ON PUNISHMENT 
 
 A MODERN VIEW OF THE RATIONAL 
 TREATMENT OF CRIME 
 
 BY 
 
 CARL HEATH 
 
 Secretary of the National Peace Council 
 Formerly Hon. Secretary of the Society for 
 the Abolition of Capital Punishment 
 
 LONDON 
 
 GEORGE BELL & SONS, LTD. 
 1913 
 

 CONTENTS 
 
 PAGE 
 
 1. ON PUNISHMENT .-9 
 
 2. ON RECLAMATION AS A PENOLOGICAL 15 
 
 METHOD.. 
 
 3. THE TREATMENT OF HOMICIDAL CRIME 22 
 
 4. THE LAW ON ITS TRIAL : AN HISTORICAL 
 
 RETROSPECT 34 
 
 5. CRIME AND SOCIAL RESPONSIBILITY . . 45 
 
 6. ON FLOGGING 52 
 
 274108 
 
AUTHOR'S NOTE. 
 
 THE following pages do not pretend to con- 
 stitute in any sense an exhaustive treatise on 
 crime. They are the outcome of a good many 
 years pursuit and consideration of the criminal 
 problem. The hundred and fifty thousand fellow- 
 creatures who, in England and Wales, are annually 
 convicted of crime, constitute a blot on the social 
 system, an open social sore. No doubt amongst 
 these many are vicious and depraved, many are 
 also weak-minded, most are the product of evil 
 conditions. I venture to think that there are 
 few problems that should appeal to thoughtful 
 and humane men and women as this should do. 
 And it is the duty of all those who give thought 
 and study to this question to give expression to 
 their thoughts so that, perchance, a better way 
 may be found, and a social system presently 
 evolved which shall not be fitted to the survival 
 of the criminal. 
 
 Some of the pages which follow have previ- 
 ously appeared and been published in articles 
 appearing in the International Journal of Ethics, 
 the Westminster Review and the Humane Review, 
 to the Editors of which I am indebted for their 
 permission to reproduce the same. 
 
 C. H. 
 
I. ON PUNISHMENT. 
 
 " La legislation penale pour r a ttre 
 appeUe humaine quandelktendra, non 
 d punir par la souffrance ou Vinfamie, 
 mais d solliciter un coupablc aux actes 
 qui en feraient un nouvel homme" 
 
 ALFRED DUMESNIL. 
 
 AFTER many years of effort on the part of re- 
 formers in respect to the Criminal Law, and of 
 the partial success of humanitarians in moderat- 
 ing the ferocity of its execution and in affecting 
 a change in some of the accepted theories as to 
 its basis and ultimate purpose, a recent set-back, 
 born of some wave of popular sentiment alism, 
 shows the recurrent social need of urging upon 
 the consideration of thoughtful people the 
 question, " What do you regard as the object in 
 view in the punishment of wrongdoers and the 
 just and effective method of attaining this object, 
 consistent with modern principles of social 
 ethics, heredity, and the known facts of physio- 
 logical and psychological science ? " 
 
 The answer which nine out of ten men will give 
 to the first part of this query, based on the 
 commonly accepted doctrine in regard to punish- 
 ment, is, that it is inflicted with a view to the 
 protection of society and to deter others from 
 like offences. This is the theoretical explana- 
 tion. Actually the evidence which every terrible 
 
io ON PUNISHMENT. 
 
 crime, or series of crimes, brings forth, goes to 
 show that the root idea in the minds of a very 
 large number of persons is still one of revenge. 
 " Such people/' it is said, " deserve no mercy, 
 such criminals should be hanged or flogged or 
 sent to penal servitude/'* This cry for the cat or 
 the gallows is a cry for vengeance and has no real 
 relation to the theory of deterrent punishment, as 
 to which, the evidence against violent penalties 
 for crime, is overwhelming. 
 
 Vengeance is one of the oldest of human 
 passions. All penal systems begin with it. To 
 deter and to reform are growths of a later stage. 
 " Even now/' says John Galsworthy, " the State 
 still feels that because a man has hurt it, it must 
 hurt him." Blood for blood, suffering for suffer- 
 ing, feud for feud, is the first and most ancient 
 of tribal instincts. At bottom, it is, no doubt a 
 primitive instinct of self-preservation. That 
 which conduces to the preservation of the tribe 
 is good. That which attacks its preservation is 
 bad, and when violent, is, in the nature of things, 
 to be paid back with violence. 
 
 * " It was complained that the punishment was degrading 
 and painful. So it ought to be. Men who committed these 
 offences had lost all manly instincts. They were not men ; 
 they were animals, and must be treated as animals." 
 COLONEL LOCKWOOD, M.P., House of Commons, November 
 ist, 1912. 
 
 " He was only glad these people had got a skin to be 
 tanned." MR. WILL CROOKS, M.P., Ibid. 
 
 " He was ready in his own person to run the risk of being 
 flogged sooner than that there was the slightest chance of any 
 of these miscreants escaping a punishment which it was 
 agreed they so richly deserved." LORD WILLOUGHBY DE 
 BROKE, House of Lords, November 28th, 1912. 
 
 " In all cases of brutal assault with violence, the punishment 
 should be at least fifty lashes." SIR CHAS. MORRISON-BELL, 
 Morning Post, October 29th, 1912. 
 
ON PUNISHMENT. n 
 
 Hence arises a simple social morality based on 
 acceptance of what is serviceable to the strong 
 or surviving tribe. And hence, too, crime in the 
 earliest societies is that which is anti- tribal, a 
 thing to be met with stern repression, not on 
 moral grounds but of sheer necessity. 
 
 The _ next step in penological evolution is the 
 introduction of the idea of punishment. 
 
 This idea of punishment has about it originally 
 a semi-theological atmosphere. It is " a sort of 
 sacrifice to the goddess of Justice "* and has in it 
 a notion of balancing so much wrongdoing by so 
 much suffering. Those acts which prove con- 
 trary to the primitive social serviceability, and 
 which by habit have come to be regarded in the 
 race mind as immoral, are in the nature of things 
 in opposition to. the tribal deity, who typifies the 
 effort to concrete the abstract idea of power, of 
 power that is, exercised on behalf of the tribe and 
 the racial purpose. The deity demonstrates his 
 authority by inflicting suffering for opposition. 
 Presently it becomes his duty to do so, or the duty 
 of his ministers. 
 
 This marks the first stage of punishment. 
 
 The doctrine of punishment inflicted not as a 
 moral necessity but with a view to its deterrent 
 quality is of much later development. It marks 
 a loss of tribal unity and a sense of a new in- 
 dividualism. Society has become " itself stricken 
 with fear, trying to stamp out criminality by 
 fear/'f The individual demands protection from 
 the community against other individuals who 
 threaten his well-being or safety or existence. 
 Society is called upon to act as the frightened 
 
 * Edward Carpenter : Prisons, Police and Punishment. 
 t Edward Carpenter. 
 
12 ON PUNISHMENT. 
 
 or injured individual himself would act, and 
 endeavours to strike fear into the hearts of ill- 
 doers by the terror of its punishments. 
 
 From thence onward, all three notions become 
 confused punishment for pure revenge, punish- 
 ment for desert, and punishment for deterrent 
 purposes. These become further confused by the 
 unbalanced nature of the advances made in 
 the progress of civilization. One or other notion 
 rises to the surface in penal practice as the senti- 
 ment of the day or the moment dictates, modified 
 by and varying with the intelligence of judge, 
 magistrate, and public. 
 
 For because of the want of any deep con- 
 sideration of the whole problem of criminality, 
 the most civilized societies are constantly revert- 
 ing in the strangest of ways to the most primitive 
 and the most brutal of actual practices. Students 
 of criminology are but too painfully aware how 
 readily, at each crisis, all kinds of men and women 
 call for reversion to outworn methods of violence, 
 especially for those two vicious remnants of 
 mediaeval penology, flogging and the death 
 penalty. To determine the sentimentalists in 
 this respect, it is but necessary to recall the apt 
 words of a recent writer in the Nation " By 
 their whips shall ye know them/' 
 
 And yet crime has never been lessened by resort 
 to violence. The diminution of crime depends, 
 not on deterrent punishment, not on punishment 
 at all, but on ^wide and impalpable influences, 
 growth of social feeling, spread of education, 
 betterment of manners, decrease of intemperance, 
 improvement in housing/'* in a word on a hundred 
 
 * John Galsworthy : The Spirit of Punishment. 
 
ON PUNISHMENT. 13 
 
 constructive social elements, hand in hand with 
 an ever-increasing betterment in the treatment of 
 the criminal himself, in moderation of the penal 
 law, abolition of capital and corporal punishments, 
 brandings, ear-croppings, stocks, thumbscrews, 
 gibbetings and treadmills. And with this has 
 also come an era of scientific and humane method, 
 the introduction of suitable and intelligent work, 
 clean habitations, better food, Borstal systems 
 and general efforts at reclamation. " The bar- 
 barous penal code/ 1 said King Edward VII. at 
 the opening of the new Central Criminal Court in 
 1907, " \vhich was deemed necessary a hundred 
 years ago, has gradually been replaced in the 
 progress towards a higher civilization by laws 
 breathing a more humane spirit and aiming at a 
 nobler purpose/' At the same time, and pari 
 passu with this humanising of the law, a recent 
 official document tells us that the members of the 
 predatory classes are appreciably fewer than in 
 1857, in spite of the fact that in the interim the 
 population has nearly doubled.* 
 
 Yet so rooted are the old ideas that we cannot 
 release our hold upon them, cannot, in spite of the 
 appalling evidence of recidivism,t relinquish the 
 notion that by the use of force we can and will 
 put down crime, cannot bring ourselves to admit 
 the true facts of the disease-nature and the social 
 character of criminality and the duty, the sole 
 rational duty of any intelligent community 
 towards this disease. This duty is, obviously, to 
 seek a cure by patient experiment, as with all 
 disease, and to abandon not only the primitive 
 
 * Criminal Statistics, Part I., 1908 : Review of the Progress 
 of Crime since 1857. 
 | See page 17. 
 
14 ON PUNISHMENT. 
 
 methods of revenge which belong to the age of 
 human childhood, but punishment for desert, for 
 this assumes some divine power of judgment and 
 knowledge of the hearts of men, and for deterrence, 
 which is rarely efficacious, and to find the way to 
 reclaim, reform and restore the criminal to society, 
 a healthy and a sane unit. If the criminal cannot 
 answer to the efforts at reclamation, cannot, in 
 short, be cured, and such will prove a diminishing 
 number, then, and then only, he needs to be 
 segregated permanently, 'not, as at present, 
 turned loose after punishment upon Society. 
 
