criminal justice cannot exist, detention? | to forfeit his life, or be banished from If you do, why let any one out upon everything he loves upon earth. This bail? For the question between us is is the improved situation, and the renot, how suspected persons are to be dundant happiness which requires the treated, and whether or not they are to penal circumvolutions of the Justice's be punished; but how suspected poor mill to cut off so unjust a balance of persons are to be treated, who want gratification, and bring him a little county support in prison. If to be nearer to what he was before imprisuspected is deserving of punishment, sonment and accusation. It would be then no man ought to be let out upon just as reasonable to say, that an idle bail, but every one should be kept man in a fever is better off than a ⚫ grinding from accusation to trial; and healthy man who is well and earns his so ought all prisoners to be treated for bread. He may be better off if you offences not bailable, and who do not look to the idleness alone, though that want the county allowance. And yet no is doubtful; but is he better off if all grinding philosopher contends, that all the aches, agonies, disturbances, delisuspected persons should be put in the riums, and the nearness to death, are mill-but only those who are too poor added to the lot? to find bail, or buy provisions. Mr. Headlam's panacea for all priIf there are, according to the doc-soners before trial, is the tread-mill: trines of the millers, to be two punish- we beg his pardon-for all poor priments, the first for being suspected of committing the offence, and the second for committing it, there should be two trials as well as two punishments. Is the man really suspected, or do his accusers only pretend to suspect him? Are the suspecting of better character than the suspected? Is it a light suspicion which may be atoned for by grinding a peck a day? Is it a bushel case? or is it one deeply criminal, which requires the flour to be ground fine enough for French rolls? But we must put an end to such absurdities. soners; but a man who is about to be tried for his life, often wants all his leisure time to reflect upon his defence. The exertions of every man within the walls of a prison are necessarily crippled and impaired. What can a prisoner answer who is taken hot and reeking from the tread-mill, and asked what he has to say in his defence? his answer naturally is-"I have been grinding corn instead of thinking of my defence, and have never been allowed the proper leisure to think of protecting my character and my life." This is a very strong feature of cruelty and tyranny in the mill. We ought to be sure that every man has had the fullest leisure to prepare for his de not been harassed by vexatious and compulsory employment. The public purchase, at a great price, legal accuracy, and legal talent, to accuse a It is very untruly stated, that a prisoner, before trial, not compelled to work, and kept upon a plain diet, merely sufficient to maintain him in health, is better off than he was pre-fence, that his mind and body have vious to his accusation; and it is asked, with a triumphant leer, whether the situation of any man ought to be improved, merely because he has become an object of suspicion to his fellow-man who has not, perhaps, one shilling creatures? This happy and fortunate man, however, is separated from his wife and family; his liberty is taken away; he is confined within four walls; he has the reflection that his family are existing upon a precarious parish support, that his little trade and property are wasting, that his character has become infamous, that he has incurred ruin by the malice of others, or by his own crimes, that in a few weeks he is to spend upon his defence. It is atrocious cruelty not to leave him full leisure to write his scarcely legible letters to his witnesses, and to use all the melancholy and feeble means which suspected poverty can employ for its defence against the long and heavy arm of power. A prisoner, upon the system recommended by Mr. Headlam, is committed, perhaps at the end of August, and brought to trial the March following; all the general good and safety of the principle is debauched by the excep tion, and applauds and advocates a system of prison discipline which renders injustice certain, in order to prevent it from being occasional. The meaning of all preliminary imprisonment is, that the accused person should be forthcoming at the time of trial. It was never intended as a punishment. Bail is a far better invention than imprisonment, in cases where the heavy punishment of the offence would not induce the accused person to run away from any bail. Now, let us see the enormous difference this new style of punishment makes between two men, whose only difference is, that one is poor and the other rich. A and B are accused of some bailable offence. A has no bail to offer, and no money to support himself in prison, and takes, therefore, his four or five months in the treadmill. B gives bail, appears at his trial, and both are sentenced to two months' imprisonment. In this case, the one suffers three times as much as the other for the same offence: but suppose A is acquitted and B found guilty,the innocent man has then laboured in the tread-mill five months because he was poor, and the guilty man labours two months because he was