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 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 INTRODUCTORY REPORT 
 
 TO THE 
 
 CODE OF PRISON DISCIPLINE: 
 
 EXPLANATORY OF THE PRINCIPLES ON WHICH 
 THE CODE IS FOUNDED. 
 
 BEING PART OF THE 
 
 SYSTEM OF PENAL LAW, 
 
 PREPARED FOR THE 
 
 STATE OF LOUISIANA. 
 
 BY EDWARD LIVINGSTON. 
 
 in 
 
 LONDON : 
 
 JOHN MILLER, 40 PALL MALL. 
 
 1827.
 
 
 r 
 
 1**7 
 
 ERRATA. 
 
 s 1. line 25. for legislature, read legislator. 
 
 9. " 6. for invasion, read invasions. 
 
 ib. " 14 & 16. for disease, read desire. 
 
 10. " 14. for plan, read place. 
 
 ib. " 27. for incapable of being, read cannot always be 
 
 ib. " 5. for wa.s, read were. 
 
 12. " 6. for resumes its, read resume their. 
 
 18. " 2. after as, dele the. 
 
 19. " 19. for that, read the former. 
 
 28. " 3. for fo England, read to extend. 
 
 33. Strike out in the note the words, " a much greater disproportion ex* 
 
 ists between the commitments and conversions in Great Britain, 
 
 but."
 
 '1. 
 »> 
 
 PREFATORY NOTE 
 
 BY THE EDITORS. 
 
 The following pages form the introduction to the Code of 
 Prison Discipline, being the concluding part of a system 
 of penal law, prepared by Mr. Livingston, for the State of 
 Louisiana, in pursuance of a law of that state; under which he 
 was appointed to the novel and highly honourable task which 
 he has just concluded for the second time; after having, about 
 two years ago, lost by an accidental fire, his first manuscript 
 and all his notes. 
 
 The whole system, (consisting of a Code of crimes and pun- 
 ishments, a Code of procedure, a book of Definitions, and a 
 Code of Prison Discipline,) has been presented for the consi- 
 deration of the Legislature, and copies have been distributed 
 by the author, with the laudable view of obtaining suggestions 
 for the improvement of his plan. But this circulation being 
 necessarily very limited; the Editors have been induced, with- 
 out any view to profit, to offer this edition to the public, from 
 a persuasion, that the views developed in the introduction, 
 contained matter that deserved the serious attention of their 
 fellow citizens, more particularly as the review of the Penal 
 Code of this State, will occupy the attention of the Legisla- 
 ture at the next session. 
 
 Should this introduction receive the public patronage, they 
 will publish the Code of Prison Discipline, as the part that in- 
 volves the deepest interest, and on the Efficacy of which the 
 whole system seems to rest. The introductory report to the 
 whole system, and the other codes of which it is composed, 
 have excited some attention in different parts of Europe; where 
 several Editions in different languages have been published ; 
 but as the work is of considerable magnitude, the Editors can- 
 not yet pledge themselves to offer an Edition of it to the public 
 Philadelphia, July 7, 1827.
 
 INTRODUCTORY REPORT 
 
 TO THE CODE OF 
 
 REFORM AND PRISON DISCIPLINE. 
 
 In~ offering to the Legislature a system of penal law, the 
 principal sanction of which is imprisonment, it is scarcely ne- 
 cessary to remark, that its whole efficacy must depend on the 
 manner in which confinement is to be inflicted as a punish- 
 ment, or used as a means of detention ; in other words, on the 
 wisdom of the code of prison discipline. In preparing the 
 plan now submitted, I kept in view, as the great objects to be 
 attained — restraint, example, and reformation. To discover 
 what species of seclusion would best produce these ends, ri- 
 gidly to direct every privation necessary to attain them, but 
 to inflict no evil greater than was required to produce these 
 consequences, would seem at first view a comparatively easy 
 task ; but the selection of proper means, and the details re- 
 quired for their application, presented difficulties in the execu- 
 tion only to be overcome by the closest attention to facts, and 
 the most cautious calculation of consequences. A statement of 
 these facts, and an exposition of the consequences drawn from 
 them, will enable the House better to understand and decide 
 on the plan which I have the honour to propose. 
 
 At the time when the penal law of Great Britain (still liable 
 to the reproach of unnecessary severity in its enactments, and 
 barbarity in its executions,) had received none of those im- 
 provements which the true principles of jurisprudence have 
 since produced, the benevolent heart and enlightened mind of 
 the Legislature of Pennsylvania, suggested the substitution of 
 solitary imprisonment and labour for the punishment of death. 
 The beneficial effects of this change were felt until they were 
 
 1
 
 4 INTRODUCTION. 
 
 counteracted by the intolerant and sanguinary system of the 
 common law of England, enforced by the paramount authority 
 of the mother country. But no sooner did independence con- 
 fer the power of consulting the public good, than the People 
 of Pennsylvania made the reformation of the penal code a con- 
 stitutional obligation on their representatives ; and, amidst the 
 confusion produced by foreign invasion and civil discord in 
 the Revolutionary war, a society worthy of the city of " bro- 
 therly love'" was formed for the relief of distressed prisoners. 
 With persevering benevolence, they not only relieved the vic- 
 tims of the inhuman system that then prevailed, but, by un- 
 ceasing appeals to true principles, induced the Legislature of 
 that State to begin the great reform. In all but two or three 
 cases, the punishment of death was abolished : labour was sub- 
 stituted for loss of life and stripes ; but, contrary to the opin- 
 ion early expressed by the society in favour of solitary labour, 
 that on the public works was adopted. The error was a radical 
 one : debasement, corruption, and an immediate repetition cf 
 crime, were the consequences ; and the failure of this experi- 
 ment with any but a wise and reflecting people, might have 
 been fatal to the system. But, happily for Pennsylvania, and 
 perhaps for the world, she had enlightened men to frame her 
 penal laws ; and happier still, she had a class of citizens ad- 
 mirably calculated to execute them with the zeal of enthusi- 
 asm. The founder of that State, and his first associates, belong- 
 ed to a sect which fitted them, by its principles, and by the 
 habits, and pursuits, which it created and prescribed, to be the 
 agents of a reform in jurisprudence similar to that which they 
 adopted, and, perhaps, carried, to excess, in religion. Their 
 descendants, with less of that enthusiasm which, in their an- 
 cestors, was exalted by persecution, had all the active benevo- 
 lence and Christian charity necessary to prompt, and the per- 
 severance and unwearied industry to support their exertions. 
 Abstracted by their tenets from the pleasures which occupy so 
 large a portion of life among other sects ; equally excluded 
 from other pursuits in which so many find occupation ; freed 
 from the vexations of mutual litigation, by submitting every 
 difference to the umpirage of the elders, and from the tyranny
 
 INTRODUCTION". 
 
 of fashion by an independent contempt for its rules : the mod- 
 ern quakers devote all that time which others waste in dissipa- 
 tion, or employ in intriguing for public employment, to the 
 direction of charitable institutions, and that surplus wealth 
 which others dissipate in frivolous pursuits, to the cause of hu- 
 manity. In every society for promoting education, for in- 
 structing or supporting the poor, for relieving the distresses of 
 prisoners, for suppressing vice and immorality, they are active 
 and zealous members ; and they indemnify themselves for the 
 loss of the honours and pleasures of the world by the highest 
 of all honours, the purest of all pleasures, that of doing good. 
 To these men, and others who participated in their princi- 
 ples, was committed the task of uniting reformation and pun- 
 ishment, when seclusion was substituted for the public labour 
 to which the convicts had before been exposed. The most 
 encouraging results justified the change in the law, and the se- 
 lection of persons to whom its execution was committed ; and 
 from the year 1790, when it took place, until 1793, we have 
 the official attestation of one of the inspectors,* that, out of 
 two hundred convicts who had been pardoned, only four were 
 returned on a second conviction ; that only two cases of burgla- 
 ry, and not one of privately stealing from the person, had oc- 
 curred ; that the streets and roads were freed from robbers, 
 and that in all the prisons for the populous city and county of 
 Philadelphia, immediately before the sitting of the Court, only 
 four persons were in custody for trial. This last is a striking- 
 fact. The city and county of Philadelphia, at that time, con- 
 tained upwards of sixty thousand inhabitants, and, prior to 
 that time, more than thirty had been condemned at a Session, 
 a number which supposes at least fifty commit ments ; so that, 
 in the short space of two years, the effect of the system was 
 the entire suppression of some crimes, and the reduction of 
 others in the proportion of ten to one, in the place where the 
 example might be supposed to have had the greatest effect. 
 
 A member of the Society of Friends, who has rendered the name of 
 Low.vdks as celebrated for active, enlightened benevolence, as a late lament- 
 ed statesman has since dorte for eloquence, patriotism, and integrity.
 
 6 INTRODUCTION*. 
 
 The operation of the system in the whole of the State, was 
 nearly as encouraging. Although its population was increasing 
 in a very rapid ratio, yet conviction decreased from one hun- 
 dred and twenty-five, in the year 1789, to the respective num- 
 bers of one hundred and nine, seventy, sixty-three, forty-five,* 
 in the four succeeding years. Thus we find that, although the 
 population of the State was increasing in a ratio of four and a 
 half per cent, a year, offencest had decreased in the propor- 
 tion of forty-five to one hundred and twenty -five, or nearly 
 two thirds less ; and in the last year I have mentioned, there 
 were no convictions for one half of the crimes that had figured 
 on the preceding calendars. So remarkable a diminution of 
 crime in a regular decreasing series, is a fact worthy our most 
 profound attention, when we are considering the effect of this 
 species of punishment. Nothing can develop the true princi- 
 ples of legislation on this subject more clearly than the history 
 of the reform in Pennsylvania in all its stages. In 1786, we 
 find that the vicious system of labour in the public works was 
 established. Under it, in the three years of its operation, and 
 the first year after its appeal, but before the effects of the sys- 
 tem could cease, the average number of convictions in each 
 year was one hundred and nine ; in 1791, it decreased under 
 the new system to seventy-six ; in 1792, to sixty-three ; and in 
 1793, to forty-five: all this while the population of the State, 
 and (what is more worthy to be noted) of the city was rapidly 
 increasing. This was the lowest point of depression : from 
 that time the increase has been in a more rapid ratio than the 
 diminution : for the first four years afterwards, the average was 
 one hundred and nineteen, and it has gradually progressed 
 until the average of the last twelve years is three hundred and 
 eleven ; that is, within a fraction of eight times as many as it 
 was in 1793 ; but the population of the State in that time had 
 very little more than doubled, J so that crime has increased 
 in proportion to the population nearly as eight is to two. Most 
 
 * Vaux's Notices. f Seybert's Statistics. 
 
 i Four hundred and ninety-five thousand one hundred and eighty-five, in 1793 
 One million forty-nine thousand four hundred and ftft.y-eight. in 1820,
 
 INTKODUCTIO '< 
 
 fortunately for the cause of truth, humanity, and wise legisla- 
 tion, the cause of this ebb and flow of crime is not difficult to 
 discover ; and when pointed out, it will be more persuasive to 
 show that there is a check that may be effectually applied to 
 the increase of offences than the most ingenious argument that 
 could be suggested. 
 