 These suggestions have little in common with 
 the sentimental views which call for violence. 
 The humanitarian, often enough accused by the 
 unthinking of an overweening tenderness for the 
 criminal, is not primarily concerned with the 
 criminal at all. Faced with recidivism, or the 
 plain failure of current methods ; with the fact, as 
 Romilly pointed out some fifty years ago, that 
 " Cruel punishments have an inevitable tendency 
 to produce cruelty in the people " and so to 
 produce further crime ; with the obvious success 
 of the more rational methods of reclamation, 
 illustrated by the Borstal and similar systems ; 
 the humanitarian works for the establishment of 
 a new view of crime as disease, and which, reject- 
 ing the older tribal and primitive notions witfy 
 their demands for revenge and deterrence by 
 fear and punishment, shall view this problem in 
 the light of modern science, penological fact, and 
 that ethic which is summed up in the expression 
 the newer social consciousness. 
 
II.ON RECXAMATION AS A 
 PENOLOGICAL METHOD. 
 
 IN considering the demand made by humani- 
 tarians for the acceptance of the principle of 
 reclamation in the treatment of criminals, it is 
 well to define what we mean by crime. For there 
 is constant confusion between an immoral act and 
 an illegal one, between anti-social acts, and those 
 that the laws make criminal. A criminal act is 
 nearly always an anti-social one, but the reverse 
 is by no means true if the term criminal be con- 
 fined to its legal sense. That capitalistic system 
 to which society has at present evolved, gives vast 
 scope for anti-social acts in the form of trusts, 
 and combines, and corners, and these acts are not 
 illegal, and are not, therefore, properly described as 
 criminal. Society, one may say, is not ripe for 
 their criminalisation. The men who commit them, 
 so far from bringing discredit upon themselves, 
 are still the respected, the honoured, the titled, of 
 civilized mankind. They, at any rate, wield the 
 power of the State and the industrial machine, 
 and there is a long row tp hoe before they will 
 come to be counted by law with the criminal 
 classes. The law as it stands reflects the main 
 drift of public opinion, an opinion which does not 
 rise to any very high ethical level. The moral 
 law, considered from any altruistic standard, and 
 British law, are very far from being the same. So, 
 
16 ON RECLAMATION AS 
 
 then, we must consider crime as anti-social action, 
 which is recognised as such by the law of the land, 
 and punished accordingly. 
 
 Now, the man who commits an anti-social act 
 of this kind sets himself in opposition to one of 
 the most ancient of instincts the instinct of 
 tribal self-protection. The instinct of the primi- 
 tive tribe is to destroy such a man, and though 
 the ages of growing civilization have somewhat 
 modified this instinct, yet the desire to punish, 
 sometimes to the death, is still a common enough 
 trait in social psychology. The laws of civilized 
 countries very largely reflect this feeling, not to 
 speak of lynch-law, which every now and again 
 determines the fate of some anti-social, or supposed 
 anti-social, individual. Or it may be of some 
 individual, acting in direct opposition to the low 
 ethical consensus of opinion of the general public 
 (i.e. the tribe), as embodied in the law. For, 
 curiously enough, in this matter, the criminal and 
 the social reformer both illustrate the same 
 psychological fact. The tribe hates the person 
 who acts in opposition to its received moral code, 
 be the action good or bad. 
 
 But the growing consciousness of democracy, 
 by which is meant the growing consciousness on 
 the one hand of the meaning of social relations, 
 and on the other of the right of the individual to 
 be an end in himself, apart from all considerations 
 of class or sex or race that awakening of the 
 democratic sense which began for Western 
 Europe in the great French Revolutionary period 
 is gradually bringing about a new conception of 
 the criminal, and of his just treatment by society. 
 We grow more and more aware of the fact that 
 biological science and economics, as well as ethics 
 
A PENOLOGICAL METHOD. 17. 
 
 and religion, impress upon us as truth that no 
 man lives, or can live, to himself alone. Anti- 
 social action, criminality, has a cause which is 
 rooted in the conditions of society, and for which 
 each and all are responsible. This, let it be said, 
 is not to plead an irresponsibility of the individual, 
 to weaken his moral sense. If society makes the 
 individual, the individual also makes society. 
 But if the individual organism be called upon for 
 moral effort and sane and rational conduct, so 
 also may we call for higher intelligence in its 
 conduct on the part of the social organism. And 
 a consideration of the great extent of social 
 responsibility should stimulate to a more rational, 
 social and humane action on the part of society 
 in its treatment of criminals. 
 
 Turning to a practical illustration of this 
 question, it may well be asked : Could anything be 
 more irrational and futile than the convict prison 
 system as at present carried out ? Presumably 
 the modern justification for penal servitude and 
 kindred punishments is the outraged moral sense 
 of the community seeking to deter and to protect 
 itself by the infliction of pain and suffering. But 
 consider the results. The stupefying and deaden- 
 ing moral effect of such places as Portland, Park- 
 hurst and Princetown, simply works to produce an 
 appalling recidivism,* and does nothing, or but 
 
 *RECIDIVISM. On the question of recidivism the following 
 from the Report of the Commissioners of Prisons, 1912, is 
 instructive : 
 
 " If the total receptions on conviction during the year be 
 taken (i.e. of sentences to penal servitude, Borstal detention, 
 and ordinary imprisonment), viz. : 124,399 males and 
 34,468 females, the returns show that a total of 75,268 males 
 and 26,204 females had incurred previous convictions, or a 
 percentage of 60-5 and 76*0, respectively, while 39-^ and 24, 
 B 
 
18 ON RECLAMATION AS 
 
 little, to hinder the ever-continuous stream of 
 crimes, violent and otherwise. For such diminu- 
 tion of crime as there is, is not due to prisons, 
 police and punishments, but to the rise in social 
 and humanising conditions outside the penal 
 system. Prisons, with their degrading punish- 
 ments, only further degrade a man, producing 
 fitness, as one report of the Borstal Association 
 has it " for nothing but further terms of im- 
 prisonment." 
 
 Thus Sir Godfrey Lushington, Report of 
 Departmental Committee on Prisons, 1895 : " I 
 regard as unfavourable to reformation the status 
 of a prisoner throughout his whole career ; the 
 crushing of self-respect, the starving of all moral 
 instinct he may possess, the absence of all oppor- 
 tunity to do or receive a kindness, the continual 
 association with none but criminals, and that only 
 as a separate item amongst other items also 
 separate ; the forced labour, and the denial of all 
 liberty. I believe the true mode of reforming a 
 man or restoring him to society is exactly in the 
 opposite direction of all these ; but, of course, this 
 is a mere idea. It is quite impracticable in a 
 
 respectively, had not been previously convicted. O? this 
 large number who had been previously convicted 
 
 40,449 males and 11,271 females had been previously convicted 
 
 i to 4 times. 
 
 3.964 1,656 ,, 5 
 
 12,735 , 4,614 ,, ,, ,, 6 to 10 
 
 10,295 3,624 ,, ,, ii to 20 
 
 7,825 ,, 5>39 *, ,, ,, above 20 ,, 
 
 So also is the following from The Times of January 2oth, 
 1913 (case of James Orpin, labourer, at the Bedfordshire 
 Assizes, for poaching). " Orpin, who had been sixty-five 
 times summarily convicted for poaching, he (the judge) 
 sentenced to 18 months' hard labour." 
 
A PENOLOGICAL METHOD. 19 
 
 prison. In fact, the unfavourable features I have 
 mentioned are inseparable from prison life." 
 
 The fact is, the more severe the punishment, as 
 punishment, the less likely it is to have any effect 
 in diminishing crime ; nay, the very reverse. Dr. 
 Douglas Morrison, the well-known Rector of St. 
 Marylebone, and himself for many years a prison 
 chaplain, has forcibly written : 
 
 " If the penal laws of the past teach us any- 
 thing, they teach us that crime cannot be put 
 down by mere severity. Consult the statute 
 book, and you will find that hanging, branding, 
 burning, mutilation, used to be the punishment for 
 offences which are now dealt with by a petty fine. 
 Did these atrocious punishments put a stop to the 
 crimes they were directed against ? We know, as 
 a matter of fact, they did nothing of the kind. 
 These penalties had no effect, because crime 
 springs from conditions which punishment cannot 
 touch." 
 
 Now, surely, from the practical standpoint, it is 
 better to try and make good citizens of men and 
 youths who have never had more than half a 
 chance, as all prison statistics show is the case 
 with the vast majority of prisoners, than to 
 brutalise and degrade for a term of years, by a 
 machine-like treatment ^with the certain result 
 that at the end of the "term they will commit 
 other crimes ; having lost their individuality, 
 their self-respect, and their will power in the 
 process of serving their time, and having received 
 no sufficient stimulus to live any finer or more 
 social life. For this must necessarily be the case 
 in an institution whose primary object is one of 
 punishment. 
 
 Reclamation, as the object to be aimed at, in 
 
20 ON RECLAMATION AS 
 
 the treatment of every prisoner capable of being 
 reclaimed, is a penological policy at once more 
 reasonable and humane, and vastly more in the 
 interests of an intelligent and civilized community, 
 than the hopelessly inefficient method of punish- 
 ment of society conceiving itself to possess some 
 divine attribute of justice. For, as Alfred Russel 
 {Wallace has truly said : " We never can know all 
 Hhe complex forces which drove the guilty man to 
 Ihe fatal deed/' 
 
 It is just to recognise that considerable efforts 
 are already being made in the direction of recla- 
 mation. The system in vogue at Borstal and 
 some other prisons, for young male offenders is 
 frankly based on a reformative ideal, and has met 
 with very great success. Since the Borstal 
 system was introduced, some hundreds of youths 
 have been saved from falling into the class of 
 habitual criminals or recidivists. But this system 
 needs to be extended to older prisoners, as has 
 already been done successfully in some American 
 prisons, for age is not the only factor that ought 
 to be considered. 
 
 But some prisoners are beyond reclaiming ! 
 True, but then what sense is there in punish- 
 ments, short or long, for people whose minds are 
 so abnormal that they cannot be reached by any 
 social stimulus, or so weak that they cannot 
 resist the criminal tendency ? To send such to a 
 convict prison for a term of years at a heavy 
 expense to society to a convict prison like that 
 on Dartmoor, with its harsh mind-destroying 
 " system " and then, by this admirable plan, 
 having further degraded and weakened them 
 from what they were when sentenced, to let them 
 loose on society, is surely the climax of penological 
 
A PENOLOGICAL METHOD. 21 
 
 absurdity. The obvious treatment for persons 
 who are incurably diseased, in a moral or mental 
 sense, is to segregate them, and in reasonable and 
 kindly conditions, to detain them permanently. 
 But these will prove to be a comparatively small 
 proportion and, with the advance of social con- 
 ditions, a diminishing number. 
 