rich. We are aware that there must be, even without the tread-mill, a great and an inevitable difference between men (in pari delicto), some of whom can give bail, and some not; but that difference becomes infinitely more bitter and ob and, after all, the bill is either thrown out by the grand jury, or the prisoner is fully acquitted; and it has been found, we believe, by actual returns, that, of committed prisoners, about a half are actually acquitted, or their accusations dismissed by the grand jury. This may be very true, say the advocates of this system, but we know that many men who are acquitted are guilty. They escape through some mistaken lenity of the law, or some corruption of evidence; and as they have not had their deserved punishment after trial, we are not sorry they had it before. The English law says, better many guilty escape, than that one innocent man perish; but the humane notions of the mill are bottomed upon the principle, that all had better be punished lest any escape. They evince a total mistrust in the jurisprudence of the country, and say the results of trial are so uncertain, that it is better to punish all the prisoners before they come into Court. Mr. Headlam forgets that general rules are not beneficial in each individual instance, but beneficial upon the whole; that they are preserved because they do much more good than harm, though in some particular instances they do more harm than good; yet no respectable man violates them on that account, but holds them sacred for the great balance of advantage they confer upon mankind. It is one of the greatest crimes, for instance, to take away the life of a man; yet there are many men whose death would be a good to society, rather than an evil.jectionable, in proportion as detention Every good man respects the property of others; yet to take from a worthless miser, and to give it to a virtuous man If motion in the tread-mill was otherin distress, would be an advantage. wise as fascinating as millers describe Sensible men are never staggered when it to be, still the mere degradation of they see the exception. They know the the punishment is enough to revolt importance of the rule, and protect it every feeling of an untried person. It is most eagerly at the very moment when a punishment consecrated to convicted it is doing more harm than good. The felons—and it has every character that plain rule of justice is, that no man such punishment ought to have. An should be punished till he is found untried person feels at once, in getting guilty; but because Mr. Headlam oc- into the mill, that he is put to the labour casionally sees a bad man acquitted of the guilty; that a mode of employunder this rule, and sent out un-ment has been selected for him, which punished upon the world, he forgets renders him infamous before a single before trial assumes the character of severe and degrading punishment. fact or argument has been advanced to establish his guilt. If men are put into the tread-mill before trial, it is literally of no sort of consequence whether they are acquitted or not. Acquittal does not shelter them from punishment, for they have already been punished. It does not screen them from infamy, for they have already been treated as if they were infamous; and the association of the tread-mill and crimes is not to be got over. This machine flings all the power of Juries into the hands of the magistrates, and makes every simple commitment more terrible than a conviction; for, in a conviction, the magistrate considers whether the offence has been committed or not; and does not send the prisoner to jail unless he think him guilty; but in a simple commitment, a man is not sent to jail because the magistrate is convinced of his guilt, but because he thinks a fair question may be made to a Jury whether the accused person is guilty or not. Still, however, the convicted and the suspected both go to the same mill; and he who is there upon the doubt, grinds as much flour as the other whose guilt is established by a full examination of conflicting evidence. Where is the necessity for such a violation of common sense and common justice? Nobody asks for the idle prisoner before trial more than a very plain and moderate diet. Offer him, if you please, some labour which is less irksome, and less infamous than the tread-mill, bribe him by improved diet, and a share of the earnings; there will not be three men out of an hundred who would refuse such an invitation, and spurn at such an improvement of their condition. A little humane attention and persuasion, among men who ought, upon every principle of justice, to be considered as innocent, we should have thought much more consonant to English justice, and to the feelings of English magistrates, than the Rack and Wheel of Cubitt.* It is singular enough, that we use these observations in reviewing the pamphlet and system of a gentleman remarkable for the urbanity of his manners, and the mildss and humanity of his disposition. Prison discipline is an object of considerable importance; but the common rights of mankind, and the common principles of justice, and humanity, and liberty, are of greater consequence even than prison discipline. Right and wrong, innocence and guilt, must not be confounded, that a prison-fancying Justice may bring his friend into the prison and say, “Look what a spectacle of order, silence, and decorum we have established here! no idleness, all grinding!