Blackwood's Edinburgh Magazine, Volume 58, Number 358, August 1845

With respect to that greater severity of the punishment, on which our author eloquently enlarges, the only severity which a legislature ought to seek is that which is available in the shape of threat; and no threat can be more effective than that of taking from a man his life, since he can always, in his own imagination, commute any other punishment into that. If it be true, on the one hand, that death is a mere privation, and not to be compared, in real severity, to very many of the positive afflictions of life; and if, on the other, it is still the greatest threat which society can hold out—these two facts together would go far to prove that it is the very best punishment which could be devised.

Dismissing this exception of the punishment of death for the crime of murder, imprisonment at home or abroad, accompanied with hard labour, or periods of solitary confinement, is the sole threat of any moment which the law holds out against offenders; and it becomes, therefore, of infinite importance to establish an effective prison discipline. We look upon this simplification of our penal operations as an advantage; and we are by no means disposed to favour those inventive gentlemen who would devise new punishments, or revive old ones, for the purpose, it would seem, of having a variety of inflictions corresponding to the variety of offences. A well-regulated prison, where the severity of the taskwork, the nature of the diet, the duration and the strictness of the confinement, all admit of apportionment to the offence, seems to include all that is desirable in this matter of punishment. Here, if any where, can plans of reformation be combined with penal inflictions. Such plans ought, by all means, to be encouraged; but they are not—whatever Captain Maconochie, and other zealous reformers, say to the contrary—the first and peculiar object for which a prison is designed.

Captain Maconochie was for some time superintendent of Norfolk Island. A rough experience. But prison discipline must be much the same in its elements, in whatever part of the world it is carried on. We are not about to enter into the variety of questions connected with transportation, or the management of penal colonies. Wherever imprisonment or compulsory labour are to be undergone, the same class of difficulties and dilemmas must arise; and we shall deal only with Captain Maconochie's remarks, as they apply generally to all convicts, whether transported or not.

It is quite curious to observe the unconscious pranks that men of sound understandings, but not philosophically disciplined, may be led into, when, from some favourite point of view, they suddenly rush into generalities, and proclaim as reasoning what is the dictate of a momentary sentiment. Captain Maconochie, desirous of enlisting our sympathies in favour of his convicts, assimilates their condition to that of the black slaves, whom the philanthropic efforts of Wilberforce, and others, succeeded in emancipating. The parallel is—to say the best—very surprising and unexpected. Convicts in the colonies stand in the same predicament, with regard to society, as their fellow-culprits at home; and the gallant Captain would hardly preach a crusade for the liberation of all the prisoners in England—for all who are undergoing the discipline of our houses of correction. To be compelled to labour for another man's advantage, and at another man's will, because one is "guilty of a darker skin," and to be compelled to the like taskwork because one has committed burglary, are two very different things. Full of this happy comparison, however, Captain Maconochie proceeds—"They (the blacks) were thus, in the main, merry, virtuous, and contented beings; they did not advance—this their condition as slaves forbade—but neither did they recede; and whatever the influence of their condition on their own character, it ended nearly with themselves; they were subjects, not agents, and no one was made materially worse through their means. In every one of these respects, convicts are differently, and far more unfavourably, circumstanced. True, they have sinned, which is often alleged as a reason for dealing with them more harshly; but who has not sinned? Who will venture to say, or would be right if he did say, that, similarly born, educated, and tempted, as most of them have been, he would have stood where they have fallen? They are our brothers in a much nearer sense than were the negroes." Now, if language such as this means any thing, the convict is a most maltreated person, and should not have been punished at all. It is really the duty of sober sensible men to put their veto on such oratory as this; there is too much of the same kind abroad. We must all of us be ready to acknowledge, that if we had been "born, educated, and tempted," as many of these felons, we too might have been felons. Does it follow that we ought not to have received the punishment of felons? Is this sort of argumentum ad hominem, which makes the crime in imagination our own, to bribe us into an utterly ruinous indulgence towards it? Crime is not punished on earth—as divines teach us it will be punished in heaven—on a principle of retributive justice, and according to our moral deserts. To prove that this is not the principle of judicial punishment, we have only to call to mind that, whereas, in a moral point of view, the force of temptation diminishes the guilt, men, in framing their laws, invariably increase the punishment in proportion to the temptation. The facility to commit a crime, is one great element in the temptation to commit it; and this facility has been always considered (as in the case of forgery) to call for a counterbalance in the severity of the penalty.