 The objection often urged against detention 
 beyond a limited and determined period, is not 
 an objection to detention per se, but to detention 
 which is synonymous with prison and punish- 
 ment. When the penological institute is freed 
 from these futilities of barbarism, and partakes of 
 the nature of hospital and asylum, with intelligent 
 helpfulness and trained treatment, and with the 
 ever present possibility of cure and of return to 
 normal conditions, the objections to socially 
 imposed segregation will largely disappear. For 
 Help, and not Hindrance, will have then become 
 the animating motive of Society's action towards 
 the criminally disposed* 
 
22 THE TREATMENT OF 
 
 III THE TREATMENT OF HOMICIDAL 
 CRIME. 
 
 THAT the penal codes of civilized nations are 
 invariably behind the moral sentiments and 
 humane tendencies, if not of all, of the greater 
 part of the peoples of those nations, is perhaps a 
 natural condition of things. Any comparative 
 study of the criminal laws of various countries 
 does but serve to emphasize the fact. The dread 
 hand of the law lies heavily upon us, and, con- 
 sidered from an ethical standpoint, particularly 
 the criminal law. 
 
 The treatment meted out nowadays by an 
 intelligent parent to the offence of a child, and that 
 which obtained in the past ; the treatment of 
 wrongdoing in school life now and in the days 
 gone by ; illustrate the growth of ideas in regard 
 to punishment. Time, there are still parents and 
 teachers who for every offence, or for very many 
 offences, will rush to violent punishments. In 
 most of the great historic public schools for boys in 
 England, for example, corporal punishment is still 
 maintained, partly as a tradition and result of a 
 conservative habit of mind but chiefly because of 
 the still lingering belief that lies at the root of all 
 punishment, that fear is the greatest or a very 
 great factor in the making of the moral man. 
 
 Butgwe may at least flatter ourselves that this 
 
HOMICIDAL CRIME. 23 
 
 method of dealing with moral evil is becoming 
 obsolete. We smile to-day at the story of the 
 renowned Dr. Keate at Eton saying to some of 
 his pupils : " Be pure of heart, boys, or I'll flog 
 you ! * 
 
 The newer schools do not use such methods, and 
 the products of these schools may fairly challenge 
 comparison. For children so educated a finer 
 sense has replaced the older physical fear to do 
 wrong. For there is fear and fear, the fear of 
 external results leading to punishment and the 
 higher fear of self-condemnation. 
 
 Like school like parent. The thoughtful parent 
 who cannot place the fear of God's wrath, and 
 still less the fear of the rod, before the child, is not 
 devoid of means to the making of the moral being. 
 Rather he is in the stronger position, for he sees 
 what apparently the older schoolmaster and the 
 older parent did not see, or did not trouble to see 
 that the ill of an act does not lie in the act per se, 
 but in the state of mind that found expression in 
 the act. Hence the fundamental idea of punish- 
 ment, fitting a consequence to an act, becomes for 
 him an obvious absurdity. For none can say 
 what the penalty is that would balance the evil 
 deed. The doer of the deed is not to be punished 
 for an evil act, but to be treated for a condition of 
 mind which is opposed to the good of the larger 
 self and, resulting therefrom, of society. Such 
 treatment, as in bodily ills, may need to be hard, 
 even repellent, and will appear, to some to be prac- 
 tically the same as punishment But the actuating 
 motive is quite different, and the moral results also. 
 
 And if this is true of ill-doing children, how 
 much truer is it of criminals ! And here I may 
 remark that the term criminals must be taken to 
 
24 THE TREATMENT OF 
 
 mean criminals who are caught, for it must be 
 obvious to everyone that there is no real line in an 
 ' ethical sense between criminals and the rest of 
 society. r The seed of criminality/ 1 as it has 
 been said/" is in each of us," and indeed if crimi- 
 . nality means anti-social action, there is very much 
 more than the seed in many eminently respectable 
 people. But using the word " criminals " in the 
 conventional sense, I suggest that our methods of 
 dealing with such are very largely crude and 
 obsolete and, for ethical purposes, useless in the 
 extreme. And as it is the child's state of mind in 
 the performance of a wrong act that is the essen- 
 tial factor, and not the nature of the act in itself, 
 and since that state of mind is so complex a matter 
 that even when we consider it with every 
 sympathy we find it most difficult to deal with, so 
 is it even more true of the criminal and the com- 
 plex forces of his mind and environment. And 
 this should surely give us pause in our readiness 
 to assign punishment for wrongdoing. 
 
 And yet, though we all know that this is so, and 
 whilst even old-fashioned criminologists tell us 
 emphatically that the punishment for crime 
 theory is a mere absurdity and a practical failure, 
 the criminal codes of Europe and America show 
 but small advance in the direction of a more 
 intelligent idea in regard to this gigantic and ever 
 present problem, the problem of the criminal and 
 what to do with him. 
 
 This is borne out by a study of a Return upon 
 Homicidal Crime issued by the Home Office.* 
 This document is an account of the various 
 punishments for this crime provided by the penal 
 
 * Return of Punishments for Homicidal Crime Abroad, 1908. 
 
HOMICIDAL CRIME. 25 
 
 codes of France, Germany, Austria, Hungary, 
 Spain, Italy, Holland, Belgium, Sweden, Norway, 
 Denmark, Switzerland, Portugal, Russia and the 
 United States of America. 
 
 The English student of penology will take up 
 this Return with much interest and hope, but will 
 put it down with no little despair. Surely, he 
 will think, if we English are " stupid in these 
 matters/' as John Bright told us, from other 
 States we may learn wisdom. He will indeed find 
 some wisdom, chiefly from one or two of the 
 smaller nations, but what a field of unintelligent 
 brutality, what a weary round of hangings, 
 guillotinings, stranglings and electrocutions, of 
 chains for life, of travaux forces a perpetuite, 
 schwerer Kerker and deportations. And all this 
 huge system of law and the infliction of the 
 penalties of the law, from Moscow to New York, 
 from Munich to San Francisco, from Madrid to 
 Copenhagen and the North and yet, throughout 
 all the codes of all the nations included in the 
 Report, no suggestion of intelligent understanding 
 or desire to understand what is homicidal crime, 
 its cause, its cure and its prevention. Only the 
 dull and stupid round of punishment for crime, 
 penalty for act, the gallows and penal slavery. 
 The legally insane alone receive treatment for 
 their disease, and that, not because of any effort 
 to understand homicide, but because legal insanity 
 is not now ferociously punished as in the merciless 
 days before the French Revolution. 
 
 Take the comparatively simple question of 
 infanticide by a mother, usually by a girl who has 
 been seduced and abandoned. Any intelligent, 
 sympathetic, humane man, let alone a woman, 
 knows that here is a tragedy of mind, a madness, 
 
26 THE TREATMENT OF 
 
 an intolerable grief and depth of despair. For no 
 sane person believes that a sane mother delibe- 
 rately kills her offspring. Here is disease, a sick- 
 ness to death. If in such a state of mind the 
 mother destroys herself, all people, even the 
 unintelligent, pity her ; and in England the 
 coroner's jury invariably gives its verdict of 
 temporary insanity. 
 
 And how do the criminal codes of Europe deal 
 with these unhappy ones ? What treatment for 
 this disease do the laws of Europe provide, or what 
 moral understanding do they show in the matter ? 
 England issues sentence of death and France 
 death ; Germany, three to fifteen years' penal 
 servitude, Austria, ten to twenty years' hard 
 labour ; Hungary, five years ; Italy, three to twelve 
 years ; Holland, up to nine years ; and Belgium, 
 from ten years' penal servitude to death. I 
 cannot find that American law, any more than 
 English, even distinguishes infanticide from other 
 kinds of murder, except perhaps in those States 
 where gradation of murder crimes has been intro- 
 duced and where it is probably murder in the 
 second degree with penalty of penal servitude. 
 These penalties are all based on the punishment- 
 for-crime theory. What or who or how the 
 prisoner is, what she needs and has needed, 
 what society owes her, what change can be 
 effected in her mental conditions, what society 
 owes to itself in the matter of making her again 
 a sane and intelligent member of the community 
 all these most essential factors do not come into 
 the codes at all. And so a stupid and useless and 
 soul-destroying punishment, supposed to fit the 
 crime, is inflicted. The law remains still in the 
 Middle Ages. 
 
HOMICIDAL CRIME. 27 
 
 In this Return we have some thirty or forty 
 foolscap pages of punishments penalties of 
 chains, of hanging, of slavery but never a 
 suggestion of curative treatment to be applied. 
 One would think that crime, like insanity and 
 hysteria in the old days, suggested nothing to 
 jurists but punishment. It is true, of course, and 
 gladly to be admitted, that if we could put all 
 modern ideas with regard to the criminal on one 
 side, and could frankly accept the punishment- 
 for-crime theory, then these European and 
 American codes do most certainly show an advance, 
 and a great one, on the ideas of criminology held 
 by our forefathers a hundred years back. The 
 awful punishments of the eighteenth century have 
 nearly all been effectually uprooted. From the 
 moment when Voltaire, with sleuth-hound re- 
 morselessness, took up the cause of the unfor- 
 tunate Galas, the days of such infamies as break- 
 ing on the wheel were numbered, and penalties 
 such as gibbeting, which a Whig government 
 revived in England as late as 1832, would not be 
 tolerated in any part of civilized Europe or%. 
 America. The civilized public is ceasing to I 
 believe in brutality, if it has not yet become I 
 intelligent enough to desist from it. It does not 
 want, except in some cases, to illtreat the prisoner, 
 but a selfish fear backed by the conservatism of 
 officialism and legality makes any change a difficult 
 { thing to bring about. 
 
 The most hopeful sign indicated by this Return 
 is the fact that all the more advanced countries in 
 Europe, England of course excepted,* have intro- 
 duced gradation of murder crimes. Details are 
 
 * " The lamentable defect of our system in not distinguish- 
 ing degrees of murders." Times, April 4th, 1913. 
 
