streets, and in other public works; the others employed in the interior of the prison. The latter, when set at liberty, rarely fall again into the hands of justice; the former are no sooner set at liberty than they are guilty of new crimes. This difference is accounted for at Berne by the indifference to shame they contract in a service, the infamy of which is renewed day by day. It is probable that after the notoriety of this disgrace, nobody in the country would like to hold communication with or to employ them.

The rough and painful kinds of labour which are ordinarily selected for this kind of punishment do not generally seem suitable. It is difficult to measure the powers of individuals, or to distinguish real from simulated weakness. Subsidiary punishments must be proportioned to the difficulty of the labour and to the indisposition to perform it. The authority with which an inspector must be armed is liable to great abuses; to rely upon his pity, or even upon his justice, in an employment which hardens the heart, betrays an ignorance of human nature; so soon as it becomes necessary to inflict corporal punishment, the individual who is charged with its execution will become degraded in his own opinion, and he will revenge himself by the abuse of his authority.

Nam nil asperius humili qui surgit in altum. [4]

Labours which require great efforts ought to be performed by free labourers. The labour obtained by the force of fear is never equal to that which is obtained by the hope of reward. Constrained labour is always inferior to voluntary labour; not only because the slave is interested in concealing his powers, but also because he wants that energy of soul upon which muscular strength so much depends. It would be a curious calculation to estimate how much is lost from this cause in those states where the greater portion of labour is performed by slaves. It would tend greatly to prove that their gradual emancipation would be a noble and beneficial measure.

Labour in mines, except in particular circumstances, is little suitable for malefactors, partly for the reason above given, and partly from the danger of degrading this occupation. The ideas of crime and shame will soon be associated with it; miner and criminal would soon become synonymous; this would not be productive of inconvenience if the number of malefactors were sufficient for working the mines, but if the contrary is the case, there might be a lack of workmen, from the aversion inspired towards this kind of labour in those who used to exercise it voluntarily, or who are at liberty to choose respecting it.

[RP, Book II, Chapter IX] [RP, Book II, Chapter XI]