The Rationale of Punishment

Book II

Of Corporal Punishments

Chapter VII


Let there be three kinds of imprisonment, differing one from another in the degree of their severity.

The first for insolvents: in case of rashness or extravagance, in lieu of satisfaction. The second, for malefactors whose imprisonment is to be temporary. These may be stiled second-rate malefactors. The third, for malefactors whose imprisonment is perpetual. These may be stiled first-rate malefactors.

1st. Let all insolvents be upon the footing of bankrupts; compellable to discover, under pain of death, or other heavy penalty; on discovery not liable to imprisonment of course, but liable in case of rashness or extravagance; or else let rashness or extravagance be presumed in the first instance; and let it lie upon the insolvent to exculpate himself. To the same prison let such persons be committed as are arrested upon mesne process. On persons of this class the imprisonment comes in before judgment to enforce; after judgment to stand in lieu of satisfaction. Here let there be no mark of infamy. Nor let there be here any rigour, either real or apparent.

The second kind of imprisonment is designed for correction as well as for example. The real, therefore, and the apparent punishment ought to be upon a par. Here, let labour be added to imprisonment and for the last week, or fortnight, or month, solitude, darkness, and spare diet. Here let a stigma be inflicted; but let that stigma be a temporary one. It will answer two purposes: first, that of example, as increasing the apparent punishment: second, that of security, by preventing escape.

The third kind of imprisonment is destined for example only. The end of correction is precluded; since the delinquent is never to mix with society again. Here too, for the same purposes as in the former case, let a stigma be inflicted; and let that stigma be perpetual. Here let the apparent condition of the delinquent be as miserable, and the real as comfortable, as may be. Let the gentleman occupy himself as he pleases. Let the yeoman, who has an art, exercise his art, and let him be a sharer in the profits. Let the labour of the yeoman who knows no art be more moderate than in the temporary prison.

The diet in many prisons is in part provided for by private benefactions. Such benefactions are of use only upon supposition of that gross negligence on the part of Government, of which they are a pregnant testimony. The demand a man in the situation in question has for food, is not at all varied by the happening or not happening of a casual act of humanity by a chance individual. Whatever be the proper allowance, he ought to have as much, although no private benefaction were given for that purpose; he ought not to have more, were the amount of such benefactions ever so considerable. If ever the legislature should fulfil this obvious and necessary duty, all such private benefactions should be taken into the hands of the public. Such resumption, far from being a violation of the wills of the benefactors, would be a more complete execution of them than any they could have hoped for.

For the same reason all casual benefactions of particular persons, to particular delinquents, should be prevented. The way to do this, is not to prevent the money's being given; but to prevent its being spent, at least, in food and liquors; the introduction of money could not be prevented Without establishing a search too troublesome and humiliating to be executed with the strictness requisite to answer the purpose. But articles so bulky as those of food and liquors might easily be excluded. Such an institute would tend in no inconsiderable degree to promote restitution. At present, in all offences of rapacity, that is in nineteen out of twenty, of the crimes that are committed. the greater a man's guilt has been, the more mischief he has done, the better he fares while he is in prison. It is seldom that the whole produce of the crime is found upon the delinquent at the time of his being apprehended; and though it be found on him, if it consists in money, it is seldom that it can be identified in such manner as to warrant the restitution of it against the consent of the delinquent. Commonly, if it is not spent, it is in the hands of some friend of the delinquent; an associate in iniquity a wife or mistress. Thus secured, it is disposed of at his direction, and either lavished in debauchery, or in feeing lawyers to obstruct the course of justice.

When, therefore, the plunder is of no use to him, it will require a much less effort, on his part, to restore it to the right owner. The workings of conscience will be powerfully seconded by such an institution.

Whatever, therefore, is found upon the person, or in the possession of any one who, by virtue of a charge upon oath, is apprehended for a felony, should be impounded in the hands of the officer. As much of it as consists in money, or other articles that include a considerable value in a small compass, should be sealed up with the seal of the magistrate; who should have it in his option to keep it in his own custody, or commit it to that of the ministerial officer, giving, in either case, a receipt to the suspected felon.