28 
 
 THE TREATMENT OF 
 
 not given for every State in the American Union, 
 but at least sixteen of those mentioned recognize 
 murder in the first and second degrees. And this 
 I take to be a great advance, for it means that 
 even the crime of murder is being brought within 
 the scope of penal reform. Murder in the second 
 degree will come within reforms in the direction 
 of indeterminate sentences and curative treat- 
 ment. This is also the case in regard to the first 
 degree in those enlightened States that have finally 
 parted with that remnant of a barbarous age, the 
 public executioner. 
 
 It is interesting in passing to note these latter 
 countries, mainly at present the smaller ones, 
 where advances in general education and the 
 spread of humane and ethical tendencies aro 
 more easily effected. Thus in Europe : Holland, 
 Belgium, Switzerland, Norway, Denmark and 
 Rumania ; in the United States : Maine, Kansas, 
 Michigan, Wisconsin, and Rhode Island ; and 
 in South America, Uruguay may be cited. To 
 these must be added Italy and Portugal. Italy is 
 not a very hopeful example, but it must be 
 remembered that in that country abolition is not 
 so much due to a general advance of the people in 
 humane legislation as to that political unification, 
 
 ITALY AND HOMICIDAL CRIME. 
 
 Capital punishment abolished throughout Italy 1889. 
 Proportion of homicides of every kind for every 100,000 of 
 inhabitants up to latest statistics published : 
 1889 13-3 1895 12-4 1901 
 
 1890 
 1891 
 1892 
 
 1893 
 1894 
 
 I2'0 
 I3-0 
 I4;4 
 
 I2'7 
 
 1896 
 1897 
 1898 
 1899 
 1900 
 
 I2'3 
 I2'7 
 
 10-8 
 
 1902 
 1903 
 1904 
 1905 
 1906 
 
 9*8 
 9'8 
 9; 4 
 
 8-5 
 
 7-8 
 
 These figures are supplied by Prof. Ruata, of the University 
 of Perugia. 
 
HOMICIDAL CRIME. 29 
 
 when the law of Tuscany in regard to this matter 
 a law which was the work of the great jurist, 
 Beccaria became the law of United Italy. And 
 thus Sicily, which, up to the time of the union 
 maintained the penalty of death, is reported to 
 produce some ten times as many murders in a 
 year, in proportion to population, as Tuscany, 
 which has had no such penalty for a century. 
 
 Switzerland offers a better example from an 
 English point of view. The Federal Parliament 
 abolished capital punishment in 1874, but in 1879 
 the right of the Cantons to severally restore it was 
 allowed. Eight did so, but none has ever actually 
 carried out an execution. As in Denmark and 
 Belgium, where the law of death is still on the 
 statute book, public opinion has advanced too far. 
 Holland and Norway have no death penalty, and 
 homicidal crime in these countries has steadily 
 decreased of late years. The case of France is an 
 interesting one, for here there was a struggle 
 between the humane and moral perceptions of an 
 intellectual class, to which President Fallieres 
 himself belonged, and the selfish fears and un- 
 intelligent brutality of the public accustomed to 
 public executions. The fact of ati increase in 
 violent crime, due to the laxity of the adminis- 
 tration of the law and its consequent uncertainty, 
 was a point in favour of the reactionaries. More- 
 over, violence, whether in demanding flogging or 
 hanging or the guillotine, always finds a support 
 in playing on the selfish fears of the unthinking. 
 The death penalty in France, after nearly two 
 years suspension, was reintroduced. 
 
 But obviously with the advance of penological 
 reform and the transmutation of methods of 
 punishment into reformative and curative ones, 
 
I 
 
 30 THE TREATMENT OF 
 
 the penalty of death will have to go. Perhaps the 
 introduction of gradation, or the adoption of 
 indeterminate sentences or simple disuse will 
 bring this about. Whatever the method, once the 
 idea of punishment for crime is given up there can 
 be no moral excuse for this ugly remnant of the 
 good old times. 
 
 It would occupy too great a space to deal with 
 half the issues in ethical conduct suggested by this 
 Return, that is to say in regard to the State's 
 attitute towards homicidal crime. I will mention 
 but two, for they are characteristic. In Germany 
 whoever kills his opponent in a duel is not punish- 
 able for murder or for manslaughter, but for 
 duelling. The punishment for this is detention in 
 a fortress for two to fifteen years. This is indeed 
 one of those peculiar moral inversions due to 
 military ideas. The German who kills a man in a 
 passion commits Todschlag and is sentenced to five 
 or more years of penal servitude ; but if, using his 
 military training, he acts more cautiously and 
 challenges the man he desires to kill to a duel, he 
 will get off with two or more years detention. 
 The French law, more logical in this matter, 
 treats homicide in duelling as murder punishable 
 by death. The practice, however, is probably 
 much the same. Certainly we never hear of the 
 execution of a French duellist. 
 
 Again, according to Arts. 327 and 328 of the 
 French Code, it is laid down that " homicide " 
 commanded by the law or by legitimate authority 
 is not a " crime/' Could anything better illus- 
 trate the absurdity to which the theory of punish- 
 ment for crime has been reduced ? For if the 
 moral ill lies in the act, as all criminal law at 
 present supposes, and not solely in the mental 
 
HOMICIDAL CRIME. 31 
 
 condition of the criminal, how can a criminal act 
 cease to be so by giving legal authority for it ? If 
 murder, lying and theft are moral ills, they are 
 such whether sanctioned by one man or a dozen 
 or a nation. Either, with Nietzsche, we must get 
 " beyond good and evil " and find a new basis for 
 our moral life, that is to say abolish ethics alto- 
 gether in favour of the doctrine of the " blond 
 beast/' or more and more we must come to 
 recognize that our individualistic conceptions of 
 good and .evil must be socialized, and made 
 applicable, not only in the relationship of man 
 with man, but of man with the State, and of State 
 with State. And this, indeed, is the trend of all 
 modern civilized life. And, as to the cause and 
 cure of crime, a very true word has been spoken 
 by Dr. Morrison, whose long experience gives 
 force to his words : " Crime springs from dis- 
 orders in our social system, and until these dis- 
 orders are healed or alleviated, crime will continue 
 to flourish in our midst, no matter how severe and 
 strong you may make the penal law. Some of 
 these disorders consist of physical or mental 
 infirmities ; some of economic hardship or vicissi- 
 tudes, and some in the low standard of life and 
 conduct which prevail in our midst. The true 
 method of diminishing crime is to pluck it up by 
 the roots. And the only way to pluck it up by 
 the roots is to alleviate the social disorders by 
 which it is produced/' This is a more rational, 
 historically justified and sane view of the case 
 than that foolish proposal, supported by some 
 eminent persons, of capturing the so-called pro- 
 fessionally criminal class and shutting it up 
 permanently under lock and key. For prisons, 
 police, and punishment do not effect that moral 
 
32 THE TREATMENT OF 
 
 and social change without which crime, like all 
 other evils, springs up perennially. As a writer in 
 The Nation very truly remarks : "At bottom, 
 the criminal problem is not so much a penal as a 
 social problem." 
 
 Such a Return as that I have referred to, im- 
 presses one with the crying need for the applica- 
 tion of a larger moral conception of penology and 
 criminal law, or rather moral and social also. 
 Present methods are evil both in the treatment of 
 homicidal or other crimes, and both as regards the 
 individual and society. And this is chiefly or 
 entirely due to the absolute lack of any intelli- 
 gently ethical basis. Criminal law is as hap- 
 hazard as civil law. Two deeds entirely similar in 
 the ethical reaction entail social advancement in 
 the one case and penal servitude in the other. 
 The worst criminals are not always those that are 
 convicted, nor the worst murderers those that 
 are executed. And those that are imprisoned and 
 suffer penal servitude under present conditions 
 are weakened in every moral, social and humane 
 instinct by their treatment instead of being 
 strengthened thereby. 
 
 " But this I know, that every law 
 That men have made for Man, 
 Since first Man took his brother's life 
 
 And the sad world began, 
 But straws the wheat and saves the chaff 
 With a most evil fan."* 
 
 What, then, it may be asked, should be the 
 treatment accorded to the homicidal criminal ? 
 Well, in the first place, it must be treatment and 
 not mere punishment for crime. And in the 
 
 * Ballad of Reading Gaol : Oscar Wilde. 
 
HOMICIDAL CRIME. 33 
 
 second place, this treatment must be based on a 
 much more elastic interpretation of the legal defini- 
 tion of insanity. We must recognize that the 
 thoroughly normal man, the sane man, is much 
 rarer than we try to believe. Thirdly, we need an 
 extended recognition of social responsibility. 
 With the advance in social consciousness we shall 
 come to see that " society itself is the primarjl 
 cause of murder/' as Dr. A. R. Wallace tells us! 
 And when this is recognized, and treatment re- 
 places punishment, much more intelligent, trained 
 and sympathetic staffs must replace our present 
 prison warders, so that such treatment may be 
 administered in a manner at once wisely firm and 
 intelligently humane. I do not pretend to 
 dogmatize as to the content of such treatment 
 system, but often in these cases the simplest 
 remedies are those most needed and most lacking 
 in prison life humane and healthy diet, open air, 
 stimulating occupation, sympathetic teaching and 
 wise control all these factors, the antitheses of 
 those provided by our horrible town life and often 
 village life also. These are the remedies for the 
 diseased homicide, with his heavy mental cloud 
 and uncontrolled passionate nature. 
 
 Perhapy;he time is not yet ripe for so complete 
 a change. ( Nowhere, indeed, in his social life, does 
 civilized man so greatly need an ethical uplift, as in 
 his dealing with the penal problem^ The hope of 
 the future lies in the fact that never before has 
 he so greatly realized it, nor have so many given 
 of time and thought and energy to the bringing 
 about of reform. For with realization of an ill 
 comes insistence on a cure, and when this is 
 insisted upon, the nature of the cure should not 
 prove beyond the capacity of science and morality. 
 
34 THE LAW ON ITS TRIAL 
 
 IV. THE LAW ON ITS TRIAL : AN HIS- 
 TORICAL RETROSPECT. 
 
 SOME eighty years ago a man was tried in Lincoln- 
 shire for stealing a horse. In those terrible old 
 days the crime was a capital one. Executions 
 in public were counted by the dozen, and it was no 
 uncommon sight at Tyburn, or on any lonely 
 common, to see the bodies of three or four men 
 and w r omen hanging in a row. 
 