 In the three years previous to the year 1790, when Phila- 
 delphia prison was first used for the purpose of inflicting pun- 
 ishment by solitary confinement, three hundred and twenty- 
 eight convicts had been confined. Of these, about two-thirds 
 were committed for short terms, and others were discharged 
 by pardon; so that at the commencement of the year 1790, 
 not more than about two hundred remained. The accommo- 
 dations of the prison afforded the means of separation for this 
 small number, and the humane zeal of the inspectors, quicken- 
 ed by the natural desire to give efficacy to the plan which they 
 had themselves formed, urged on the labour and superintended 
 the instruction of the convicts. In that year, the first of the 
 experiment, but before its result could be known, one hun- 
 dred and nine convictions took place. In the next, its benefi- 
 cent effects began to be felt; the convictions were reduced to 
 seventy-eight, and in the two successive years, to sixty-three 
 and forty-five. But in the meantime * the prison began to be 
 crowded, solitary labour was necessarily abandoned, even 
 classification became impossible ; the same prison serving for 
 vagrants, fugitive apprentices,! and those committed for trial ; 
 a relaxation of discipline was the natural consequence of the 
 indiscriminate association, and the increase of convictions, in 
 every succeeding term of four years bears an exact proportion 
 to the increased numbers in the prison. This double result of 
 a rapid and before unheard-of decrease while the convicts were 
 separated and employed, and an increase almost in the same 
 ratio when they were suffered to associate, seems to solve the 
 great problem of penal jurisprudence, and points to seclusion 
 and labour as an effectual remedy for the prevention of crime : 
 
 * No provision had been made for the increased number of prisoners, which, 
 of all descriptions, amounted in 1793 to the average number 450. 
 + Petition .of th<i Society for PobKo Prions. 1*01 -
 
 •6 i vl Ku'i)L<: r j'fON: 
 
 for these effects were produced without any change in the state 
 of society at the two periods, that could be favourable to such 
 results ; on the contrary, an increase of population while crimes 
 were decreasing, and the same increase, but only of one half, 
 in the numbers of the people during the other period, when 
 crimes increased fourfold. This practical result, so decisive 
 of the truth of the theory, founded on a consideration of hu- 
 man nature, with other corroborating facts, has confirmed me 
 in the design not only of persevering in my first recommenda- 
 tion of imprisonment, solitude, and labour, in different de- 
 grees, and under different modifications, as the principal sanc- 
 tions of the code, but it has become the basis of my whole 
 system of prison discipline; and from the well attested fact 
 that a plan, by no means perfect, persevered in for only four 
 years, banished some crimes, and rapidly reduced the number 
 of others nearly two-thirds, I draw the cheering conclusion 
 that, by giving to the system the improvements of which it is 
 susceptible, the sum of human happiness may be increased b}^ 
 the repression of crimes and of the evils which result both 
 from their commission and punishment. 
 
 My position is, that imprisonment, with seclusion and la- 
 bour, as a punishment, will diminish the offences for which it 
 is inflicted ; but that imprisonment without seclusion will in- 
 crease them. What will be the effect of solitary confinement 
 without labour, remains to be tried. The Pennsylvania expe- 
 riment proves conclusively, that while the numbers were not 
 too great to admit of seclusion, offences diminished ; and when 
 it was no longer practicable, they increased. In all the other 
 States a similar result has been observed, during the first years. 
 When there was room for classification, the most sanguine 
 hopes of humanity were surpassed by the effect* But with 
 the promiscuous intercourse of the convicts, offences increased 
 both in number and atrocity. This great truth, then, is sup- 
 ported in both its parts by experiment, the most conclusive of 
 all proof, when it has been so often repeated, under different 
 
 * See report to the Senate of New York, and the reports of all the State pri- 
 sons in the different State*.
 
 INTRODUCTION. 9 
 
 circumstances, as (o show that the uniform result is produced 
 by the same cause, and when it confirms a theory to which no 
 abstract objection can be conclusively urged. But here the 
 theory is emphatically one of that kind. Of all the crimes in 
 the catalogue of human depravity, four-fifths are, in different 
 forms, invasion of private property ; and the motive for com- 
 mitting them is the desire of obtaining, without labour, the 
 enjoyments which property brings. The natural corrective is 
 to deprive the offender of the gratifications he expects, and to 
 convince him that they can be acquired by the exertions of 
 industry. The remaining proportion of offences are such as 
 arise from the indulgence of the bad passions, and for those 
 also solitude and employment are the best correctives. But 
 whatever corrects the disease or the passion that prompts the 
 offence, acts in the double capacity, first of punishment, until 
 the disease is repressed, and afterwards, when that is effected., 
 of reformation. As an example, too, it is infinitely more effi- 
 cacious than any other penalty. When it is seen that offences 
 which were committed to avoid labour and to increase the en- 
 joyments of society, lead only to solitude and labour, and that 
 the passions which caused the more serious crimes, are to be 
 kept under the rigid restraint of abstinence and reflection, in 
 the fearful loneliness of a cell ; when these examples are per- 
 manent, and by a rigid administration of justice believed to be 
 inevitable, who that studies human nature can doubt the effect? 
 Therefore, the experiments of Pennsylvania and of the other 
 States, in the first years of their operation, as well as their 
 subsequent failure, have but confirmed a theory true, because 
 it was drawn from the workings of the human mind. They 
 succeeded at first exactly in the proportion to the strictness of 
 the seclusion ; they failed precisely in the ratio of its relaxa- 
 tion. 
 
 Solitude and Labour, then, are the two great remedies. 
 How are they to be employed ? Is the confinement to be a 
 rigid, unbroken solitude, or only a seclusion from the corrup- 
 tion of evil counsel and example? Is it to be permanent for 
 the whole term of the sentence, or to be mitigated by proofs 
 of Industry and amendment ? Is the labour to he forced or
 
 IU INTRODUCTION. 
 
 voluntary, and is its principal object pecuniary profit to the 
 State or the means of honest support to the convict? These 
 are the great questions to be decided before we enter on the 
 consideration of a multitude of subordinate details. 
 
 When imprisonment and labour was substituted for corporal 
 punishment, the evils of promiscuous association became appa- 
 rent. The separation most obviously required was that of the 
 sexes, and this seems to have been universally introduced. 
 But it required little observation or knowledge of human na- 
 ture to discover that something more was necessary ; that, as 
 a place of punishment, a penitentiary would soon lose its ter- 
 rors, if the depraved inhabitants were suffered to enjoy the so- 
 ciety within, which they had always preferred when at large ; 
 and that, instead of a plan of reformation, it must become the 
 best institution that could be devised for instruction in all the 
 mysteries of vice and crime, if the professors of guilt are suf- 
 fered to make disciples of those who may be comparatively 
 ignorant. To remedy this evil, what is called classification was 
 resorted to ; first the young were separated from the old, then 
 the analogous division was made between the novice and the 
 practised offender; further subdivisions were found indispens- 
 able, in proportion as it was discovered that in each of these 
 classes would be found individuals of different degrees of de- 
 pravity, and, of course, corrupters, and those ready to receive 
 their lessons. Accordingly, classes were multiplied, until, in 
 some prisons in England we find them amounting to fifteen or 
 more. But, all this while, the evident truths seemed not to 
 have had proper force : first, that moral guilt is incapable of 
 being discovered, and, if discovered, so nicely appreciated as 
 to assign to each one infected with it, his comparative place in 
 the scale ; and that if it could be so discovered it would be 
 found that no two would be found contaminated in the same 
 degree. Secondly, that if these difficulties could be surmount- 
 ed, and a class could be formed of individuals who had advan- 
 ced exactly to the same point, not only of offence, but of mo- 
 ral depravity, still their association would produce a further 
 progress in both, just as sparks produce a flame when brought 
 together, which, separated, would be extinguished and die.
 
 INTRODUCTION. i 1 
 
 It is not in human nature for the mind to be stationary ; it 
 must progress in virtue or in vice : nothing promotes this pro- 
 gress so much as the emulation created by society ; and from 
 the nature of the society will it receive its direction. Every 
 association of convicts, then, that can be formed, will in a 
 greater or less degree pervert, but will never reform, those of 
 which it is composed : and we are brought to the irresistible 
 conclusion that classification once admitted to be useful, it is so 
 in an inverse proportion to the numbers of which each class is 
 composed ; and is not perfect until we come to the point a's 
 which it loses its name and nature, in the complete separation 
 of individuals. We come, then, to the conclusion that each 
 convict is to be separated from his fellows. But is he to be 
 debarred from all other society ? In discussing this question 
 we must always have before our eyes the ends we propose to 
 attain by the discipline we inflict — punishment and reforma- 
 tion. So much punishment as is necessary to deter others 
 from committing the crime, and the offender from repeating 
 it ; every alleviation, not inconsistent with those objects, that 
 will cause the culprit gradually to prefer a life of honest indus- 
 try, not from the fear of punishment, but from a conviction of 
 its utility. That system of prison discipline will make the 
 nearest approach to perfection that shall best attain these ob- 
 jects. In order to judge in what degree the plan I propose is 
 entitled to this distinction, it will be necessary to examine 
 other systems, and a discussion of their defects will enable 
 us to discover how far that which is proposed as a substitute 
 avoids them. 
 