-we produce a penny roll every second,-our prison is supposed to be the best regulated prison in England,Cubitt is making us a new wheel of forty-felon power,-look how white the flour is, all done by untried prisoners-as innocent as lambs!" If prison discipline be to supersede every other consideration, why are penniless prisoners alone to be put into the mill before trial? If idleness in jails is so pernicious, why not put all prisoners in the tread-mill, the rich as well as those who are unable to support themselves? Why are the debtors left out? If fixed principles are to be given up, and prisons turned into a plaything for magistrates, nothing can be more unpicturesque than to see one half of the prisoners looking on, talking, gaping, and idling, while their poorer brethren are grinding for dinners and suppers. It is a very weak argument to talk of the prisoners earning their support, and the expense to a county of maintaining prisoners before trial,—as if any rational man could ever expect to gain a farthing by an expensive mill, where felons are the moving power, and justices the superintendents, or as if such a trade must not necessarily be carried on at a great loss. If it were just and proper that prisoners, before trial, should be condemned to the mill, it would be of no consequence whether the county gained or lost by the trade. But the injustice of the practice can never be defended by its economy; and the fact is that it increases expenditure, while it violates principle. We are aware, that by leaving out repairs, alterations, and first costs, and a number of little particulars, a very neat account, signed by a jailer, may be made up, which shall a prison-life. If this monstrous style make the mill a miraculous combina- of reasoning extended to hospitals as tion of mercantile speculation and well as prisons, there would be no harm moral improvement; but we are too in breaking the small bone of a man's old for all this. We accuse nobody of leg, because the large one was fractured, intentional misrepresentation. This is or in peppering with small shot a perquite out of the question with persons son who was wounded with a cannonso highly respectable; but men are con- ball. The principle is, because a man stantly misled by the spirit of system, is very wretched, there is no harm in and egregiously deceive themselves- making him a little more so. The even very good and sensible men. steady answer to all this is, that a man is imprisoned before trial, solely for the purpose of securing his appearance at his trial; and that no punishment nor privation, not clearly and candidly necessary for that purpose, should be inflicted upon him. I keep you in prison, because criminal justice would be defeated by your flight, if I did not; but criminal justice can go on very well without degrading you to hard and infamous labour, or denying you any reasonable gratification. For these reasons, the first of those acts is just, the rest are mere tyranny. Mr. Headlam compares the case of a prisoner before trial, claiming support, to that of a pauper claiming relief from his parish. But it seems to us that no two cases can be more dissimilar. The prisoner was no pauper before you took him up, and deprived him of his customers, tools, and market. It is by your act and deed that he is fallen into a state of pauperism; and nothing can be more preposterous, than first to make a man a pauper, and then to punish him for being so. It is true, that the apprehension and detention of the prisoner were necessary for the Mr. Nicoll, in his opinion, tells us, purposes of criminal justice; but the that he has no doubt Parliament would consequences arising from this neces- amend the bill, if the omission were sary act cannot yet be imputed to the stated to them. We, on the contrary, prisoner. He has brought it upon him- have no manner of doubt that Parliaself, it will be urged; but that remains ment would treat such a petition with, to be seen, and will not be known till the contempt it deserved. Mr. Peel is he is tried; and till it is known you much too enlightened and sensible to have no right to take it for granted, give any countenance to such a great and to punish him as if it were proved. and glaring error. In this case,-and There seems to be in the minds of we wish it were a more frequent one some gentlemen a notion, that when the wisdom comes from within, and once a person is in prison, it is of little the error from without the walls of consequence how he is treated .after- Parliament. wards. The tyranny which prevailed, of putting a person in a particular dress before trial, now abolished by act of Parliament, was justified by this train of reasoning:-The man has been rendered infamous by imprisonment. He cannot be rendered more so, dress him as you will. His character is not rendered worse by the tread-mill, than it is by being sent to the place where the tread-mill is at work. The substance of this way of thinking is, that when a fellow-creature is in the fryingpan, there is no harm in pushing him into the fire; that a little more misery a little more infamy-a few more links, are of no sort of consequence in A prisoner before trial who can support himself, ought to be allowed every fair and rational enjoyment which he can purchase, not incompatible with prison discipline. He should be allowed to buy ale or wine in moderation,―to use tobacco, or anything else he can pay for, within the above-mentioned limits. If he cannot support himself, and declines work, then he should be supported upon a very plain, but still a plentiful diet (something better, we think, than bread and water); and all prisoners before trial should be allowed to work. By a liberal share of earnings (or rather by rewards, for there would be no earnings), and also by an im proved diet, and in the hands of humane magistrates, there would soon appear to be no necessity for appealing to the tread-mill till trial was over. This tread-mill, after trial, is certainly a very excellent method of punishment, as far as we are yet acquainted with its effects. We think, AMERICA. (E. REVIEW, 1824.) 