 This unfortunate man, therefore, was in im- 
 minent danger of the gallows. Eleven of the 
 jurors were for hanging, but an obstinate old 
 farmer, one Buffam by name, refused to agree to 
 this verdict, and the jury was in consequence 
 locked up. The eleven jurors tried arguments, 
 but failed to move old Buffam, although we are 
 told that " hunger sharpened the wits and pointed 
 the logic of his eleven companions/' Then " they 
 tried persuasion ; it failed ' he wouldn't hang a 
 man for stealing a horse, not he, let what would 
 happen/ They tried threats, but Buffam was too 
 sturdy to acknowledge a fear. At last they 
 humbled themselves to entreaty, and pleaded that 
 they were starving. ' Well, starve ! ' said Buffam. 
 ' We shall get nothing to eat till we return a 
 verdict ' was suggested. ' Never mind/ he re- 
 torted, ' I'll eat the ceiling, but I won't give in 1 ' 
 This vow settled the dispute ; consciences were 
 
AN HISTORICAL RETROSPECT. 35 
 
 adapted to circumstances, and ' not guilty ' was 
 returned as the verdict of them all. However, the 
 affair was not soon forgotten, and the old farmer 
 went by the name of ' Eat-the-ceiling-Buffam ! ' 
 for the rest of his life." 
 
 The story is interesting as showing the rise in 
 the earlier part of the nineteenth century of a 
 humanitarian feeling, an immediate product of 
 the Revolutionary teaching of the great days of 
 1789. The working of the bloody code of the age 
 was being threatened in more than one direction. 
 
 " The Law on its Trial ; or, Personal Recollec- 
 tions of the Death Penalty and its Opponents/' 
 by Alfred H. Dymond, a little book published in 
 1865, and which has long since passed out of 
 print, gives a graphic account of the struggle 
 which took place for a less terrible code right 
 through the first half of the nineteenth century. 
 
 It is significant, perhaps, that one of the 
 principal leaders in this movement, John Thomas 
 Barry, was born in 1790. This Barry founded, in i 
 1828, the Society for Diffusing Information on the 
 Subject of Capital Punishment. It was certainly 
 needed. In 1829, in London alone, twenty-four 
 persons were publicly executed for various crimes 
 other than murder, such as forgery and theft, and 
 as late as 1837, 43$ persons received sentence of 
 death in a single year. 
 
 It is astonishing, as one looks backward, to note 
 how much our ancestors believed in fierce punish- 
 ments, and particularly in the death-penalty as a 
 method of government. What thousands, in- 
 deed, of English folk have been flogged, starved, 
 hanged, and mutilated often for crimes of quite a 
 minor order, or by mistake, or by miscarriage of 
 justice. And when humane people revolt from 
 
36 THE LAW ON ITS TRIAL: 
 
 such modern cruelties as the Denshawai hangings 
 and floggings and imprisonments, it is just to 
 such men as Sir Edward Grey and Lord Cromer 
 to remember that their class, the governing people 
 of England, has only just begun to think other 
 methods to be possible in dealing with the common 
 people at home or abroad. Humanitarianism 
 does not yet go very deep even as a basis of 
 personal conduct, and still less as a method of 
 government. As Verestchagin said with justice 
 in reply to the English critics of his great picture 
 " Shooting from Guns in India " a picture of 
 the execution of the Sepoy mutineers : " Well, 
 but you would do it again/' 
 
 It is, indeed, needful to remember that it is but 
 eighty years ago that the Whig Government of the 
 day revived gibbeting. In 1832, the year that 
 Gladstone entered Parliament as a Tory, and as an 
 opponent of the emancipation of the West Indian 
 slaves, the strangled corpses of two men were 
 exposed in chains, one at Leicester, the other at 
 Jarrow Stake. The experiment was not par- 
 ticularly successful. At Leicester, crowds flocked 
 from all the country-side to see the show, and so 
 intolerable a rioting occurred that the body had 
 to be quickly removed. At Jarrow, a ribald and 
 drunken mob expressed unexpected sympathy 
 with the relatives of the gibbeted victim, and 
 certain persons, defying the law, removed the 
 body by night. After that there was no more 
 gibbeting. 
 
 But this attempt to terrorise by ghastly 
 brutality, sanctioned, or rather ordered, by the 
 Whig Home Secretary of the day, throws a 
 peculiar light on the general attitude of the 
 governing classes of England. And one need not 
 
AN HISTORICAL RETROSPECT. 37 
 
 suppose that there was any hypocrisy in the 
 charge brought against Sir Samuel Romilly by the 
 law officers of the Crown, when he proposed to 
 abolish drawing and quartering, that he was 
 " breaking down the bulwarks of the Constitution." 
 The " godly butchery, 1 ' as it was called, based by 
 Lord Coke on a number of Scripture texts, came to 
 an end only some ninety years ago. Women, it is 
 true, were not so mangled. The Constitution, 
 reflecting in a sincere manner that curious senti- 
 ment which we know as " British Respectability/' 
 found a more excellent way, for, as Blackstone 
 remarks, with an odd commingling of Mrs. Grundy 
 and the savage: "As the decency to the sex 
 forbids exposing and publicly mangling their 
 bodies, their sentence is to be drawn to the 
 gallows, and there to be burnt alive ! " 
 
 In 1832, forgery, false coining, and stealing 
 were exempted from the capital penalty ; in 1833, 
 housebreaking ; in 1834, returning from trans- 
 portation ; in 1835, stealing letters from the post 
 office and sacrilege ; and in 1837, rick-burning, 
 maiming, arson, and other crimes. These reforms 
 were mainly the work of Mr. William Ewart. 
 They were not all carried on the first proposal ; in 
 fact, they encountered fierce opposition. 
 
 Thus Lord Ellenborough, speaking in the 
 House of Lords on the Bill to abolish hanging 
 for stealing, said : " Your lordships will pause 
 before you assent to a measure pregnant with 
 danger to the security of property. The learned 
 judges are unanimously agreed that the expediency 
 of justice and the public security, require there 
 should not be a remission of capital punishment 
 in this part of the criminal law. My lords, if we 
 suffer this Bill to pass, we shall not know where we 
 
38 THE LAW ON ITS TRIAL : 
 
 stand we shall not know whether we are on our 
 heads or on our feet/' 
 
 It is easy to laugh at so fatuous a statement, but 
 precisely the same arguments are brought to-day 
 against the proposal to abolish hanging for murder. 
 ' What, not hang murderers ! I should never 
 have a moment's peace ! " was recently said by 
 an eminent person, oblivious of the fact that only 
 one in four murderers is annually convicted, and 
 one in eight hanged. 
 
 In the course of his most interesting but tragic 
 story, the author of " The Law on its Trial " gives 
 us a graphic account of the case of a small boy, 
 aged nine, who, in 1833, was convicted at the Old 
 Bailey of housebreaking, and sentenced to death. 
 This wicked criminal had seen some sweets inside 
 a broken but patched-up shop window. Pushing 
 a stick through the patch he obtained the coveted 
 sweets, and shared them with his playmates. 
 But this was housebreaking according to English 
 law ; and we must suppose that it was in support 
 of the " bulwarks of the Constitution " that this 
 unhappy little creature was dragged before Mr. 
 Justice Bosanquet, and, with all the horrifying 
 accompaniments of an Old Bailey trial, sentenced 
 to die. Mr. Dymond laconically remarks, " He 
 was not executed." 
 
 This case must have occurred about the same 
 time as Lord Ellenborough's speech just referred 
 to. We do not know how confused were his lord- 
 ship's thoughts on hearing of it whether he felt 
 he was standing on his head or no ; nor those of 
 the stony-hearted judge, who could record so 
 monstrous a sentence. But such things were 
 apparently approved by many in authority. 
 Two years before, Earl Grey being Prime Minister, 
 
AN HISTORICAL RETROSPECT. 39 
 
 a boy named John Bell was hanged at Maidstone, 
 aged fourteen ! 
 
 In 1837, however, Lord John Russell was able 
 to pass certain Bills which practically limited the 
 death penalty to murder and attempts to murder, 
 although seven other crimes were still capital 
 until the passing of the Criminal Law Consolidation 
 Acts in 1861. In fact, after 1841 there were only 
 two executions for crimes other than murder. 
 There was an immediate drop in the number of 
 death sentences consequent upon the passing of 
 Lord John Russell's Acts. Thus 1837 saw 43& 
 such sentences, but in 1839 the number had fallen 
 to 56. 
 
 Lord John Russell was a consistent friend of 
 humane reform in the criminal law. Not only did 
 he pass these modifying Acts, but he freely ex- 
 pressed himself in favour of the complete abolition 
 of the death penalty. " For my own part/' he 
 said, speaking of this question, " I do not for a 
 moment doubt either the right of a community to 
 inflict the punishment of death, or the expediency 
 of exercising that right in certain states of society ; 
 but when I turn from that abstract right and that 
 abstract expediency to our own state of society 
 when I consider how difficult it is for any judge to 
 separate the case which requires inflexible justice 
 from that which admits the force of mitigating 
 circumstances how invidious the task of the 
 Secretary of State in dispensing the mercy of the 
 Crown how critical the comments made by the 
 public how soon the object of general horror 
 becomes the theme of sympathy and pity how 
 narrow and how limited the examples given by 
 this condign and awful punishment how brutal 
 the scene of the execution I come to the 
 
40 THE LAW ON ITS TRIAL : 
 
 conclusion that nothing would be lost to justice, 
 nothing lost in the preservation of innocent life, 
 lit the punishment of death were altogether 
 (abolished/' 
 
 But though there was a drop in the number of 
 executions after the Acts of 1837, many horrible 
 cases continued to occur from time to time. 
 Home Secretaries were hard-hearted, more espe- 
 cially Sir James Graham, a most pitiless man, 
 possessed by a great belief in hanging. In 1843 
 he insisted on the execution at Stirling of an old 
 man of eighty-four years of age, named Allen 
 Mair. Sir James Graham on every possible 
 occasion set himself firmly against the granting of 
 reprieves. Queen Victoria in her coronation oath 
 had sworn to administer " justice in mercy." 
 Punch, with much reason, cartooned the legal 
 ruffian who occupied the Home Office as " justice 
 in granite." 
 
 Lord Palmerston, who was Home Secretary 
 somewhat later, had a much more humane mind, 
 and evidently felt greatly the burden of the 
 constant death sentences. On one occasion John 
 Bright had made a tremendous attack on him in 
 the House of Commons. Upon arriving home Mr. 
 Bright had the case of an unhappy man, under 
 sentence of death, brought strongly before him. 
 John Bright was a most thorough-going 
 abolitionist, and the case appealed to him. The 
 next morning at 10 o'clock he sent an urgent 
 appeal to Lord Palmerston, detailing the facts 
 that, in his opinion, would justify a reprieve. A 
 reprieve was granted, Lord Palmerston sending 
 him a courteous note to that effect at noon. 
 