 Imprisonment and labour have been adopted as a punishment 
 in fourteen of the twenty-four Slates. In none of these has 
 there been, until very lately, any individual seclusion, except 
 for breaches of prison discipline, and, during different periods', 
 for the more atrocious offences: the consequences of this radi 
 cal fault were such as might have been expected — an increase 
 rather than a diminution of crime; and the prodigal, indis- 
 creet, and ruinous exercise of the pardoning power, combined 
 to render abortive the best experiment ever made for the sup- 
 pression of vice. The people who were taxed for the support
 
 12 lNTKom/CTlUjN. 
 
 ol these institutions, saw in them only the nurseries of crime, 
 and were naturally desirous of throwing off the burthen ; and 
 it was made, in one important State, a serious question whe- 
 ther they should not resort to sanguinary and infamous pun- 
 ishments. The calm reasoning and spirit of investigation, 
 which sooner or later resumes its place in the councils of our 
 republics, soon discovered that the experiment had not been 
 fairly tried ; the cause of its failure became apparent ; and all 
 agreed that imprisonment without separation would never serve 
 either for punishment or reform. Two different systems were 
 proposed to remedy the evil ; one is in the course of experi- 
 ment ; the other has not yet been examined, but preparations 
 are nearly completed for carrying it into effect on a most ex- 
 tensive scale, and in a degree that must completely test its uti- 
 lity. In New York there are two penitentiaries, and a third 
 is now constructing : one of them, in the city, is, from its con- 
 struction, and the numbers confined in it, necessarily conduct- 
 ed on the old vicious plan, which is to be abandoned as soon as 
 the third prison is finished ; the other at Auburn, a village in 
 the interior of the State, is the model for the new penitentiary, 
 and by the partisans of the system on which it is managed, is 
 declared to be one that ought to serve as a pattern for all oth- 
 ers. That system is briefly this : — absolute solitude during the 
 night; joint labour during the day, but without any communi- 
 cation with each other by word or sign ; meals taken at the 
 same table, but so disposed as not to see the faces of those op- 
 posite to them ; religious instruction on Sundays, received in a 
 body ; and a Sunday school in the same manner, twice a day ; 
 both in church and school the same prohibition of intercourse ; 
 a full diet of meat, bread, and vegetables ; comfortable bed- 
 ding, in very narrow but well-aired, well-warmed cells, and 
 the utmost attention to cleanliness in every department of the 
 prison ; visiters are admitted, but without permission to speak 
 to the convicts — who on their discharge receive a sum not ex- 
 ceeding three dollars, without any relation to their earnings ; 
 their work is uninterrupted during the day, except by their 
 meals, and is generally contracted for by mechanics, who find 
 the materials. This enumeration is not one of what is requi-
 
 INTRODUCTION. 13 
 
 red, but what is actually done. And the strictness with which 
 these rules have been enforced is such, that it is asserted that, 
 among thirty or forty, working together for years in the same 
 shop, no two of them know each others names. Mr. Elam 
 Lynds, a gentleman who formerly served in the Army, has 
 the credit of introducing this order — it was begun with his ap- 
 pointment as keeper of the Auburn prison, and he has execu- 
 ted it with most astonishing success in superintending the 
 building of the new prison, at Sing Sing, where he has had 
 two hundred convicts employed, with no other place of con- 
 finement than a wooden shed, in which they slept, and with 
 only eight or ten under keepers and guards, and yet the same 
 industry, order, and obedience, was preserved as there was 
 within the walls of the prison. Nothing can be more impo- 
 sing than the view of a prison conducted on these principles. 
 Order, obedience, sobriety, industry, religious and literary in- 
 struction, and solitary reflection, all seem to pfomise beneficial 
 effects on the convict, while the important points of secure de- 
 tention and economy are attained for the State. Yet with all 
 these advantages I cannot offer this system for adoption ; and 
 my chief objection arises from the means employed to procure 
 them. It is by the lash,* put into the hands of the keeper, 
 to be used at discretion, and by a power strangely I think de- 
 clared to be legally vested in the turnkey. t The objections to 
 this system are obvious. And first, the anomaly presents itself, 
 not to call it by a harsher name, of permitting a punishment 
 to be inflicted at the discretion not only of a man at the head 
 of the institution, but by his under officers, at their discretion, 
 and that too for disrespect, or the vague charge of disobedi- 
 
 * " It has already appeared that, as a mode of punishment, and as the means 
 of enforcing prison discipline, in this prison, stripes are generally resorted to as 
 a punishment, in the presence of the inspectors; and to enforce obedience, by the 
 keepers, at all limes when necessary. These stripes are required by the present 
 agent to be inflicted by the keeper with a raw hide whip, and applied to the back, 
 &c." — Power's Account of the State Prison at Auburn, p. 60. 
 
 "At Auburn stripes are almost the only mode of punishment." — Report of 
 Massachusetts Society. 
 
 \ Decision of the Court in the case of The People vs. An Under Keeper at 
 \urnii n.—Pmoer's Atcov >' - i>. C2
 
 14 INTKODUCTION. 
 
 ence, which punishment the law has abolished as too ignomini- 
 ous, unequal, and cruel, to be inflicted by the court for danger- 
 ous crimes. The discretion is limited, say the Court in their 
 opinion, under which it is considered to be legal, to the en- 
 forcement of obedience for its object, and in degree to the pun- 
 ishment necessary to secure it. Can any thing be more vague ? 
 Obedience to what ? Lawful commands is the answer ; but it 
 is unlawful to break any, the minutest regulation of the prison ; 
 it is unlawful to deny any breach of them when the convict is 
 accused by the turnkey ; therefore, if a convict speak to his 
 neighbour he is whipped, and if he should deny having done 
 so he is whipped. The very case in which the stripes were 
 declared lawful, was one in which they were severely inflicted 
 to make the convict confess, and when he had confessed, they 
 ceased. Here is every character of the torture, applied by the 
 lowest officer in the prison — and this by the Court of the State 
 of New York was declared to be lawful, if the jury should 
 think that the chastisement was not greater in degree than was 
 necessary to enforce obedience. Now the obedience required 
 in this case was the confession ; and it follows, according to 
 the decision of the court, that such force as was necessary to 
 this end was justifiable ; in other words, that torture by inflic- 
 tion of stripes might legally be used in the State of New York, 
 by a turnkey, against a convict, according to the common law, 
 although the Legislature has enacted, " That if any prisoner 
 in either of the States prisons shall refuse to comply with the 
 rules, &c. it shall be lawful, and is declared to be the duty of 
 the keepers, under the direction of the inspectors, to inflict 
 corporal punishment by whipping, not to exceed thirty-nine 
 lashes, or to confine them, &c. Provided, that, when corporal 
 punishment is inflicted on any person by whipping, it shall be 
 the duty of at least two of the inspectors to be present, ." Then 
 according to the discipline of this prison, as declared by the 
 Court to be lawful, only thirty-nine stripes can be inflicted at 
 a time for any offence, and that by order of the inspectors, and 
 in the presence of two of them ; but a turnkey, whenever it is 
 necessary to enforce obedience, or a confession, may inflict as 
 manv as he pleases, without any witness of his proceedings-
 
 INTRODUCTION- J5 
 
 i have enlarged upon this head (more, perhaps, than was ne- 
 cessary,) to enforce the position that the punishment by stripes 
 was an anomaly even as it is permitted by law ; and I have 
 detailed the practice independent of the Statute, for the direct 
 purpose of showing the principle on which the discipline of 
 this prison rests ; and for the incidental one, of illustrating, by 
 a striking example, the difficulty of enforcing a Statute in coun- 
 tries governed by unwritten law. Here, because the Common 
 Law permits a schoolmaster moderately to correct his pupil, 
 and an officer his soldiers, the learned Judge declares it to be 
 law, that the turnkey of a penitentiary, an institution utterly 
 unknown to the Common Law, has a right to chastise a con- 
 vict, nay, more, whip him until he confess himself guilty of 
 an offence ; and this, too, although the Legislature has express- 
 ly directed that when he is whipped it shall be by the direction 
 of other officers, and in their presence. Yet this decision is 
 law in the State of New York, and is published as the authori- 
 ty by which the discipline of this prison is maintained. 
 
 The next objection to this system is its evident liability to 
 abuse. The talent and firmness, tempered by moderation, the 
 knowledge of human nature, and personal courage of Captain 
 Lynds, who introduced it, and who began by procuring a wai- 
 ver of all interference with his plans by the inspectors, have 
 done much present good ; he has introduced order, economy, 
 industry, and cleanliness ; he has banished many abuses ; and 
 his system, under his own direction, although liable to strong 
 objections, is yet so much superior in effect to any hitherto 
 practised, that it has been considered as a model* for the imi- 
 tation of the world ; and in his hands, I have no doubt, that 
 many beneficial effects will result from it. But what security 
 have we that the same rare qualities will be found united in 
 another ? In the communications I have had with him, he 
 says, that his method may be easily taught. This may be true, 
 but unless he can impart his integrity and moderation,! as well 
 
 * Report of the Massachusetts Society. 
 
 t The case of the keeper above alluded to took place, I believe, after Mr. Lynds 
 had left the Auburn prison, and is itself a strong illustration of the danjjer of un- 
 limited delegation of power.
 
 16 INTRODUCTION. 
 
 as a knowledge of his discipline, it will be unsafe to adopt a sys- 
 tem, that must depend entirely for its success on the personal 
 qualities of the man who is to carry it into effect. 
 