In matters of penal legislation, there are two currents of thought, which must be always kept distinct. The one relates to the natural and little cultivated feelings of mankind, which demand retaliation for injuries committed—a vindictive or retributive justice. Here is found the rude motive power by and on which legislation has to work; sometimes shaping these feelings to its purposes, sometimes shaping its purposes to them. The other current of ideas is purely legislative, purely prospective, having for its sole end the well-being of society, and looking on punishment; not as retributive, or vindictive, or as morally due, but as a sad necessity for the preservation of order.

In reference to the latter and only legislative mode of thinking, how extremely illogical does it appear this attempt to ward off the penal blow from a guilty party, or to excite our commiseration for him on the ground that we all share the same passions and frailties of that guilty party! Why, if such passions and frailties were not general, there would be little need of punishment. It is because they are general, that the legislature is compelled to be so watchful and energetic. If to take the object of desire from our neighbour were a rare propensity, an extraordinary phenomenon, we might let the prison sink into happy ruin, and a most cheerful desolation.

We have seen how the German, in his metaphysical manner, disposed of the right of society to put one of its members to death; the Captain, though no metaphysician, proves, in a manner quite as bold and singular, that the state has really no right to inflict any punishment that is not of a reformatory character. It is true he admits of punishment—could a man of his experience do otherwise? But he admits it only as a part of his curative process. It is to induce "submission and penitence." He can so far blind himself by his love of theory, or rather his tenacity to one point of view, that he seems to suppose, that reform of the criminal being the direct object, he would commence his treatment by penal inflictions. "As already observed, a fever must be reduced before its ravages are sought to be repaired; a wound must be probed and cleansed before it can be healed up." And this surgical instance seems to have satisfied his mind, that the exacerbations consequent on punishment are an indispensable preparation for a moral restoration. As to the old-fashioned notion that punishment has for its legitimate and primary object to deter others from offending, he denounces this, if pursued as an independent aim, as a flagrant injustice; he regards such criminals who are punished for this end only, as sacrifices cruelly offered up for the benefit of the public.

"In the infancy of society," reasons Captain Maconochie, "and under every form of pure despotism, the individual is nothing, and the commonwealth, or its chief, every thing. But just as intelligence and true knowledge of state policy extend, does this state of things become reversed; and in England already, the maxim is become almost universal, that private rights are never to be invaded without compensation. In two departments only is there still a systematic deviation from this rule in practice. Impressment, in which the compensation made, though it has increased much of late years, must still be considered inadequate—for otherwise the act itself would be unnecessary; and the punishment of offenders with a view to example only, in which they have no concern, and to which their individual interests are yet unhesitatingly sacrificed. In both cases the same plea of state necessity is offered in justification; but it will not do. As society advances, and individuals become more sensible of their own worth, their claims to regard above such abstractions become more and more evident."—(General Views, &c., p. 11.)

We would modestly suggest that before this curious analogy can be made complete, government ought to press for hanging as well as the sea service. If the sheriff and his bailiffs sallied forth, and seized upon some hapless wight, thrust the king's money into his hand, and thus enlisted him into the hanging corps for the benefit of the community, the resemblance would be perfect. But no one, not even the high-sheriff himself, has the least desire to obtain a single recruit for this forlorn service; the members of which force themselves in a most unwelcome manner upon the state. Still less, if possible, does the government desire to be at the expense of erecting large buildings, and maintaining numerous garrisons of all species of felons. "Banishment of offenders, with a view to example only, in which they have no concern, and to which their individual interests are yet unhesitatingly sacrificed!" Indeed, but they have! He who is punished for theft has still his life to be preserved, and may one day have his property also to be protected by the same law under which he is suffering. One can imagine the strange effect it would produce upon the ignoble army of martyrs which throng our jails, to be told that they were sacrifices to society—victims whom the community was offering up, most unjustifiably, on the altar of its own interests! At first, the idea would be a little dim and mysterious; but, after a short time, the flattering nature of the doctrine would doubtless be sufficient to insure its reception. They would, thereupon, call in the jailer, and the chief spokesman of the party would thus address him:—"We perceive, O jailer! that society is consulting its own interests in our punishment, and not, as it is bound to do, our especial benefit and advantage. As we have learned that stripes and bondage are to be inflicted on no man but for his own good, and as we are all agreed, after considerable experience, that we derive no benefit whatever from them, and you, O jailer! must be satisfied that, as medical treatment, they are worse than inefficacious, we demand, in the name of justice and human reason, our immediate dismissal."