 Palmerston, in fact, seems to have been ready 
 to make use of any good grounds for mitigating 
 
AN HISTORICAL RETROSPECT. 41 
 
 the brutality of the law. Unlike Sir James 
 Graham, he reprieved an old man at Liverpool 
 on the ground of age, some abolitionist supplying 
 him dexterously with a precedent for such a 
 proceeding at the right moment, when he was 
 hesitating between the law and his better feelings. 
 On this occasion the mob, brought together for the 
 debauch of brutality which an old-time public 
 execution meant, became furious at being disap- 
 pointed (for the reprieve only arrived at the last 
 moment), and vented its rage by violently attack- 
 ing Thomas Wright, the Quaker prison philan- 
 thropist, as he left the gaol, supposing him to have 
 been the cause of the reprieve. 
 
 A truly horrible execution, and one that must 
 have done much to put an end to public execu- 
 tions, occurred in 1856. The wretched prisoner 
 raised himself four times in succession after he had 
 been cast off, resting his feet on the side of the 
 drop. The mob began to yell dangerously, the 
 trembling sheriffs raged at the hangman, and 
 finally the miserable Calcraft, whose life had been 
 previously threatened, flung himself in despera- 
 tion on the man, and by sheer weight strangled 
 him, amid fierce cries of " Murder ! " from the 
 drunken and enraged crowd. 
 
 What a public execution in old days was almost 
 beggars description. A graphic account, drawn 
 from Mandeville, has been given elsewhere :* 
 
 " On the morning of the execution the prisoners 
 have all been brought up into the prison yard, and 
 a hubbub goes on almost as bad as a Jews' 
 market. Loud curses from angry quarrellers, 
 shouts for the pot-boys, who scuttle about, 
 
 * The English Peasant : Richard Heath. 
 
42 THE LAW ON ITS TRIAL: 
 
 pouring out ale and other liquids, blows of the 
 blacksmith's hammer, as he pinions those who are 
 going to suffer. At last all is in readiness, the 
 prisoners have mounted the cart, the Ordinary has 
 got up behind, and Jack Ketch in front ; the 
 soldiers press round for fear of a rescue, and the 
 great gates of the prison are swung open. 
 
 If it was hubbub within, 'tis the roar of the 
 ocean without. Jack Ketch and his unhappy 
 freight are received with a storm of oaths and 
 coarse ribaldry, in which some of the convicts join, 
 for most of them are already half-drunk. The 
 sorry procession makes its way through a thick 
 mob, which sways to and fro ; the sellers of gin 
 and other liquors bawling loud enough to be heard 
 above the general din. Again and afrain the 
 hangman's cart stops before a public-house, and 
 while the condemned are taking another draught, 
 the mob rush round them to shake their hands. 
 So eager indeed are the people to show this mark 
 of sympathy, that the struggling and fighting get 
 worse at every stage, until at last the cart is 
 hemmed in. Then heavy blows are struck, 
 pieces of swinging sticks go flying, people are 
 knocked down and trampled under foot, every one 
 gets spattered with blood and dirt ; screams, 
 groans and brutal cries of all sorts produce a 
 tumult beyond description. 
 
 At last the cavalcade reaches the gallows, 
 around which a number of hackney carriages are 
 assembled. These vehicles have brought or 
 contain the people's betters, who have thus come 
 by a more convenient route, and secured the best 
 places to see the show. The Ordinary and the 
 hangman dispatch their duties with small ceremony 
 
j AN HISTORICAL RETROSPECT. 43 
 
 and equal unconcern, and very soon half a dozen 
 human bodies are dangling in the air/' 
 
 Such scenes have passed away for ever. The 
 rising wave of humanitarianism which began with 
 the French Revolution has carried us far since 
 then. The good old days are over. Yet we still 
 have the hangman with us, we still sentence 
 young mothers and boys to death ; and though 
 we have abolished those scenes of horror called 
 public executions, we have failed so far to carry 
 out any of the other recommendations of the 
 Royal Commission of 1864, that last attempt 
 made by Parliament to deal with the death 
 penalty. The efforts of Peter Bedford ; of John 
 Thomas Barry ; of William Ewart, who intro- 
 duced the first bill for the abolition of the death 
 penalty in 1840 ; of Gilpin, who founded the 
 Society for Promoting the Abolition of Capital 
 Punishment ; and of Lord John Russell, cul- 
 minated in the appoint ment of that Commission. 
 Many then hoped that the end of the regime of 
 the gallows was in sight, but Alfred Dymond, who 
 was for some years Secretary of the Abolitionist 
 Society, and who afterwards became a member 
 of the Canadian Parliament, apparently clearly 
 foresaw that the end was not yet. " The Law on 
 its Trial " appeared in 1865, while the Commission 
 was sitting. Its final words were prophetic, and 
 a stirring call for further work. " If," said 
 Dymond, " we can win a successful battle in the 
 complete overthrow of the death penalty, let us 
 not shrink from the conflict ; but if, foiled in this, 
 an advance is gained by the limitation of the 
 punishment, let us but use it as a stepping-stone 
 to fresh efforts, unchecked by the secession of any * 
 who may be content with a partial triumph. If 
 
44 THE LAW ON ITS TRIAL. 
 
 we would strengthen the hands of justice, avert 
 the chances of irremediable error, and elevate the 
 standard of the value of human life before our 
 country and the world, we shall not rest till we 
 have wiped from the book of England's laws the 
 penalty that, framed as a terror to evil-doers, has 
 become an abomination and a curse/' 
 
 NOTE. The Royal Commission on Capital Punishment 
 of 1864 (just half a century ago !) recommended that there 
 be passed : 
 
 " A short and simple enactment providing that no murder 
 shall be punished with death except such as are particularly 
 therein mentioned. 
 
 These should be called murders of the first degree ; all 
 other murders should be called murders of the second degree, 
 and punished as hereinafter recommended. 
 We recommend therefore : 
 
 (1) That the punishment of death be retained for all 
 murders deliberately committed with express malice afore- 
 thought, such malice to be found as a fact by the jury. 
 
 (2) That the punishment of death be also retained fof all 
 murders committed in, or with a view to the perpetration, 
 or attempt at perpetration of any of the following felonies : 
 murder, arson, rape, burglary, robbery, or piracy. 
 
 (3) That in all other cases of murder the punishment be 
 penal servitude for life, or any other period, not less than 
 seven years, at the discretion of the Court." 
 
 This Report was signed by the whole Commission, but a 
 declaration moved by Mr. Wm. Ewart was added stating 
 that : " The undersigned members of your Majesty's Com- 
 mission are of opinion that Capital Punishment might safely 
 and with advantage to the community, be at once abolished." 
 
 STEPHEN LUSHINGTON. 
 
 JOHN BRIGHT. 
 
 CHARLES NEATE. 
 
 WILLIAM EWART. 
 
 No action has been taken by Parliament since then. We 
 are still where we were half a century back. 
 
CRIME AND SOCIAL RESPONSIBILITY. 45 
 
 V. CRIME AND SOCIAL RESPONSIBILITY. 
 
 IT is in harmony with what one may perhaps 
 call the modern growth of social consciousness, 
 that society becomes more and more concerned 
 with the problem of the treatment of those of its 
 members who fall below the accepted normal 
 standard. The submerged tenth, the insane, the 
 degenerate, the criminal, the problem of these 
 abnormal factors of the social organism becomes 
 more and more insistent with the advance in that 
 order which is the expression of a higher con- 
 sciousness, social in its inception, humanitarian 
 in its activity. For it is this note of humani- 
 tarianism that would seem to distinguish the 
 social instincts of the modern world. The concep- 
 tion of a social being which overrides with a stern 
 imperative the desires and satisfactions of the 
 individual, is no new human concept. Egyptian, 
 Jew, Greek and Roman were each in turn 
 possessed by it. What is new, since possibly 
 the French Revolutionary era, is the extension of 
 this social concept to all humanity, and even to 
 sub-humanity, and its impregnation with the 
 spirit of humaneness. 
 
 I need not labour the point, for whatever we 
 may say of the degenerate tendencies of the age, 
 there never was a period in which the question, 
 " Am I my brother's keeper ? " was met with so 
 ready an affirmative. 
 
46 CRIME AND SOCIAL 
 
 JWe are astounded at the harshness, the cruelty, 
 the indifference of the past ; and some militant 
 writers, like the Earl of Meath, would have us 
 believe that this arises from our growing feeble- 
 ness. We have, he tells us, lost our " grit." But 
 perhaps this grit, whose supposed loss he deplores, 
 was but our dullness of spirit with its attendant 
 cruelty ; and a growing intelligence, a humaner, 
 social and human consciousness is the more 
 reasonable explanation of the general revolt 
 against harsh and brutal conditions, for ourselves 
 and for others. 
 
 And this is peculiarly true in the realm of 
 criminology. -We cannot treat our criminals as 
 we did ; we have moved on. We realize our 
 relationship to them as our fathers never did. 
 We see the social, the moral, the economic factors 
 which produce them, and we know that for these 
 factors we cannot escape our share of responsi- 
 bility. The criminal problem, as already re- 
 marked on another page, is not so much a penal 
 as a social problem. And as we sense our 
 responsibility, we shall seek to understand the 
 problem. How far are we, as a society, responsi- 
 ble, and how far is the individual criminal to be 
 
 | blamed for his acts ? And then, since he is there, 
 what is to be done with him ? For we are not 
 only aware, in a scientific sense, of our intimate 
 relationship one with another, but, as I have said, 
 our modern social consciousness is instinct with 
 the humanitarian spirit. To answer these ques- 
 tions is no easy matter. Problems of social life, 
 of economics, of ethics, of heredity, of freewill, all 
 
 \ have to be considered in short everything that 
 bears on the study of human character and human 
 
 ^relations. 
 
RESPONSIBILITY. 47 
 
 In this connection a striking pamphlet by Dr. 
 Bernard Hollander, the brain specialist, entitled 
 " Crime and Responsibility/' claims the attention 
 of every thoughtful student of criminology. It is 
 a pamphlet issued by the Ethological Society, or 
 society for the systematic study of human char- 
 acter, of which Dr. Hollander is President. 
 