 But, even if we were sure of commanding all the requisite 
 qualities and talents united in the same person ; still, there are 
 faults, inherent in the plan, which no administration can cure. 
 Fear is the great principle of this institution, and chastisement 
 of the most degrading kind is the instrument to excite it. If 
 the sole objects were to preserve order in the prison, it is per- 
 haps as effectual, but certainly not as proper a mode as can be 
 devised. But, as a punishment, it fails in two essential points ; 
 in most cases it will not deter the party from a repetition of his 
 crimes, and very rarely will it take away by- reformation his 
 inclination to relapse. A superficial view of this Subject has 
 led to the belief, that the great secret of penal legislation is, to 
 annex a penalty of sufficient severity to every offence ; and, 
 accordingly, all the variety of pains that the body of man could 
 suffer, infamy and death, have figured as sanctions in the codes 
 of all nations ; but although these have been in a train of expe- 
 riment for thousands of years, under every variety that Go- 
 vernment, manners, and religion, could give, they have never 
 produced the expected effect. The reason is to be found in 
 that insurgent spirit with which man was endowed by his be- 
 neficent Creator, to answer the best ends of his nature. The 
 same feeling that elevated, refined, and, applied to the noblest 
 purpose, animates the patriot* to resist civil tyranny, and the 
 martyr to defy the flames : when it is perverted, and made the 
 incentive to vice and crime, goads on the convict to arraign 
 the justice of his sentence, to rebel against those who execute 
 it, and to counteract its effects with an obstinacy in exact pro- 
 portion to the severity of the punishment. If the grossest fol- 
 lies and absurdest fancies of enthusiasm, as well as the clear 
 truths and pure principles of religion, are extended and con- 
 firmed by severe punishments and persecution ; what more 
 evident proof can we require, that this character of the human 
 mind braces itself with an equal energy against bodily suffer- 
 ing, whether inflicted for the correction of error or the sup- 
 pression of truth! The convict, therefore, who has performed
 
 INTRODUCTION. 17 
 
 ins daily labour even for years under the pang or the dread of 
 the lash, will be rather less deterred from the repetition of his 
 crimes, whenever he thinks himself secure from detection, 
 than he would have been by a milder discipline, because the 
 spirit of hatred, revenge, and a desire to retaliate on society, 
 are stimulated and strengthened by the principles which I have 
 supposed to be inherent in our nature. But, as the object of 
 punishment is not only to prevent the repetition, but also the 
 commission of offences, we must inquire whether this disci- 
 pline is calculated, in any great degree, to have this effect ? 
 Its peculiar characteristic is severity. We are told, indeed, 
 that its actual application to individuals is not frequently re- 
 quired, because of the certainty with which punishment fol- 
 lows the offence ; but the dread of it is always there, and the 
 uplifted lash, although its stroke is avoided by submission, is, 
 perhaps, as great a punishment as the actual pain, because it is 
 attended with the moral suffering of degradation. We must 
 repeat then that the nature of this discipline does no more than 
 add severity to the punishment •; and he must be blind to the 
 uniform history of penal jurisprudence, who can believe that 
 increased severity diminishes the recurrence of crimes. The 
 same operation of the mind, to which I have alluded, that 
 gives the energy of mental resistance to the sufferer, operates 
 by a sympathy invariably called into action, on all who, by 
 their state in society, their education or manners, have any 
 feelings in common with him ; and by the same system of se- 
 verity, converts are made to religion, proselytes to impostures, 
 and accessaries to offences. The system, therefore, to judge 
 from analogy, will not deter : Will it reform ? Judging by the 
 same rule, for, as yet, we cannot have, in any conclusive de- 
 gree, the light of experience, I think it cannot. The force of 
 habits on the mind is proverbial ; but those which have this 
 power, are such as were either formed in early life, or were 
 produced by repeated voluntary acts ; few instances, it is 
 thought, can be found in which any series of constrained acts, 
 have produced the habit of continuing them after the force was 
 removed ; but this part of the subject will be more fully dis- 
 cussed, when I shall explain the reformatory system contained
 
 IS INTRODUCTION. 
 
 in the Code which I submit for consideration. I will only 
 now remark that, so far as the force is applied to coerce the 
 convict into a knowledge of some trade, by which he may earn 
 a subsistence, so far it may produce amendment, but then if 
 the same labour can be made a voluntary act, the skill attained 
 in it will probably be more perfect, and undoubtedly there is a 
 greater chance of its being persevered in. 
 
 I conclude then that this system, although it avoids the ob- 
 vious defect of promiscuous confinement at night, and by the 
 strictness of its discipline, prevents many of the evils attend- 
 ing associated labours by day ; still has defects, that will not 
 permit me to agree with the Committee of the Massachusetts' 
 Society, in considering it as a model for imitation. Before I 
 develope the features of the one, in which I think these de- 
 fects are remedied, while all its advantages are retained ; it 
 will be necessary to examine the rival plan proposed in Penn- 
 sylvania. This consists in solitary confinement, strictly so 
 called, by which, say the committee who proposed it, we mean 
 " such an entire seclusion of convicts from society, and from 
 one another, as that during the period of their confinement, no 
 one shall see or hear, or be seen or heard, by any human be- 
 ing, except the jailor, the inspectors, or such other persons, as 
 for highly urgent reasons may be permitted to enter the walls 
 of the prison."* To carry this plan into execution a prison 
 has been erected at Pittsburg, and another is nearly completed, 
 on a most extensive scale, at Philadelphia. This last is most 
 admirably contrived for perfect seclusion : the purposes of 
 cleanliness do not demand the entrance of an attendant, or the 
 egress of the prisoner. His food is furnished without his see- 
 ing the hand that brings it ; and a complete inspection of every 
 part of the cell is had, while the prisoner can neither see nor 
 hear the approach of his keeper : all is silence and solitude, 
 and, if these alone can work reformation, there was never a 
 building better calculated to produce the effect. Whether la- 
 bour is to be permitted or enjoined does not seem to be deter- 
 mined. There is a court, however, annexed to each cell, in. 
 
 ' Report. 1821.
 
 INTRODUCTION. 19 
 
 which solitary labour may be performed, without much danger 
 of communication between the prisoners. This system is 
 simple, and has few details beyond those I have mentioned in 
 describing it. The advantages expected from it are described 
 in the report to which I have referred. Reformation, it is 
 hoped, will be produced by the reflections inseparable from 
 solitude : and the severity of the punishment is well de- 
 scribed in the report, as one that will almost make the patient 
 " the victim of despair" while he is "shut up in a cell for 
 weeks and months and years alone, to be deprived of all con- 
 verse — while he counts the tedious hours as they pass, a prey 
 to the corrodings of conscience and the pangs of guilt :" ami 
 this, it is supposed, will effectually deter the convict from re- 
 peating his crime, and make the vicious fly from a region 
 " where conviction produces so much misery/- As the ser 
 verity of the punishment is increased, its duration is proposed 
 to be diminished ; which will produce a saving that the com- 
 mittee believe will compensate for the loss incurred by the de- 
 ference between solitary and social labour, if that should be al- 
 lowed. It is evident, that here the contagion of evil associa- 
 tions is effectually prevented without the degrading discipline 
 of the New York plan ; that the security is more perfect, and 
 at less expense ; and, if they should make such relaxation from 
 the strictness of solitude as to permit instruction and labour, 
 that it is liable to much fewer objections than the other. If. 
 on the contrary, the plan of the committee, in their understand- 
 ing of what is meant by solitude, be carried strictly into exe- 
 cution, without instruction, without labour, those objections 
 would be of the most serious nature. Their force will be bet- 
 ter understood when I show in what points the plan I propose 
 differs from those I have thus reviewed. 
 
 I premise that no plan of jurisprudence, combining the pre- 
 vention of crime with the reformation of the criminal, has 
 ever yet been attempted on such a scale as would embrace all 
 the different stages and departments of criminal procedure. 
 The only experiment that has been made, (what is called the 
 penitentiary system,) has been applied solely to the substitu- 
 tion of imprisonment, for other more acute bodily suffering as a
 
 20 rNTROBUCTION. 
 
 punishment after conviction, in the expection that it would not 
 only deter but reform ; and the results, during the first years 
 of the trial, £ave encouraging proof, that, if conducted on pro- 
 per principles, it must have the most beneficial effect. But the 
 wretched economy that refused the accommodations for separate 
 confinement ; the exercise of the pardoning power, ill advised in 
 many instances, in others resulting from a necessity created by 
 that economy; and the neglect of moral instruction ; co-opera- 
 ted to arrest the course of this first great improvement ; and 
 ril the different State committees unite with that of Pennsylva- 
 nia, in the declaration, that the ''great penitentiary system is 
 no longer in operation." But this, even if it had been fully 
 tried, is but one part (an important one indeed,) of a reforma- 
 tory code that deserves the name. To be perfect in its object, 
 nicii a system should begin by prescribing a plan of public ed- 
 ucation, not confined to the elements of literature, but extend- 
 ed particularly to the duties of a citizen towards the state, and 
 of men towards each other in every relation of life, and to 
 those principles of religion which are equally acknowledged 
 bv all sects. It would only be repeating trite maxims and ac- 
 knowledged truths, were the necessity of an early education 
 to be enlarged upon ; but it is its operation (when extended 
 to all classes in society) in preventing offences, that is here con- 
 sidered ; early youth is the season in which the germs of cu~ 
 pidity are to be eradicated : 
 
 Eradenda cupidinis 
 
 Pravi sunt elcmenta : et tenerse nimis 
 
 Menles superioribus 
 
 Formandac studiis 
 
 It is there our legislation on this subject must begin, if we 
 wish that its foundation should be stable. A prejudice has 
 been entertained against religious instruction in public institu- 
 tions, from a fear of their being made the engines of proselytism 
 to sectarian doctrines — a fear well founded in countries where 
 there is a dominant sect, but utterly groundless here, where 
 the only establishment is that of perfect equality, and where 
 there would be no practical difficulty in leaving to the parents 
 and pastors of every pupil, the care of instructing him in the.
 
 »artieuiar dogmas oi' his church, at the same time that the 
 principles in which all concurred, might be inculcated in the 
 public school not only as duties of morality but of religion. 
 It is astonishing how little use has been made of this powerful, 
 I might say, when properly used, this omnipotent engine, in 
 promoting the temporal concerns of society, as well as the 
 most important welfare of the individuals who compose it. 
 When it has been called into action, it has been either in aid 
 of temporal, often absolute power, or for the aggrandizement 
 of a particular church. In our happy country no such result 
 need be feared ; and if this important part of a system for di- 
 minishing offence was within the compass of my undertaking, 
 I should offer the project of a statute on this subject, that I 
 think would secure the most perfect equality of religious 
 rights, while it added the inestimable advantages of religious 
 sanction in the prevention of crime. These advantages cannot 
 be placed in a stronger point of light than is done by a gentle- 
 man to whose publications on this subject I have been indebt- 
 ed for much information in fact, as well as instruction in argu- 
 ment. **If (he says) the infliction of human punishments 
 were as certain as their promulgation, crimes would be pre- 
 vented altogether. But as it is impossible for any Government 
 to institute such a system of laws as can detect and punish all 
 offences, the daring criminal percciv-es the imperfection ; and, 
 trusting to his own precautions, and availing himself of time 
 and circumstances, Hatters himself with the prospect of impu- 
 nity. Not so with the denunciations of Divine punishment ; 
 which, when duly impressed on the mind, possess a sanction 
 at which mere human authority can never arrive, and bring 
 with them that certainty of detection and certainty of punish- 
 ment, which alone can, in all cases and imder all circum- 
 huices, prevent the perpetration of crime. If, then, we are 
 once able to produce upon the mind a thorough conviction of 
 the existence of one Supreme, Intelligent, Superintending He 
 ing, the Creator of all things, who sees through all his works, 
 and perceives the deepest recesses of the human heart, and 
 who will reward or punish even/ one according to his din! 
 this will not only remedy the defects in mere human institu- 
 (ions_, by providing that coi tinua] inspection, discovery, and
 
 n RODUCTIOK. 
 