To those who value no information but such as assumes the shape of detail of facts, or can be reduced to figures, and exhibited in the shape of statistical tables, we shall perhaps appear to be wasting time in examining the mere errors of reasoning on this important subject of penal discipline. We think otherwise. We apprehend there is nothing more necessary than to keep active and zealous men steady to first principles in subjects of great general interest. We are not guilty of underrating the value of statistical tables; albeit we have seen figures arrayed against figures, as if there were two arithmetics, as if there were two churches in the doctrines of addition and multiplication; but the truth must be kept in view, that to read statistical tables aright, something more is required than a knowledge of the rules of arithmetic. A few sound principles, based on a knowledge of human nature, and the elementary bonds of human society, may often preserve us from false deductions, which seem to be the sure product of the array of figures that are presented to us.

We intimated that Captain Maconochie's pamphlet contained what appeared to us a valuable contribution towards a good prison discipline. That contribution is simply—the commutation of time of imprisonment for quantity of labour to be performed. The amount of work done by the prisoner could be estimated by certain marks awarded or reckoned to him, and the duration of imprisonment measured by the number of those marks to be earned, instead of a certain fixed number of months or years. This is a very simple idea, and is all the better for its simplicity. The punishment would be probably rendered more effective as a threat, and the moral effect of the punishment, when inflicted, would be much improved. A compulsion to labour (which becomes, in fact, a compulsion of moral motive, as well as of sheer external control) may lead to a permanent habit of industry. There would be all the difference between the listless and disgustful labour of enforced time-work, and a labour in part prompted by the hope of expediting the term of release. An idle vagabond might thus be disciplined and trained into an industrious workman.

We have no doubt that this principle has already been partially applied in the management of our prisons, and perhaps in more instances than we at all suspect; but that it has not yet been extensively applied, or received the trial which it appears to merit, is certain—because such an experiment must have been preceded by a very notorious and signal alteration in our laws.

We should be doing an egregious injustice to Captain Maconochie if we were to judge of him only by the instances we have given of his powers of general reasoning. The perusal of his pamphlets has left in our mind a strong impression of the manly character and practical ability of their writer. If his abstract reasonings are sometimes perverse, we are convinced that his practical good sense is such, that in the management of any enterprise, he would in reality so order his proceedings, that, whatever his pen might do, his conduct would contradict no sound principle of expediency. If it were the object to reclaim a set of felons or vagabonds, and fit them—say for the naval and military service—we are persuaded that the task could not be confided to better hands than those of the gallant Captain. During his residence at Norfolk island, he seems to have obtained the esteem of even the worst of the sad crew he had to discipline; and this, it is evident, without sacrificing a jot of the duties of his station. He is plainly not the man to make any boast of such a matter, or to feel too highly flattered by it. "Instances of individual attachment to myself," he says, at the conclusion of his pamphlet On the Management of Transported Convicts, "I could multiply without number; but these, for obvious reasons, I forbear to quote; and in truth they as often pained me as pleased me, by being too deferential. It is a great and very common mistake, in managing prisoners, to be too much gratified by mere obedience and servility: duplicity is much encouraged by this; and, of two opposite errors, it is better rather to overlook a little occasional insubordination. I cannot refuse, however, to cite two traits, whose character cannot be mistaken. I had a large garden within a few hundred yards of the ticket-of-leave village at Cascade, where from 300 to 400 men lived, four to six in a hut, never locked up, nor under other guard through the night than that of a police sentry, one of their own number. The garden was by the road-side, very imperfectly fenced with open paling, and fully stocked with choice fruit and vegetables, bananas, pine-apples, grapes, melons, and others, which to men on a salt ration must have offered a great temptation; these were constantly under view, yet I scarcely ever lost any. And by a letter, received a few weeks ago, I learn that five men, having picked up an old black silk handkerchief that had belonged to me, have had their prayer books bound with it." 1

The Captain's theoretical error is, that he too much confounds the necessity of penal laws with the duty of public education. The duty of the state to educate its subjects is undeniable; but, when criminals are brought before it, this is not the duty which is then most prominent. This is a duty which ought to have been performed before—it is a duty which ought not to be forgotten then; but there is another function which comes into operation, which is typified by the judge, not by the schoolmaster.