 Now to get at the root of responsibility for 
 criminal acts we must consider the mental make- 
 up of men. Thus there are first the primary 
 inherited feelings which find expression through 
 the brain organization. Whatever the ego, the 
 real self, may be, for all practical purposes of 
 social relationships the self is conditioned by the 
 material organism through which it acts. It is 
 somewhat appalling, indeed, to think how much 
 character depends on physiological accidents. 
 " Thus even a slight injury to the brain may 
 totally change the character of a person ; the 
 habitual use of drugs and alcohol may change the 
 disposition ; long illness may cause a person to 
 grow less sympathetic and gracious, and more 
 selfish ; moreover, a small patch of inflammation in 
 a man's brain may give him homicidal tendencies, j 
 while a little softening of a square inch of the i 
 cortex may make another a kleptomaniac." 
 
 Can the will overcome these adverse factors ? 
 Will-power may indeed be strengthened by 
 training, but it is to be borne in mind that it 
 " has no separate existence " of itself. "It is 
 only a capacity of being so powerfully attracted 
 by one motive that other motives become 
 insignificant/' " We do not make deliberate 
 choice ; all that our judgment can do is to weigh 
 the various attractions of several motives. The 
 most powerful must certainly prove victorious/' 
 
48 CRIME AND SOCIAL 
 
 How does this work out ? It follows, says Dr. 
 Hollander, in effect, that if we are not born 
 equally good or bad y nature, but that our 
 character depend on (i) our inherited primary 
 feelings, and (2) our inherited will-capacity, i.e. 
 capacity of being predominantly attracted by 
 this or that motive, then men have all degrees of 
 moral capacity as they have of intellectual, and 
 as you cannot expect or demand common sense 
 from the mentally deficient, so you cannot ask 
 for normal morality from the morally deficient. 
 
 The criminal is a morally deficient being. Is it 
 then reasonable to punish him for his deficiency, 
 for which deficiency he is not responsible ? 
 
 The only excuse for punishment would be 
 then that its terrorism supplies a powerful 
 element in the " sum total of actuating motives/' 
 In this sense it appears to have a practical 
 value to society and so justifies itself to many 
 persons. Punishment in this view becomes 
 merely an expedient deterrent. It is not here 
 justified on any ethical basis. 
 
 Dr. Hollander is rightly severe on that absurd 
 thing, the legal test of insanity, or knowing the 
 difference between right and wrong. ' The 
 lunatic/' he says, " knows the difference as well 
 as we do." It is exactly this which so often 
 " drives him to despair/' And then the idea of 
 a hard and fast line between the sane and the 
 insane has long since been given up by medical 
 men. " Persons are to be met with of all stages 
 between the normal and the profoundly insane/ 1 
 Large numbers of criminals are not admitted to be 
 insane when convicted, but their insanity is 
 proved later on. Thus, in England, one in every 
 hundred and twenty-six prisoners is certified 
 
RESPONSIBILITY. 49 
 
 insane, and one in eight comes of insane or 
 epileptic .parents. This, by the way, would of 
 itself justify the abolition of the death penalty if 
 our penology were based on scientific and moral 
 grounds. 
 
 But there are many stages before we come to 
 the certified insane. Every kind of weak- 
 mindedness supplies its quota of crime. We_go 
 on believing jnjgrisons and punishment for these 
 dereyj&^ 
 
 wfienthey commit crimes, whilst leaving them 
 beyonartne" age of sixteen, " to carry on their 
 existence until the catastrophe occurs which 
 could have been foreseen and ought to have been 
 prevented, and then, as a climax to our proceed- 
 ings, we hang them to prevent fujihj^trouble 
 and^forthepurgose^of wammgjuture evildoers/' 
 ThvTs, iflT Manchester elementary scfiools oFTorty 
 thousand children five hundred were found to be 
 feeble-minded. The Manchester authorities pro- 
 vide special schools for, and control these unhappy 
 children until the age of sixteen, and then they 
 are left to go their own gait. Thus does society 
 breed its troubles in good truth. 
 
 The other classes of criminals, the born criminal, ; 
 without moral sensibility, by-product of the slums, ! 
 of the dregs of civilization ; and the accidental! 
 criminal, product of adverse social and economic 1 
 circumstances of both of these types Dr. Hol- 
 lander has much to say that is wise and fruitful, 
 and his words are well illustrated by cases that 
 have come into his hands as a medical man. 
 
 The Mental Deficiency Bill, 1912, which was dropped by the 
 Government, contained some undesirable elements, but it 
 will be indeed a crying evil if a new effort is not quickly made 
 to deal with this question. 
 D 
 
50 CRIME AND SOCIAL 
 
 The born criminal or the professional criminal 
 is one " whose vocation is crime by a physical 
 and psychical proclivity, a man in whom the 
 selfish tendencies predominate over the moral 
 and religious sentiments and altruistic motives, 
 and whose intellectual powers, instead of inhibit- 
 ing such tendencies, are employed to further 
 them and to supply means for their gratification. 
 Moreover, such men are usually not influenced by 
 domestic affections, and much too insensible to 
 the esteem of others to be prevented from com- 
 mitting crimes/' No doubt true enough, and yet 
 on Dr. Hollander's own showing it is society 
 which' is responsible for the production of such 
 beings. Society then must find the remedy and 
 the cure, which one can hardly believe lies in the 
 direction of physiological operation such as some 
 so strongly advocate in these days. 
 
 Little need be said of the accidental criminal. 
 There is no way of getting rid of such but by 
 ceasing to produce him. " Economic and social 
 causes largely account for the production of this 
 class of criminals. The rush of life, the com- 
 petitive system, exciting pleasure, morbid litera- 
 ture, the wealth of the wealthy, the poverty of the 
 poor, the frightful overcrowding of the masses, 
 the continuous labour of married women, working 
 right up to the day of their delivery, and working 
 again within a week of their confinement ; all 
 these things help to call into life a race of beings 
 who have neither moral nor physical strength, 
 but also a large number of individuals who are 
 subject to strange whims, delusions and uncon- 
 trollable impulses/' 
 
 All these types of criminals, indeed, tell us the 
 same story of social responsibility and of the great 
 
RESPONSIBILITY. 51 
 
 need for study and experiment in penological 
 treatment. The conclusion of the pamphlet 
 quoted that " crime calls for intelligent and 
 scientific treatment " will be generally admitted by 
 all thoughtful people. Also very largely the 
 further conclusion that the public will in future 
 "look to the physician . . . for the differ- 
 ential diagnosis between the curable and the 
 incurable criminal." There is only one fault to 
 be found with this view and that is its ten- 
 dency to be too purely a materialistic, scientific 
 one. For besides physiology and experimental 
 psychology, besides economic and strictly medical 
 questions, are others bearing on crime and social 
 responsibility of psychic and spiritual import. 
 There is always a fear lest the medical criminolo- 
 gist, particularly the brain specialist, be led away 
 by the idea that " brain secretes dog's soul " and 
 man's too ; that in the consumingly interesting 
 study of the brain organisation and the bearing of 
 this study on the problem of crime, we may lose 
 sight of the being whose organ brain is ; may tend, 
 that is, to think too much in terms of material 
 values. The public will look to the physician, 
 true, but for the sake of a just and broadly human 
 line of action, it is to be hoped, not too exclusively 
 to the physician. For after all the physician is 
 not even an expert in the realm of ethics. And 
 each age develops and corrects its moral standards.. 
 A scientific and medical priesthood, exercising 
 large social and legal powers, is no more tolerable 
 than a theological one, We can but resolve to 
 live " im Ganzen, Guten, Schonen," and to apply 
 this resolve to the settling of the lines of social 
 action in their application to the criminal, con- 
 scious that here, indeed, we are very specially^our 
 Brother *s keeper. 
 
52 ON FLOGGING. 
 
 VI. ON FLOGGING. 
 
 THERE is no limit to human credulity, and when 
 an Archbishop allows a strong running current of 
 popular sentimentalism to so far overcome his 
 ordinary judgment that he can bring himself to 
 believe that an old abomination like the White 
 Slave traffic, with its roots deep planted in 
 social, sexual and economic causes, is going to be 
 dealt an effective blow by reversion to the dis- 
 credited barbarism of flogging, it is not to be 
 wondered at that common people, without 
 episcopal grace and understanding, should be 
 found repeating the same shallow dicta that 
 satisfied the House of Lords. 
 
 It has long been well known that certain men 
 and women follow the vile profession of souteneurs, 
 of procurers and procuresses of young girls for a 
 trade depending upon and widely supported by 
 the monied classes. 
 
 When we are reminded of this fact, which is 
 not in any sense a new fact, when at last an in- 
 different community is roused to the point of 
 dealing with this abomination, it would seem 
 that our wise senators can think of no more 
 intelligent proceeding than to raise the ready cry 
 of " flog the brutes/' meaning thereby the male 
 
ON FLOGGING. 53 
 
 agents of this trade, the useful tools of their 
 betters.* 
 
 And yet it must be obvious to His Grace and to 
 others, that, setting aside the moral wickedness 
 of these agents of rich men (and we do not 
 pretend to punish them for what they morally 
 deserve), if it should prove that some or most of 
 them are genuinely deterred by the danger of 
 flogging, the result must be to hand over the 
 dangerous part of the trade to the more difficult 
 partner to get at, the procuress, whom these 
 people who scorn the supposed sentimentalism of 
 the humanitarian cannot or will not flog. The 
 trade, therefore, seems likely to be driven into less 
 trackable paths than it now pursues. And thus 
 we suffer a reversion to old time and discarded 
 methods without any tangible gain. 
 
 The introduction of flogging into this Act 
 by a Liberal Home Secretary is a strange lapse 
 from the line of historic progress. It is to be 
 deeply regretted, for it creates a very ugly prece- 
 dent. If the man who encourages a woman to 
 lead an immoral life for gain, and to satisfy the 
 demands of his employers, is to be flogged, 
 naturally the ruffian who violently outrages a 
 young girl, and perhaps permanently destroys her 
 
 * " Is there not something of irony in the thought that men 
 of the class that is the cause of the social evil in its worst forms 
 have been voting with righteous indignation for the applica- 
 tion of the lash to the backs of men who run the trade, which, 
 but for this class, would not exist ? The bully under the 
 lash would be the vicarious victim of the class he caters for. 
 We flog him for supplying our demand. And, in so doing, we 
 seek to shift the responsibility for the gravest crime of the 
 society of which we are the ruling members from our own 
 complacent backs to his bleeding shoulders." MR. ALFRED 
 OLLIVANT in The Nation, December 28th, 1912. 
 