 punishment, which such institutions endeavour in vain to sup- 
 ply ; but will correct innumerable offences of every kind, 
 which they do not pretend to punish, and which are wholly 
 beyond their reach."'* Such a plan of general religious in- 
 s-ruction, embracing the doctrines common to all the Christian 
 sects, and excluding all sectarian doctrine, is not mere theory. 
 Tt has been for years practised in the City of Boston where 
 nearly 100,000 dollars are appropriated to the public instruc- 
 :ion of children of every denomination, and where the forms 
 of religious instruction have been settled by the pastors of the 
 several sects, on the principles I have laid down ; and such suc- 
 cess has attended this honourable and liberal experiment, that, 
 although the schools have been in operation for more than ten 
 years, and on an average more than three thousand have been 
 educated in them annually, not one of those educated there 
 has been even committed for a crime. t And in New York 
 a similar effect has been observed. Of the thousands educated 
 in the public schools of that city, taken generally from the 
 poorest classes of society, but one, it is asserted, has ever been 
 convicted, and that for a trifling offence. % 
 
 I should apologise for drawing the attention of the Legisla- 
 ture to a subject that might seem foreign to the plan which this 
 report is intended to elucidate, if public education were not 
 found to be one of the best means of preventing crimes, and if 
 the reflections here made did not apply to the instruction 
 which forms so large a part of the prison discipline which I 
 propose. Adverting, then, only to this as to a subject connect- 
 ed with, but not embraced by, the matter of this report, I pro- 
 
 * Roscoe. Additional Observations on Penal Jurisprudence. 
 
 f As far as the reporter is informed, the United States have given the first ex- 
 ample, in modern times, of a provision for education, furnished at the public ex- 
 pense, to all the community. The early colonists of New England set the exam- 
 ple; the system is coeval with the first settlement of Massachusetts, and has with 
 the most enlightened spirit of legislation been adopted by other States. The libe- 
 ral arrangement with respect to religious instruction is not confined to the period 
 of ten years mentioned in the text — it was made much earlier; but the fact of its 
 operation in preventing crime was derived from a gentleman, (S. L. Knapp, 
 Esq.,) who spoke from knowledge, acquired during that period, by a personal at- 
 tention to the schools, and a close professional attendance in the courts. 
 
 % Letter from Thomas Eddy to the commissioners, eighteen hundred and twen- 
 *.-, r,„„ ^^n, 1 i Tl j a<r v»r? 'iidicious reflections on this subier 1-
 
 RCDUCTIO.V 
 
 cced to develop the system which, after the maturest reflection, 
 I have submitted for consideration. Its objects are extensive 
 and many, but are so closely connected, that to strike out any 
 one would destroy the unity that must give it effect Instead 
 of confining it, as has been hitherto done, to considering im- 
 prisonment and labour as the means of punishing crimes already 
 committed, I draw the attention of the Legislature to the means 
 of preventing them, by provisions bearing upon pauperism, 
 mendicity, idleness and vagranc)', the -great sources of those 
 offences which send the greatest numbers to our prisons. 
 
 Political society owes perfect protection to all its members 
 in their persons, reputations, and property ; and it also owes 
 necessary subsistence to those who cannot procure it for them- 
 selves. Penal laws to suppress offences are the consequences 
 of the first obligation ; those for the relief of pauperism, of the 
 second ; these two are closely connected, and when poverty is 
 relieved, and idleness punished, whenever it assumes the garb 
 of necessity, and presses on the fund that is destined for its 
 relief, the property and persons of the more fortunate classes 
 will be found to have acquired a security, that, in the present 
 state of things, cannot exist. 
 
 This truth has attracted the attention of most civilized na- 
 tions ; but by always making the laws of pauperism a distinct 
 branch of legislation, never connecting it with their penal ju- 
 risprudence with which it has so intimate a relation, it has been 
 a source of more perplexity and confusion, and has given birth 
 to more bad theory and ruinous practice, than any other question 
 in Government. Many of these difficulties, it is supposed, will 
 be obviated by the application of sound principles, before the 
 evil has become so incorporated in the system as to make it 
 difficult to be eradicated. 
 
 In relation to this subject, society is formed of two divi- 
 sions; those who by their industry or property, provide sub- 
 sistence for themselves and their families, and those who do 
 not. The latter must of necessity draw their support from the 
 former, either by depredations on property, which bring them 
 within the purview of the laws for punishing crimes ; or un- 
 der the reality or pretence of pauperism by levying a tax on 
 public or individual charity. It is to this last description that
 
 INTROMJI . 
 
 I now draw the attention of the Legislature. They may bo 
 divided into three classes: — 
 
 Those who can labour, and arc willing to labour, but who 
 cannot find employment: — 
 
 Those who can labour, but are idle from inclination, not for 
 want of employment: — 
 
 Those who are unable to support themselves by their labour, 
 from infancy, old age, or infirmity of body or mind. 
 
 The first and last of these classes are to be relieved, not 
 only by force of the obligation before referred to, but from a 
 social duty not less imperative, because it is founded on hu- 
 mane feelings, and is enforced by perhaps the best precept of 
 that religion which places charity in the highest rank of the 
 virtues it inculcates. This relief must be given by providing 
 means of employment for the industrious, and gratuitous sup- 
 port for the helpless. The middle class includes those who, 
 under the name of vagrants and able-bodied beggars, are placed 
 in society on the verge between vice and crime; vicious enough 
 to reouire inspection and restraint; not so palpably guilty as to 
 justify severer punishment; abounding in large cities, they are the 
 hot-beds in which idleness and profligacy are foreed into crime, 
 and are properly the object of coercive justice: but they cannot 
 become so without adopting the means neeessary to distinguish 
 and separate them from the innocently poor: and it is this ne- 
 cessity which brings that class also within the scopo of the 
 measures for preventing crimes. It was thought that a good 
 system should not only restrain the vicious, and punish and 
 reform the guilty, but, by relieving and employing the pom-, 
 put an end to one of the strongest inducements to commit of- 
 fences. For these reasons the Code of Prison discipline pro- 
 vides, that a building shall be erected, to be called, the House 
 of Industry, with two distinct departments, one for voluntary, 
 the other for coerced labour ; the first department is intended 
 as a place of employment for all those who are capable of 
 gaining, by their bodily exertions, a complete or partial sup- 
 port; and for the few who are totally helpless. Its character, 
 as a house of refuge, will be hereafter explained ; the second 
 department is designated as a place in which vagrants and able- 
 bodied mendicants shall be forced to labour for their support.
 
 IXTROBlit ■ 
 
 This establishment enters most essentially into the plan I 
 propose. Its different departments, under the name of poor- 
 houses, work-houses, and bridewells, are known not only in 
 England and the States, which derive their jurisprudence from 
 that country ; but in different parts of Europe: but they arc 
 there distinct institutions, and want that unity of plan from 
 which it is thought their principal utility will arise. This re- 
 quires elucidation. If the duty of supporting its members be 
 once acknowledged to be one incumbent on society, to the ex- 
 tent that has been assumed, and if the classification I have made 
 be correct, the necessity becomes apparent, of distinguishing in 
 what degree the different applicants are entitled to relief ; but 
 that system would be obviously imperfect that was confined to 
 making this distinction, and granting relief only to the one 
 class without making any disposition of the others. Every ap- 
 plicant, if my premises be true, must belong to one or the 
 other of those classes ; and the same Magistrate who hears his 
 demand of support, or before whom he is brought, on an ac- 
 cusation of illegally obtaining it, is enabled at once to assign 
 him his place. Is he able and willing to work, but cannot 
 obtain it? here is employment suited to his strength, to his 
 age, his capacity. Is he able to work, but idle, intemperate, 
 or vicious? his habits must be corrected by seclusion, sobriety, 
 instruction, and labour. Is he utterly unable to provide for 
 his support? The great social duty of religion and humanity 
 must be performed. One investigation on this plan puts an 
 end to the inquiry. Every one applying for alms, or convict- 
 ed of illegal idleness and vice, necessarily belongs to one or 
 the other class, and immediately finds his place ; he no longer 
 remains a burthen on individuals; and society is at once re- 
 lieved from vagrancy and pauperism. Instead of this simple 
 process, the poor laws are generally administered by agents 
 whose duly is confined to a selection of proper objects of cha- 
 rity, without power to punish the impostor who preys on the 
 fund provided for the poor and the helpless; and without anv 
 means to enable the honest labourer or artisan to earn his sub- 
 sistence. This establishment once made, on a proper scale, 
 the plan for supporting it faithfully executed, the second, 
 tit?, in this scale of preventive justice will ]
 
 2ii iNTKQDUCTIOiN. 
 
 the first, ) our rising generation will be taught habits of indus- 
 trious obedience to the la-.v, a respect for religion, and a love 
 of justice and moral duties. By this, which is the second., 
 those who have grown up without these advantages, those who 
 have not profited by them, and the numerous class of adven- 
 turers from other countries, will be arrested in the earliest 
 stages of their profligacy, and taught to be industrious before 
 they become criminal. 
 
 I am not unaware that this plan is, in some points, founded 
 on principles that are much questioned by many who have 
 written on this part of social economy. Without making this 
 report a vehicle for the full discussion of those principles, it 
 will be necessary briefly to state the objections that have been 
 made, with my reasons for not yielding to their force. 
 
 The policy, and sometimes the obligation, of a public pro- 
 vision for the poor has been forcibly assailed in England, and 
 by men of high reputation here. The argument is shortly 
 this. The duty to provide for the poor is rather a moral than 
 a civil obligation: it binds, successively, relations, friends, 
 wealthy individuals, and, last of all, society, which can be 
 called on to support those only who are not provided for by 
 individuals. But if this obligation upon society be once ac- 
 knowledged and acted on, the individuals who stand in a nearer 
 relation to the pauper will at once disregard a duty which has 
 only a moral sanction, and the Government will have the ex- 
 clusive charge of the burthen. And this, according to the ar- 
 gument, is not all : the certainty of an ultimate support will 
 lead to idleness, extravagant speculations, imprudent marriages, 
 and all the improvident acts that naturally produce poverty; 
 and, in time, the number of paupers will be so great as to 
 consume the resources of the State, or, if quartered on smaller 
 divisions of the country, to reduce the individuals composing 
 it nearly to the state of those whom they are forced to relieve. 
 And the theory is supported by reference to England, where, 
 at times, every fifth man is a pauper, and the poor-rates equal 
 one-tenth * of the whole revenue of the kingdom. 
 