We observe that Captain Maconochie confirms, from his own experience, the opinion already expressed by many others upon the policy of solitary confinement. For a short period the effect is good; but, if prolonged, it leads either to stupid indifference or moroseness of temper, if it does not conduct even to insanity. It is, manifestly, an expedient to be cautiously used. We should, before any appeal to experience, and judging only from the nature of the human mind, have confidently predicted this result. And, indeed, has not the effect of solitary confinement been long ago understood and powerfully described? In that delightful tale of the Arabian Nights, where the poor fisherman draws up a jar from the bottom of the sea, and, on opening it, gives escape to a confined spirit or genie, this monster of ingratitude immediately draws a huge sabre, with the intention of decapitating his deliverer. Some parley ensues; and the genie explains that he is only about to fulfil a vow that he had made while incarcerated in the jar—that, during the first thousand years of his imprisonment—and, to an immortal genie, a thousand years may reckon as about two calendar months with us—he promised to his deliverer all imaginable blessings; but, during the second thousand years, he vowed that he would kill the man who should release him! Could there possibly be a better illustration of the effect of solitary confinement?

But on the peculiar modifications of prison discipline, it is not our purpose here to enlarge. This must be reserved to some future occasion. We must content ourselves with observing, that we have little confidence in novelties, and little wish to prompt the invention of our legislators in this direction. We are as little disposed to advocate the silent as the solitary system. Such a demeanour as any reflective man would naturally expect to find in a place of public correction, is all that we should require to be preserved. All boisterous mirth, all obstreperous laughter, all loud talking, would, by every efficient governor of such an institution, be systematically repressed. The labours of such an establishment should be conducted with stern military order. Every inmate should feel himself under an irresistible domination, and that obedience and submission are the only parts he has to enact. How easily the strongest minds may be led astray when scope is given to invention in this matter of penal discipline, may be seen in the example of Jeremy Bentham himself. This celebrated man, whose cogitative faculty was assuredly of the most vigorous description, but who had a mode of developing it the most insufferably and needlessly prolix, would have filled our prisons with inextinguishable laughter by the introduction of certain "tragic masks," indicative of various crimes or passions, in which the several offenders were to be occasionally paraded—a quaint device, which would have given a carnival to our jails.

Our main purpose, in these somewhat fragmentary observations, was to protest against the reasoning which would divest punishment of its proper and distinctive character, which, spreading about weak and effeminate scruples, would paralyse the arm which bears the sword of justice. One writer would impugn the right of society to put its arch-criminals to death; another controverts its right to inflict any penalty whatever, which has not for its direct object the reformation of the criminal. So, then, the offender who will not live with his fellow-men on the only terms on which human fellowship can be maintained, is to stand out and bandy logic with the community—with mankind—and insist upon his individual imprescriptible rights. These à priori gentry would find it very difficult to draw any advantage from their imprescriptible rights, except in a state of tolerable civil government. Civil government is, at all events, the condition on which depends the enjoyment of all individual rights; without which they are but shadows and abstractions, if even intelligible abstractions. Let us have no more, therefore, of an opposition between the rights of individuals and the stern, imperative, expediencies of society. There can be no such opposition. Is it not as if some particular wave of the sea should assert a law of motion of its own, and think it injustice to submit to the great tidal movements of the ocean?

REFERENCES

Zschokke's Aehrenlese.—Part I. Pandora, Civilization, Demoralization, and Death-punishment.

On the Management of Transported Criminals. By Captain Maconochie, R.N., K.H., late Superintendent at Norfolk Island.

General Views, &c. &c. By the Same.