An objection to imprisonment, when all are upon an equal footing with respect to entertainment, is that the punishment is apt to be disproportionate. The rich are punished more than the poor; or, in other words, those who have been accustomed to good living, more than those who have been accustomed to hard living. On the other hand, to allow those who are committed for crimes of rapacity to give in to any expence while any part of the booty they may have made remains unrestored. is to allow them to enjoy the profit of their crimes; to give the criminal an indulgence at the expense of those whom he has injured.

Here, then, arises a difference in the treatment proper to be given in this respect to different crimes. Persons committed for crimes of rapacity should, in the case where the profit of the crime has been reaped, be debarred, until complete restitution shall have been made, of the liberty of procuring themselves those indulgences that are to be had for money. Persons committed for any other crimes may be allowed it.

With respect to restitution, a further caution is to be observed. It will happen very frequently that a person apprehended for one offence, has been guilty of many others. For this reason it is not the restitution of the booty gained by the first; Hence for which the malefactor is apprehended, that ought to be deemed sufficient to entitle him to the liberty of purchasing indulgences. A time ought to be limited, (suppose a month or six weeks) and notice given for any persons who, within a certain time, (suppose a year) have been sufferers by him, to come in and oppose the allowance of such liberty. Very light proof in such case ought to be held sufficient.

Let us return for a moment to the different kinds of prisons: the different purposes for which they are destined ought to be very decidedly marked in their in their denomination.

The walls of the first sort ought to be white---of the second, grey---of the third, black.

On the outside of the two last kinds of prisons may be represented various figures, emblematical of the supposed dispositions of the persons confined in them. A monkey, a fox, and a tiger, representing mischief, cunning, and rapacity, the sources of all crimes, would certainly form more appropriate decorations for a prison than the two statues of melancholy and raving madness, formerly standing before Bedlam. In the interior let two skeletons be placed, one on each side of an iron door: the occasional aspect of such objects is calculated to suggest to the imagination the most salutary terrors. A prison would thus represent the abode of death, and no youth that had once visited a place so decorated could fail of receiving a most salutary and indelible impression. I am fully aware, that to the man of wit, these emblematical figures may serve as matter for ridicule: in poetry they are admirable, in reality despicable. Fortunately, however, they are more assailable by ridicule than by reason.

Distinguishing the several species of prisons by characteristic denominations, is far from being a useless idea. Justice and humanity to insolvent debtors, and to persons detained upon suspicion, require that they ought to be screened even from the apprehension of being confounded with delinquents, a risk to which they are naturally exposed; where all places of confinement bear the same appellation. If no such sentiment were found to be already in existence, the legislator ought to make it his business to create it: but the truth is, that it does exist, and it is the most valuable classes of the community that are most severely wounded by this want of discrimination.

A difference in the situation and name affords another means of aggravating one of the most important parts of the punishment---the apparent punishment.

The first sort of prison may be called the House for Safe Custody---the second, the Penitentiary House---the third, the Black Prison.

The first of these names does not convey any idea of misconduct; the second does, but at the same time presents the idea of reformation; the third is calculated to inspire terror and aversion.

With a view to reformation in the case of offenses punished by temporary imprisonment, part of the punishment may consist in learning by heart a certain part of the criminal code, including that part which relates to the offense for which the party is punished. It might be digested into the form of a Catechism.

In second-rate felonies and misdemeanors, where, after being punished, the offender is returned into society, it is of importance to lighten as much as possible the load of infamy he has been made to bear. The business is to render infamous not the offender, but the offense. The punishment undergone, upon the presumption of his being reclaimed, he ought not, if he is returned into society, to have his reputation irretrievably destroyed. The business is, then, for the sake of general prevention, to render the offence infamous, and, at the same time, for the sake of reformation, to spare the shame of the offender as much as possible. These two purposes appear at first, to be repugnant: how can they be reconciled? The difficulty, perhaps, is not so great as it at first appears. Let the offender, while produced for the purpose of punishment, be made to wear a mask, with such other contrivances upon occasion as may serve to conceal any peculiarities of person. This contrivance will have a farther good effect in point of exemplarity. Without adding anything to the force of the real punishment, on the contrary, serving even to diminish it, it promises to add considerably to the force of the apparent. The masks may be made more or less tragical, in proportion to the enormity of the crimes of those who wear them. The air of mystery which, such a contrivance will throw over the scene, will contribute in a great degree to fix the attention by the curiosity it will excite, and the terror it will inspire.

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