 * In the year 1821, the poor-rates were £7,325,611; the income £72,811,862. 
 the number of paupers 2.493.423: and the whole population 12.218.500
 
 INTRODUCTION. 
 
 In a country with a population so great as it> reduce the 
 full price of labour to a bare subsistence, and at the same time 
 employing that labour in the production of articles for which 
 the demand is uncertain, there is no doubt that, at times, a per- 
 manent provision for the poor must be extremely burthensomo 
 on the community ; and, in such a country, an establishment 
 to provide labour for all those whom the vicissitude of trade 
 should throw out of employment, would be, perhaps, imprac- 
 ticable, and certainly very difficult of execution, But, besides 
 its inapplicability to a different state of society, the argument is 
 founded on the false principle, that the moral obligation of 
 charity in individuals, whether related to the pauper or not, is 
 superior in degree, as well as prior in the time of its exercise, 
 to that social duty which every nation owes to the individuals 
 which compose it ; which duty is not only protection, but mu- 
 tual support. That society owes protection to all its members, 
 is not denied. But what is that protection ? Certainly its chief 
 object is life ; but, whether life be assailed by the sword or by 
 famine, it is equally important for the individual, and for the 
 community too, that it should be preserved. There are mutual 
 obligations between society and the members which compose 
 it, which are not written covenants ; they result from the na- 
 ture of the connexion, from the objects to be attained by the 
 association, which is, the protection of life and property. But 
 the preservation of life is the first object, property is only a 
 secondary one ; and, if a contract is to be supposed, can it be 
 imagined to be of a nature that would impose on any one of the 
 contracting parties the loss of that which it was the chief end 
 of the contract to preserve? and that, too, for the preservation 
 to the others of a portion of that which was only the seconda- 
 ry object ? In other words, can it be supposed that any just 
 contract could stipulate that one of the contracting parties should 
 die of hunger, in order that the others might enjoy, without de- 
 duction, the whole of their property ? The obligation, then, 
 if derived from the only source to which we can look i'u: 
 conditions, includes support as well as protection ; and although 
 this obligation may, by the operation of positive law, bej 
 modified by imposing the burthen of support on relations Ci 
 
 porting it, yet.
 
 INTRODUCTION. 
 
 are either deficient, or have not been provided, the duty rer 
 turns in its full force upon the community. 
 
 That this duty is sometimes very onerous, cannot be denied. 
 A redundant population (by which I mean more people than 
 can be so employed as to earn their subsistence) is a cause of 
 this evil, that can only be avoided by emigration, when it is 
 the result of a natural increase ; but, generally, it is the effect 
 of false principles in political economy : of that system which, 
 by premiums and duties, pampers one branch of industry into 
 an unnatural growth, and seduces so many to pursue it, that 
 the market is soon overstocked with the proceeds of their la- 
 bour, and they are then left to starve, or become the objects of 
 public charity. A temporary foreign demand may also have 
 the same effect ; but, in that case, the community, which must 
 have been enriched by the effects of that demand, will be better 
 able to bear the burthen, and ought not to complain that it is 
 forced to give occasional support to the unfortunate instruments 
 of its prosperity. But, in a country where the ordinary price 
 of labour is more than sufficient for maintenance of the poor, 
 they can only be a serious burthen in consequence of the want 
 of true principles, or a good system of enforcing them: and 
 the whole secret lies in the finding employment adapted to 
 every applicant for relief. The number of those who are in- 
 capable in any degree of contributing by labour to their own 
 support, is very small ; and it is evident that, when none are 
 idle, the cost to the State will be only equal to the difference 
 between the proceeds of such labour and the expense of sup- 
 port ; but the proceeds of ordinary labour are supposed, by 
 the state of society, to be more than sufficient for maintenance ; 
 therefore, making all proper deductions for forced labour, and 
 the other disadvantages of public institutions, the proceeds of 
 labour, then, if they are properly conducted, will not fall so 
 far short of the expense as to create any fear of the ruinous 
 consequences which attend the increase of the poor rates in 
 England. 
 
 At present, the duty of supporting needy relations is, by the 
 law as well of England as of the different United States, con- 
 fined to ascendants and descendants only. To England this 
 obligation, so as to oblige collaterals within the second, or per-
 
 PRODUCTION. 
 
 haps the third degree, to contribute to their support, would, it 
 is thought, not only lessen the burthen on the public, but pre- 
 vent, by the advice and interference of friends, those imprudent 
 engagements which are the principal causes of poverty. Should 
 it have this effect, it will lessen the weight of the objection 
 that a public provision for the poor will increase the numbers, 
 by rendering men adventurous in speculation, improvident in 
 marriage, and careless in the conduct of their affairs. Most of 
 the writers on this subject, state that this effect is produced by 
 the poor laws of England ; but it would seem that the natural 
 love of independence, and the sense of degradation insepara- 
 ble from a reliance on public charity, would always prevent 
 this provision being calculated on as a desirable resource ; and 
 we might rather conclude that, the numbers who are reduced 
 to this extremity by extravagance, would have been equally 
 prodigal if no such provision had existed. However this may 
 be in a country where the sense of shame is deadened by mise- 
 ry and extensive companionship in its degrading effects, and 
 where support is afforded without exacting its equivalent in 
 labour, it is believed that nothing of this nature need to be ap- 
 prehended in one where the natural repugnance to live on cha- 
 rity is strengthened by the ease with which labour can procure 
 not only support, but competence and ease ; and where the 
 relief that it is proposed to afford, can only be procured by 
 bodily exertions proportioned to the ability of the party. Such 
 are the reasonings and facts on which I have ventured to pro- 
 pose, as part of my plan, the house of refuge and of industry. 
 I deem it a most essential part of the system. As prevention, 
 in the diseases of the body, is less painful, less expensive, and 
 more efficacious, than the most skilful cure ; so, in the moral 
 maladies of society, to arrest the vicious before their profliga- 
 cy assumes the shape of crime ; to take away from the poor 
 the cause or pretence of relieving themselves by fraud or by 
 theft; to reform them by education, and make their own in- 
 dustry contribute to their support, although difficult and expen- 
 sive ; will be found more effectual in the suppression of offences, 
 aud more economical, than the best organized system of pun- 
 ishment. An offence perpetrated, incurs the loss sustained by
 
 30 INTRODUCTION. 
 
 its commission, and frequently that of its repetition, added to 
 the expense of its punishment. To prevent an offence requires 
 only the previous expense of education and confinement. 
 These reasons have induced me to suggest the plan of general 
 education, and to combine with the 6ystem I offer, establish- 
 ments for the relief of paupers, and the seclusion and instruction 
 of t lie vicious and idle. These institutions, although they may 
 conveniently be placed under the immediate direction of the 
 same superintendent, are essentially different in their character: 
 the one is a prison, the other a place of refuge. The object of 
 one is instruction; of the other relief. Education and industry 
 are ends common to both. Therefore, the regulations for the 
 one prescribe strict seclusion and coerced labour ; while the 
 confinement and classification of the other is merely such as 
 is necessary for the maintenance of order ; and the only penal- 
 ty for idleness is discharge, with the certainty of being classed 
 in the next application for relief with those who are wilfully 
 idle. The great objection usually made to establishments of 
 this kind, is the expense. This, in a great measure, will be 
 obviated by a wise and prudent administration, by which labour 
 suited to every degree of strength and skill may be provided. 
 In our country, there are great facilities for this : gardening, 
 poultry yards, and the different occupations of agriculture ne- 
 cessary for the supply of a largfe city, offer employments of 
 the most healthful kind, and in which some occupation suited 
 to every individual may be found. Add to these, a brick or 
 tile yard, a rope walk, chair making, all the manufactures of 
 straw, cotton spinning, weaving, and other manufactures, of 
 which more particular mention will be made when we speak 
 of the penitentiary ; and it will be seen that, by proper man- 
 agement, means may be found to employ all the tenants of this 
 establishment, whether in the seclusion of the house of indus- 
 try, or the more relaxed discipline of the house of refuge : few 
 are so weak and infirm as to contribute nothing towards their 
 support ; and the great object will be, that there shall be no 
 idleness that is not the effect of infirmity. By these means, 
 the actual expense will be much lessened, and the comparative 
 account trulv stated, between the cost of suffering them to live
 
 IJfTRODUCTIOSr. 
 
 in idleness by contributions levied upon private or public 
 charge, or depredations upon property, and the expense of this 
 establishment will show a balance greatly in its favour. 
 
 We are come to that part of the system of prison discipline 
 applicable to penal law, in that restricted sense which confines 
 it to the prosecution and punishment of offences. In the pro- 
 ject which I submit to the Legislature, I begin with a part of the 
 subject that has generally been most unaccountably, most injuri- 
 ously neglected. The danger of vicious association is univer- 
 sally acknowledged ; its corrupting influence has been pour- 
 trayed by every figure that rhetoric could supply, and enforced 
 by the most energetic language of eloquence ; but its delete- 
 rious effects seemed to be feared only after condemnation, and 
 no efficient plan has hitherto been adopted, or, as far as I am 
 informed, proposed by any Legislature, to apply a corrective 
 to it in the incipient stages of criminal procedure. Yet here, 
 emphatically, it is calculated more widely to spread its infec- 
 tion. After condemnation there can be no association but of 
 the guilty with the guilty; but, in the preliminary imprison- 
 ment, guilt is associated with innocence. The youth who is 
 confined on suspicion only, whose innocence at the time of his 
 arrest is attested by his subsequent acquittal, leaves the den 
 where he was imprisoned, with tainted morals, depraved ha- 
 bits, passions excited to vengeance, and fit associates to aid 
 him in pursuits that make his second entrance to the house of 
 detention, only a passage to the penitentiary, or, in our pre- 
 sent system, to the gallows. In our great cities, where this 
 reform is most necessary, it seems least attended to. Vices the 
 most disgusting, brutal intemperance, crime in its most hide- 
 ous and appalling forms, are there congregated, and form a 
 mass of corruption, rendered more deleterious from the mix- 
 ture of imported depravity and native profligacy of which it is 
 composed. The bridewell of a large city, is the place i:i 
 which those representatives of human nature, in its most de- 
 graded shape, are assembled ; brought into close contact, so 
 that no art of fraud, no means of depredation, no shift to avoid 
 detection, known to one may be hid from the other ; where 
 those who have escaped receive the applause due to their dex- 
 terity; and he who has suffered, glories in the ronstanry
 