PÚSHKIN, THE RUSSIAN POET

No. III

Specimens of his LyricsTranslated from the Original Russian, by Thomas B. Shaw, B.A. of Cambridge, Adjunct Professor of English Literature in the Imperial Alexander Lyceum, Translator of "the Heretic," &c. &c

We trust our readers will not blame us for the slightness of construction and unimportant subjects of many of the minor pieces which we have admitted into our present selection from Púshkin's lyrical productions. It was our object to give the English reader, as far as possible, a fair and just notion of the poet's peculiar turn of thought and style of expression; and to do this completely, it appeared to us indispensable to avoid confining our choice—however natural it might have seemed, and however great the temptation to do so—to the more ambitious and elaborate efforts of his genius. The true principles of criticism have long ago established the doctrine, that the composition of a beautiful song, or even of a perfect epigram, deserves to be considered as difficult a task, and as rare an achievement, as the production of an ode or of an elegy; and though it may be objected that, for the purposes of translation, the song is generally much more ungrateful than the more imposing production, yet we could not consider ourselves as fulfilling our promise, (of holding up to our countrymen a faithful mirror of Púshkin's poetry,) had we omitted to attempt versions of the slighter and more delicate productsof his poesy. It is true that, in passing through the deteriorating process of translation into another language, the lighter works suffer most, and are more likely to lose that exquisite delicacy of expression, and that transparent colouring of thought, which is the more peculiar merit of the song or the fugitive poem—these tender blossoms run much more risk of losing, in short, their finer and more evanescent aroma, than the more gorgeous flowers of the tropical regions of poetical imagining; but at the same time it must be remarked, that the danger in such experiments is not on the side of the author, but wholly on that of the translator. That we have determined—rashly, perhaps—to encounter this danger, must be our apology for having introduced into our collection many of the shorter and slighter pieces which will be found in these pages, and, among them, the specimen which we are now about to present.

Alas for Her! Why Is She Shining?"Alas for her! why is she shiningIn soft and momentary bloom?Yet all the while in secret pining'Mid youth's gay pride and first perfume …She fades! To her it is not givenLong o'er life's paths in joy to roam,Or long to make an earthly heavenIn the calm precincts of her home;Our daily converse to enlightenWith playful sense, with charming wile,The sufferer's woe-worn brow to brightenWith the reflection of her smile.Now that black thoughts around me darken,I veil my grief with steady will,To her sweet voice I haste to hearken,—To hearken: and to gaze my fill.I gaze, I hearken yet, and neverShall voice or form from me depart;Nought but our parting hour can everWake fear or anguish in my heart.

In the following spirited little piece Púshkin has commemorated an incident which occurred in the reign of Peter the Great, and which is probably sufficiently familiar to the readers of Russian history, to render unnecessary a more than passing allusion to the circumstance. Among the thousand traits of grandeur recorded of the Hero-Tsar, there are few more affecting and sublime than that commemorated in the anecdote of his indulgence to Ménstchikoff, who had betrayed his master's confidence, and committed various acts of peculation and oppression. Peter pardoned his unfaithful but repentant minister, and celebrated this act of generous clemency by a magnificent banquet, at which he exhibited to his admiral every testimony of renewed confidence and affection. This banquet is the subject of the following lines, in which all the allusions are probably familiar to our readers, not excepting the mention made of the imposing ceremony spoken of in the third stanza; that is to say, the grand review of the infant Russian fleet, at which the Emperor assisted in person, and in the rank of Vice-Admiral. The whole squadron—recently created by the genius and wisdom of the Prince, and freshly covered with naval glory, till then unknown in Russia—was anchored in the Neva, and along its line slowly passed, under a general salute of cannon, and accompanied by the acclamations of the crews of the men-of-war, the old pleasure-boat, the "baubling shallop," which had first suggested to Peter's mind the idea and the possibility of giving Russia a navy. This small vessel, still most religiously preserved in the fortress, and affectionately called by the Russians the "Grandfather" of their navy, had been constructed for the amusement of the Tsar Alexéi, by Brandt, a Dutch shipbuilder, who had visited Moscow during the reign of that prince—the father of the great regenerator of Russia. The vessel, a small sloop rigged in the Dutch manner, had remained neglected on the lake of Peresláv-Zalévskii (in the province of Vladímir) till it was remarked by Peter, who, from seeing it, not only conceived the idea of creating a navy, but made it the means of acquiring for himself the first rudiments of practical seamanship. As a ship in the Russian language is a masculine substantive, the familiar title given to this immortal little vessel is "grandfather," or "grandsire," a word of which we have thought it necessary to transpose the gender, in obedience to that poetical and striking idiom in our tongue, by which a ship always rigorously appertains to the gentler and lovelier sex. In our version, therefore, the "grandsire" becomes—we trust without any loss of dignity or interest—the "grandame" of the Russian navy:—