54 ON FLOGGING. 
 
 reason, or those who assault little children, or 
 commit other crimes of deep degradation should 
 also be flogged. Indeed, the demand for flogging 
 has become an epidemic, and is called for as a cure 
 for a dozen different crimes by Quarter Sessions, 
 by magistrates, by newspapers, and by private 
 persons.* Now the Prime Minister, Mr. Asquith, 
 has more than once condemned flogging. It is to 
 be regretted that on this occasion he had not the 
 courage to override his sentimentally-minded 
 colleagues, and notably the Home Secretary. 
 
 The opponents of flogging are of course supposed 
 to be tenderly concerned for the criminal liable 
 to be flogged. Thus the Bishop of St. Albans, in 
 the debate on the White Slave Bill, had the 
 courage to express his preference for the criminal's 
 victim : " His sympathies were with the victims 
 of the crimes against which the clause was di- 
 rected, and not with those who might come under 
 the lash." The Bishop, no doubt, felt the rebuke 
 to humanitarian sentiment to be well deserved. 
 At any rate the assembled peerage duly cheered 
 his statement. f This, however, only goes to show 
 
 * " The regrettable reversion to the barbarous custom of 
 
 flogging was due entirely to the excitement and indignation 
 
 aroused by a particularly odious crime which carried people 
 
 off their feet. At the same time the effect of that wave of 
 
 insane feeling had been to arouse vindictive passions in all 
 
 kinds of people who were advocating in the newspapers the 
 
 extension of the practice of flogging in every direction. The 
 
 ' floggers dozen ' of ' criminals ' who, in the opinion of 
 
 these individuals, called for correction with the lash, included 
 
 burglars (armed or unarmed), foreigners who insult English 
 
 'girls, daughters who disobey their parents, parents who 
 
 : neglect their children, suffragette prisoners who refuse their 
 
 food, pit-boys who ill-treat pit ponies, strikers and poachers,. 
 
 ; motorists who drive recklessly, pedestrians who throw 
 
 it stones at motorists, drunkards, and Mormon elders." 
 
 H. S. SALT. 
 
OAT FLOGGING. 55 
 
 that the Bishops, like most of the Lords Temporal, 
 have no more considered the working out of this 
 matter than they had that of hanging, when, in 
 1832, the then Lord Ellenborough so graphically 
 beheld himself standing on his head if the death 
 penalty for stealing were to be abolished. 
 
 I have endeavoured to show on another page 
 that the supposed deserts of a prisoner constitute 
 no basis upon which an intelligent community can 
 build up its penal code, and that revenge of any 
 kind is out of date. To reformers of the criminal 
 law, flogging as a penal method presents at least 
 two questions, viz. is it a proved deterrent, and, if 
 so, does its deterrent nature outweigh the grave 
 social and moral reactions which its use by society 
 necessarily involve ? 
 
 Now, in a general way its deterrent quality is a 
 question that is simply begged. The old super- 
 stition, still so firmly rooted, accepts as an axiom 
 that violence must deter, though every rational 
 factor in life points in the opposite direction and 
 society has improved exactly as the old brutali- 
 ties of scourging, branding, gibbeting, etc., have 
 disappeared. 
 
 Moreover, as Mr. Asquith has pointed out, its 
 uncertainty destroys its deterrent force (as, indeed, 
 is the case with all such punishments). 
 
 f " The truth, of course, is that the objection to flogging *s 
 based not upon mere personal pity, either for the aggressor 
 or for the aggrieved, but upon broad public grounds of 
 morality and experience. To say that those who condemn 
 the lash are " in sympathy with the criminal " is not only 
 insulting, but ridiculous. The same might as truly have been 
 said of those who secured the abolition of bygone instruments 
 of torture the stake, the rack, or the thumbscrew. Yet who 
 would now have the effrontery to say it ? It is only of con- 
 temporary reformers that these insolent things are said." 
 HENRY S. SALT : Fallacies of Flagellants. 
 
56 ON FLOGGING. 
 
 " As to the deterrent effect of flogging, it is im- 
 possible to look upon a punishment as really 
 deterrent, if the question whether it will be 
 inflicted in any particular case is no more a 
 certainty than a chance in a lottery. The 
 majority of judges never award this punishment 
 at all."" 
 
 So also Lord Chancellor Herschell : " It was of 
 all punishments the most uncertain, seeing that 
 it was left to the discretion of the judges. There 
 were some judges who would always flog. There 
 were some judges who would never flog/' 
 
 In detail it can be shown to fail as a deterrent. 
 The following may be quoted as an example 
 to enforce this point. At the Glamorganshire 
 Assizes held in March, 1908, there were a number 
 of cases of robbery with violence, and a number of 
 flogging sentences were passed. So far from " an 
 absolute stop " being put to such crimes, there 
 were no fewer than eighteen cases of the same kind 
 at the summer assizes of the same year, and sixteen 
 at the following winter assizes a fact which was 
 deplored in the local press as a proof that the " cat " 
 had failed. " The desired result/' said the South 
 Wales Daily News, '^ does not seem to have been 
 produced, and now the judges are substituting 
 long terms of penal servitude/' 
 
 In like manner the Western Mail, in an article 
 headed, " A Black Assize," admitted that " the 
 fact that there are sixteen cases pf robbery with 
 violence will no doubt be quoted by opponents of 
 the ' cat ' to prove that flogging has no lasting 
 benefit/' 
 
 Again, " at the Assizes which were held at Cardiff 
 exactly twelve months after Mr. Justice Lawrence 
 had ordered the floggings above referred to, 
 
ON FLOGGING. 57 
 
 a prisoner was charged with the same sort 
 of offence, and it was stated that he had pre- 
 viously received twelve lashes with the cat for 
 robbery with violence " Western Mail* 
 
 But even if the evidence lent itself to precisely 
 the opposite conclusion, if it could be shown that 
 nothing deterred like the bloodshed and brutality 
 of a flogging with the " cat/' it would not affect 
 the humanitarian objection, which, as I have 
 previously pointed out, is not directed mainly to 
 the ineffectiveness of flogging in the immediate 
 suppression of this or that criminal or class 
 of criminals, but to the deleterious reaction 
 upon society of legal violence, to the fostering of 
 viciousness and criminality which such violence 
 engenders. From this point of view there is 
 nothing to be said in favour of flogging. For, 
 in the first place, if the evil of such violence is 
 not obvious to most people, it is perhaps because 
 they are not called upon to perform the act them- 
 selves. For it is a truism that many brutalities 
 would speedily disappear if those who profit by 
 them, or think they profit, had themselves to 
 carry them out.f There would be a quick end 
 to the unspeakable sufferings of the fur seal if 
 every lady who wears a sealskin coat had to take 
 part in, or even to witness the manner in which 
 the fur is obtained. The oversea cattle trade 
 under present conditions, pate de foie gras and the 
 miserable Strasbourg geese would be no more if 
 each club gentleman had to serve a term in the 
 
 * The Case against Corporal Punishment (Humanitarian 
 League). 
 
 f Unless, of course, they were kept to the work. Habit 
 accustoms men to any and every barbarity. 
 
58 ON FLOGGING. 
 
 fattening sheds, or as a transatlantic cattleman. 
 And Bishops would no longer advocate flogging if, 
 as has been unkindly suggested, a Flogging 
 School for young Bishops were instituted and 
 every Bishop had to draw blood, and satisfy the 
 doctor and other prison authorities in a per- 
 formance at the triangle, on the bare back of a 
 prisoner. But instead of doing these things 
 ourselves, we discuss and approve them in Par- 
 liament and the Club, and, in virtue of our econ- 
 omic power direct a lower class of wage-earning 
 seal fishers, cattlemen, butchers, policemen and 
 warders to do them for us. And they would 
 cease, not merely because the horror of these 
 things in the actual would offend the cultivated 
 sensibilities of ladies, clubmen and bishops, but 
 because these being educated in some sort, and 
 not driven to the work by economic necessity, 
 would quickly realize that such occupations 
 degrade and debase the mind ; that to engage 
 in them constantly, persistently and for payment 
 involves of necessity a coarsening of fibre, a 
 hardening of sensibility, an increasing indifference 
 to brutality and bloodshed.* 
 
 But there is more than this. The standard of 
 a people's respect for life and for men and 
 women may, in every land, be measured by the 
 standard which is established in the laws and 
 customs of the land. The more humane and 
 intelligent the laws, the more humane and in- 
 telligent do the people become. It is glibly said 
 that you cannot make men moral by Act of 
 
 * One need not take seriously the professed willingness of 
 the Archbishop of Canterbury to engage in the occupation of 
 flogging. Such work is not assigned to Archbishops in 
 England, but to ill-paid warders. 
 
ON FLGGGIN'' :'. 59 
 
 Parliament. In a detailed, individual sense there 
 may be truth in this dictum, but in a social sense 
 it is not so. The men of light, the small minority, 
 establish a national standard when they secure a 
 new and enlightened law. The people,' if their 
 conscience, however dimly, sanction the law, 
 gradually respond to it, and a higher social level 
 is reached. Thus, when our grandfathers in 1822 
 were young men, Richard Martin obtained by 
 persistent zeal the first law in the world that gave 
 
 Protection to the lower animals. For years he 
 night against mountains of ridicule, contempt, 
 and callous indifference. But the Act 3, Geo. IV. 
 Cap. 71 created a standard, and we have improved 
 upon it gradually, until public opinion to-day is 
 considerably ahead of the simple demands of 
 " Humanity Dick " and would not tolerate the 
 cruelties of Martin's day. 
 
 And the reverse is equally true. " Cruelty in 
 the law has an inevitable tendency to produce 
 cruelty in the people/' A reactionary penal law 
 cannot be established without producing a back- 
 ward and downward standardization, without 
 aiming a deadly blow at the civilized level the 
 nation has reached to. 
 
 It is for this reason that humanitarians 
 resolutely oppose these reversions to discarded 
 barbarisms, resolutely fight these hangings and 
 floggings and all the paraphernalia of violent 
 physical punishment, certain that men and 
 societies can only advance to humanity and the 
 higher civilization in proportion as they devote 
 themselves to the building up of a temperate, 
 restrained and humane organization of civic life. 
 Certain, also, that the path of reform in criminal 
 law is that which seeks the cure and restoration, 
 
60 ON FLOGGING. 
 
 and not the mere punishment, of the criminal. 
 For this view rests upon the wider consciousness 
 of organic unity, which is alike the teaching of 
 physical science and the burden of social ethics, 
 and which should impress upon each of us, in this 
 matter of crime, as in so many other matters, 
 the profound truth of the lesson " This, too, is 
 thy deed also, for thou and thy brother are one." 
 
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