 INTRODUCTION, 
 
 with whieh he has endured his punishment, and resisted the at- 
 tempts to reform him. Here he who can " commit the oldest 
 crime the newest sort of way," is hailed as a genius of superior 
 order, and, having no interest to secure the exclusive use of the 
 discovery, he freely imparts it to his less instructed companions. 
 Thieves, and all the other offenders whose crimes are committed 
 upon property, here receive the most useful instructions, not 
 only for perfecting themselves in their vocation, but of proper 
 objects on which it may be exercised ; and the comparatively 
 short detention of a larger majority, gives them the means of 
 immediately practising the lessons they have received : for it 
 may be fairly calculated, that, of those committed for trial, 
 three-fourths * escape conviction after being detained just long 
 
 * In New York, in the year 1822, there were committed to the Bridewell pri- 
 son, on accusations for crimes and misdemeanours, 2,361 persons. Of these, 
 fewer than 541 were brought to trial, (for that is the whole number of persons 
 tried, including those who were not committed but bailed,) of these 541,180 
 were acquitted; which produces this result: 
 
 Committed far trial, ----- 2,361 
 
 Convicted, - - - - - - 361 
 
 Discharged or acquitted, ----- 2,000 
 
 In 1823, were committed, ... - 1,92 
 
 The whole number tried that year was 599, of 
 whom 177 were acquitted, so that the number 
 convicted was -.„--» 422 
 
 Total discharged or acquitted, - - - 1,506 
 
 In 1824, committed, ----- 1,961 
 
 Tried 586, acquitted 169, convicted - - 417 
 
 Total discharged or acquitted - - - - 1,544 
 
 In 1825, committed, - 2,16S 
 
 Tried 547, acquitted 161, convicted • - 386 
 
 Total discharged or acquitted, - - - 1,782 
 
 In 1826, there were committed, to 20th No- 
 vember, - - - - - - . * 2,046 
 
 Add in the same proportion for the rest of the 
 year, - - 227 
 
 2.273
 
 .UNTRODUCTlOIv. oJ 
 
 enough to receive instruction in all the mysteries of crime. 
 This view of the danger of increasing guilt, by communica- 
 tion between the guilty in different degrees, has been often 
 considered, and is in a great degree applicable to the associa- 
 tion of convicts in a penitentiary as well as in those prisons we 
 are now considering. But, when we add to it the serious con- 
 sideration, that innocence and youth are at all times exposed 
 to this contaminating influence : that laws which profess to pre- 
 serve the morals and purity of the citizen, are made the in- 
 struments of their destruction ; what expression can be too 
 strong to mark our astonishment at the apathy or indolence of 
 legislators, who, knowing the evils of this system, can suffer it 
 to continue, or who will not take the trouble to inform them- 
 selves on the subject ? Indiscriminate confinement preparatory 
 to the trial, has, in this report, hitherto been considered only 
 in its contaminating effects ; and those effects are sufficiently- 
 dreadful. But there is another view of its consequences, its 
 inevitable consequences, which not only shocks the under- 
 standing, but lacerates the best feelings of the heart. The 
 only discrimination made between the white tenants of these 
 places of confinement, is that of the sexes. The women are 
 kept in a separate apartment; the men in as many others as the 
 prison can afford, but without any distinction between them, 
 The innocent stranger, unable to find security, is joint tenant 
 of the same chambers with three-times-convicted convicts ; va- 
 grants sunk in vice, and brutified by intoxication ; perpetrators 
 
 Tried 662, acquitted 200, convicted 462 
 
 Total discharged or acquitted, - - - 1,811 
 
 A much greater disproportion exists between the commitments and convictions 
 in Great Britain ; but this is sufficient to show, that, in every year in one of our 
 cities, from 1,500 to 2,000 persons of both sexes, all of whom are legally pre- 
 sumed to be innocent, and a large proportion must be really so, are annually 
 forced, by the operation of the laws, into the closest association with the most 
 abandoned of their species ; they must eat, drink, and sleep with them. They 
 have no retreat from the infectious atmosphere of their society; awl, after having 
 been thus forced to enter the school of vice and criminality, the 2,000 discipli 
 are turned out to practise the lessons they have learned! And this is the wise 
 system of laws that needs no amendment! This is the humane administral 
 them in a rich and pnligh*cnp'!
 
 1NTH0DU0TI0N. 
 
 of every infamous crime ; and even with murderers taken in 
 the fact. Women of innocence and virtue are sometimes 
 forced, by this unhallowed administration of justice, into an 
 association with all that is disgusting in female vice ; with vul- 
 garity in its most offensive form ; with intemperance sunk to 
 the lowest depth of degradation ; with every thing that can be 
 conceived most abhorrent to female delicacy and refinement. 
 This is no picture of the imagination : the reporter has seen 
 it. It is realized in a greater or less degree in all the cities of 
 the Atlantic States: and even legislators, patriotic statesmen, 
 and benevolent philanthropists, who have for years been legis- 
 lating, and reasoning, and devoting their time and talents to 
 the application of solitary imprisonment to the purposes of 
 punishment after conviction, have never yet taken one efficient 
 step to prevent the demoralizing effects attending indiscrimi- 
 nate association before trial, or to rescue the innocent not only 
 from the infection of such society, but from the punishment it 
 inflicts. For what greater punishment could be devised for a 
 man of education and morals, used to the refinements of good 
 society, than to shut him up night and day, for weeks and 
 months, in a room crowded with the vilest of the vile, with 
 men stained with every crime? or to a woman, not sunk her- 
 self in vice, to be associated with the most abandoned of her 
 sex? Yet such is the humanity, the justice, of our boasted 
 jurisprudence. We begin by inflicting this moral punishment 
 on one presumed, by tbe first principle of our law, to be inno- 
 cent: we add to it the physical evil of close confinement, 
 without any of the conveniencies of life, for an unlimited pe- 
 riod ; and when perhaps his morals are corrupted by the socie- 
 ty which the justice of his country has forced him to keep, 
 and his health is destroyed by the rigor of imprisonment, his 
 innocence is declared, and he is restored to society either to 
 prey upon it by his crimes, or burthen it by his poverty. 
 What greater moral or physical evil, it may be asked, would 
 have been inflicted on the guilty, than this which the innocent 
 is made to suffer ? An eye-witness to more than one of the 
 scenes he has described, and which, he repeats, are not exag- 
 gerated in the description, the reporter was deeply impressed 
 with the necessity of a radical reform in the svstem of deten-
 
 .VlJttOjJircriu.V 
 
 iion before trial, and has embodied it in the code which he 
 presents. Persons whose liberty, for the good of society, 
 must be restrained, are either those upon whom imprisonment 
 is imposed merely for the purpose of securing their appearance 
 when the purposes of justice require it, or those upon whom it 
 is inflicted as a punishment. 
 
 The detention of those of the first description, to be just, 
 must not only be necessarj', but must be attended with no pri- 
 vation that is not absolutely required for the end proposed, and 
 for the preservation of order. 
 
 Each of these two divisions is composed of several subordi- 
 nate classes, for the government of which different rules are 
 necessary. None are comprehended in the first, who are able 
 to find a sufficient pledge that their personal attendance will be 
 given when it is called for. The purposes of the projected 
 code require, that those comprising this division should form 
 three classes : 
 
 1. Persons whose testimony is neeessary for the investiga- 
 tion of some important charge. 
 
 2. Those accused of misdemeanor. 
 
 3. Those charged with crime. 
 
 The first of these classes is separated from the two others by 
 an evidently marked distinction. Those who compose it arc 
 net presumed to be guilty of any offence ; the temporary pri- 
 vation of their liberty is a necessary sacrifice for the safety of 
 society ; it is taken on the same principle that justifies the ap- 
 propriation of private property for public purposes, and it car- 
 ries with it the same right of indemnity; which indemnity the 
 code does not fail to provide. 
 
 With respect to the two other classes, there is this difference, 
 that, in these, there is a presumption of guilt, arising from an 
 accusation on oath. The maxim, that every man is presumed 
 innocent before conviction, is, like many other legal maxims, 
 true only to a certain extent. In its application, it can mean 
 only that proof must precede conviction, and that accusation 
 alone is not one of those presumptions which throw the bur- 
 then of proof on the accused, and cause him to be believed 
 guilty, unless he shows himself innocent. But it is not true a-' 
 ects persons accused on oath in a legal form. This ii
 
 30 INTBODUCTIOiN. 
 
 ficicnt to justify every measure tor securing the person, be- 
 cause it creates such a presumption of guilt, as raises a probabil- 
 ity of an attempt to escape punishment, and on the degree of 
 this probability is founded the distinction between the second 
 and third classes : the motive to attempt an escape being great- 
 er, in proportion to the magnitude of the punishment. For 
 these reasons, the code directs that prisoners of the first class, 
 to whom no offence is imputed, shall enjoy every alleviation 
 of their misfortune, not incompatible with the maintenance of 
 order, that their own means can procure. The second class 
 being accused of an offence, punishable, when proved, by a 
 comparatively light penalty, neither the temptation to escape, 
 nor the evil consequences to society, should it be effected, are 
 so great as to justify a rigor of confinement equal to that 
 which is necessary to secure the third class, accused of crime. 
 These degrees are distinctly marked in the code ; but it care- 
 fully provides that none of those comprehended in this divi- 
 sion shall suffer any other inconveniences from their detention, 
 than those necessary to secure their personal appearance, and 
 to prevent the evil association, no less requisite to protect 
 their own morals against the contagion of vice : for this classi- 
 fication is essential to the other and no less important design, 
 which has been before stated in this report, that of separating 
 the persons composing the two first classes from any communica- 
 tion with those of the third, and the individuals of this last from 
 any intercourse with each other. The presumption, before al- 
 luded to, also justifies this measure. It is one of protection, 
 from which the innocent have every thing to gain, and of which 
 the guilty cannot complain: for it imposes no unnecessary re- 
 straint, and takes from them only the power of corrupting and 
 being farther corrupted. The danger of guilty associations; 
 the duty of avoiding them by a careful separation of the innocent 
 from those who labour under presumption of guilt ; of those ac- 
 cused or convicted of offences, implying no great degree of mor= 
 al turpitude, from those who are presumed or known to be guil- 
 ty of crimes which evince depravity of mind and manners ; of the 
 young from the old offender ; are considerations on which the 
 code of prison discipline rests ; and on the code of prison di- 
 jipline depends the xvhole system of penal law/ It is for this
 
 INTRODUCTION, 37 
 
 reason that classification before trial has been provided for with 
 the same care that is required after conviction ; and it has 
 been particularly urged in the report, from a conviction that 
 its importance in penal jurisprudence has not hitherto been pro- 
 perly appreciated. It is proposed, not only that the place for 
 this confinement shall be separate from that in which it is inflicted 
 as a punishment, but it is called, not a prison, but a house of 
 detention merely, that the name may not carry with it any 
 idea of infamous punishment. The marked distinction in the 
 penal code, between crimes and misdemeanors ; the degree of 
 morar*guilt in the former, with which the latter is for the most 
 part, not infected ; renders a correspondent difference necessa- 
 ry in the plan and nature of the punishment inflicted on them 
 respectively. 
 