1. Travels through Part of the United States and Canada, in 1818 and 1819. By John M. Duncan, A.B. Glasgow. 1823. 2. Letters from North America, written during a Tour in the United States and Canada. By Adam Hodgson. London. 1824. 3. An Excursion through the United States and Canada, during the Years 1822-3. By an English Gentleman. London. 1824. at present, however, it is a little abused; and hereafter it is our intention to express our opinion upon the limits to which it ought to be confined. Upon this point, however, we do not much differ from Mr. Headlam; although in his remarks on the treatment of pri- THERE is a set of miserable persons in soners before trial, we think he has England, who are dreadfully afraid of made a very serious mistake, and has America and everything Americanattempted (without knowing what he whose great delight is to see that was doing, and meaning, we are per-country ridiculed and vilified-and suaded, nothing but what was honest who appear to imagine that all the and just), to pluck up one of the abuses which exist in this country acancient landmarks of human justice.†quire additional vigour and chance of duration from every book of travels which pours forth its venom and falsehood on the United States. We shall from time to time call the attention of the public to this subject, not from any party spirit, but because we love truth, and praise excellence wherever we find it; and because we think the example of America will in many instances tend *All magistrates should remember, that nothing is more easy to a person entrusted with power than to convince himself it is his duty to treat his fellow-creatures with severity and rigour, and then to persuade himself that he is doing it very reluctantly, and contrary to his real feeling. + We hope this article will conciliate our old friend Mr. Roscoe; who is very angry with us for some of our former lucubrations on prison discipline, - and, above all, because we are not grave enough for him. The difference is thus stated:- Six ducks proved to have committed a crime, it is are stolen. Mr. Roscoe would commit the expedient that society should make use of man to prison for six weeks, perhaps, that man for the diminution of crime: he reason with him, argue with him, give him belongs to them for that purpose. Our tracts, send clergymen to him, work him primary duty, in such a case, is so to treat gently at some useful trade, and try to turn the culprit that many other persons may be him from the habit of stealing poultry. rendered better, or prevented from being We would keep him hard at work twelve worse, by dread of the same treatment; hours every day at the tread-mill, feed him and, making this the principal object, to only so as not to impair his health, and combine with it as much as possible the then give him as much of Mr. Roscoe's sys- improvement of the individual. The ruilian tem as was compatible with our own; and who killed Mr. Mumford was hung within we think our method would diminish the forty-eight hours. Upon Mr. Roscoe's number of duck-stealers more effectually principles, this was wrong; for it certainly than that of the historian of Leo X. The was not the way to reclaim the man:-We primary duck-stealer would, we think, be say on the contrary, the object was to do as effectually deterred from repeating the anything with the man which would render offence by the terror of our imprisonment, murders less frequent, and that the conver as by the excellence of Mr. Roscoe's educa-sion of the man was a mere trifle compared tion-and, what is of infinitely greater consequence, innumerable duck-stealers would be prevented. Because punishment does not annihilate crime, it is folly to say it does not lessen it. It did not stop the murder of Mrs. Donatty; but how many Mrs. Donattys has it kept alive! When we recommend severity, we recommend, of course, that degree of severity which will not excite compassion for the sufferer, and lessen the horror of the crime. This is why we do not recommend torture and amputation of limbs. When a man has been to this. His death probably prevented the necessity of reclaiming a dozen murderers, That death will not, indeed, prevent all murders in that county; but many who have seen it, and many who have heard of it, will swallow their revenge from the dread of being hanged. Mr. Roscoe is very severe upon our style; but poor dear Mr. Roscoe should remember that men have different tastes and different methods of going to work. We feel these matters as deeply as he does. But why so cross upon this or any other subject? |