 After considering imprisonment as a necessary restraint 
 merely, (the only just character which, before trial, it can have,) 
 and showing the provisions in the code of prison discipline ad- 
 apted to this end, it remains to be considered in its double 
 capacity, as a punishment and the means of reform. 
 
 The nature, properties, and efficacy, of imprisonment, as a 
 means of punishment, have been so fully discussed, in the in- 
 troductory report to the Penal Code, that no more will be said 
 here than is necessary to elucidate its modifications and combi= 
 nation with the reformatory part of the plan. 
 
 Of imprisonment, the Penal Code directs four grades : — -sim- 
 pie imprisonment, simple imprisonment in close custody, im- 
 prisonment with labour, and imprisonment in solitude. 
 
 The two first are applied to offences involving no great de- 
 gree of moral wrong, and therefore ought not to be confounded 
 with others in which depravity is apparent. Some loss of re- 
 putation, when the laws are just, and impartially administered, 
 necessarily is incurred by the infliction of every punishment, 
 But disgrace ought to be attached to those only which are in- 
 flicted for crimes implying moral depravity. Hence the dis- 
 tinction which the law has drawn, and which the code of pri- 
 son discipline must execute, between misdemeanors and crimes. 
 To mark this distinction, different places, as well as a diflci- 
 ence of treatment, are necessary. 
 
 It would be approximating these degrees of offence too close-
 
 9$ .?J.TK0I>1)C.TIP>. 
 
 ]y, to commit to the same prison the criminal aud the misde- 
 meanant. A man of worth and integrity may be guilty of 
 breaking the provisions of mere positive law ; but it would be 
 confounding all ideas of proportion in punishment to conduct 
 him to the same prison with the thief or assassin. A depart- 
 ment therefore in the house of detention is designated for offen- 
 ders of this description, whether the sentence be simple con- 
 finement or imprisonment in close custody. The discipline 
 applicable to them is also necessarily different from that requir- 
 ed in the penitentiary : as no great moral guilt is implied in 
 the offences of which they have been guilty, and the detention 
 is limited to short periods, so the imprisonment is intended 
 more for punishment than reformation. In this, as in all other 
 places of confinement, under this system, complete separation 
 at night is strictly enforced ; the means of education and re- 
 ligious instruction are provided ; seclusion is graduated accord- 
 ing to the sentence ; good wholesome food and comfortable 
 lodging are provided at the public expense ; labour is permit- 
 ted, but never enforced ; vicious associations precluded, but 
 close confinement never resorted to but when directed by the 
 judgment, or rendered necessary to preserve the order of the 
 prison. The distinction between simple imprisonment and 
 confinement in close custody, is sufficiently explained in the 
 Penal Code ; and the precise rules laid down in the Code of 
 Discipline for the treatment of prisoners under these punish- 
 ments is calculated to prevent oppression, on the one hand, 
 and, on the other, strictly to enforce the execution of the sen- 
 tence. How different in its very nature! how infinitely so in 
 its effects, is imprisonment, under these regulations, from the 
 same punishment as usually inflicted for slight offences! The 
 horrors of a bridewell have been faintly described j yet it is to 
 such a place that the misdemeanant under the present system, 
 in most of the States, is committed, to pass the period of his 
 confinement without labour or instruction ; and either in the 
 congenial association with vulgarity and vice, to forget that he 
 is in a place of punishment, or, shrinking from their abhorred 
 contact, to find the physical evil of imprisonment increased 
 beyond calculation by a moral evil which is inflicted without 
 being ordained by the law: whereas, on the plan I propose, no
 
 INTKODLCTIU.v $& 
 
 • reater evil being suffered than precisely that directed by the 
 sentence, and nothing left to the discretion of turnkeys or 
 keepers, the judge is enabled, with a precision before impossi- 
 ble, to apportion the punishment to the offence. Heretofore, 
 however slight the infraction of law that involved the penalty 
 of confinement, an indefinite evil of bad association was neces- 
 sarily annexed to it : and if a respectable man, for an impru- 
 dent breach of the peace, or for an intemperate expression in 
 court, should be committed to prison for a few days, it depend- 
 ed on the accidental circumstance of the numbers in the bride- 
 well, and sometimes on the disposition of the keeper, or, what 
 is worse, on the wealth of the party, to determine whether he 
 should pass those days in a comfortable apartment, making 
 merry with his friends, or should drag them on in the society 
 of felons. Now, the magistrate will know the extent of the 
 punishment he awards. Simple imprisonment is defined : its 
 privations, its indulgences, the penalties attending the abuse of 
 them ; every thing is accurately marked. Within certain li- 
 mits traced by the law, these indulgences may be restricted or 
 enlarged by the Judge, not by the jailer ; according to the cir- 
 cumstances of the offence, not according to the caprice of a 
 turnkey, or the capacity of the prisoner to purchase his favour. 
 And simple imprisonment, the lowest grade of corporal pun- 
 ishment, formerly an engine of torture to some, to others a 
 mockery of justice, to all the means of depraved and depra- 
 ving associations, becomes, in the hands of a discreet judge, 
 an elastic instrument of coercion that may be made to press on 
 the smallest transgressions, or expand to fit the highest misde- 
 meanor to which it is applied. 
 
 Imprisonment in close custody is the next grade ; and here 
 the same strict rules to limit the discretion of the keeper, are 
 applied. In all the provisions of this code, the great truth is 
 never lost sight of, that every evil inflicted beyond that which 
 is necessarily in-.luded in the sentence, is illegal, is cruel, is 
 tyrannical. Hence the care in the codes that are submitted, 
 first, to make the judge confine himself in his sentence strictly 
 within the limits of the discretion that is given him, and to 
 exercise that discretion as much as possible by the application 
 he general rules that are prescribed to guide his judgment ;
 
 10 fXTROPUCTI.ON, 
 
 and afterwards, when he. has pronounced, to take away all 
 other discretion that might alleviate, increase, or in any man- 
 ner alter, the punishment, except in the cases specially provi- 
 ded for. In the case of simple imprisonment in close custody, 
 these rules and exceptions, it is thought, will be found to answer 
 these ends. This grade of punishment is the last and highest of 
 those inflicted for misdemeanors ; as it is intended by the pe- 
 nal code to approach the severity, but not to be attended with 
 the degradation, of penitentiary confinement in solitude, so the 
 code of prison discipline, to give effect to this distinction, has 
 prescribed a treatment that should mark, both to the sufferer 
 and to others, that, although the law punished his act as an 
 offence, and doomed him to a prison for punishment, and to so- 
 litude and reflection for repentance, yet it does not confound 
 his offence with those which, by the general consent of the ci- 
 vilized world, has been characterized as infamous. This im- 
 portant distinction, fully discussed in the preliminary report 
 to the penal code, is referred to here, only to mark the reason 
 of the different places assigned to these two species of close 
 custody, and to account for the different discipline by which 
 they are respectively regulated. 
 
 We come now to the beaten ground of penitentiary disci- 
 pline. The first remark necessary to explain the nature of that 
 system I have ventured to recommend, is this : that the penal 
 code assigns this punishment to no offences but such as suppose 
 in the offender a depravity and corruption of mind which re- 
 quire the application of reformatory discipline as well as pun- 
 ishment — they must not be separated. And with the respect 
 due to the great writers who have devoted their talents to this 
 interesting subject, it may be permitted perhaps to suggest, 
 that most of them err in considering the true end of penal 
 laws to be either punishment alone, or reformation alone. A 
 good system must combine them : and the gre?t excellence of 
 the penitentiary plan is, that the process of reformation cannot 
 be carried on but by privations and sufferings, which, if they 
 do not succed so as to reform, must necessarily deter from a 
 repetition of crime in as great a degree as any other bodily in- 
 fliction could. If the reformation is complete, we have the 
 double assurance arising from the moral restraint and the re»
 
 INTRODUCTION. 41 
 
 membrance of the physical as well as mental suffering. As an 
 example to deter others, penitentiary imprisonment has been 
 considered to be defective in this, that here the real is greater 
 than the apparent suffering ; whereas, it ought to be directly 
 the reverse ; the apparent should exceed the real pain ; because 
 the object of deterring others would be attained with as little 
 injury as possible to the sufferers — it being a principle that no 
 nore evil than is necessary to produce that effect, ought to be 
 Inflicted. The principle is true when modified so as to require 
 '.he real suffering to be sufficient for deterring the criminal 
 himself, and the apparent not to be so great as to shock by a 
 jelief that it is cruel or disproportioned to the offence : but is 
 :he application of it to penitentiary imprisonment well made ? 
 The prisoner is not, say those who use this argument, always 
 exposed to view; and, when he is seen, his appearance may 
 not indicate the suffering which he undergoes. The misery of 
 a restraint for years, perhaps for life, cannot show itself in the 
 few moments of a casual visit ; he appears well fed, well 
 clothed, and the labour which he is seen to perform is moder- 
 ate; there is nothing therefore in the aspect of the man to 
 show the wretchedness that must be created by a whole life 
 doomed to forced labour and degrading subjection. In this 
 reasoning, however, we lose sight of two operations ; the one 
 go'mg on in the mind of the convict, the other in that of the 
 man upon whom his punishment is intended to be as an ex- 
 amole ; both of which essentially lessen the force of this ob- 
 jection. By the first, the sufferer becomes by habit if not re- 
 conciled to his punishment, at least much better able to bear it. 
 Some " strange comfort" finds its way into his cell, and illu- 
 minates it with a hope, which, though long deferred, does not 
 always sadden the heart : employment interrupts uneasy 
 thoughts during the day, and produces the total oblivion of 
 them by sound sleep at night ; and the misery of confinement 
 for life, spread in equal proportions over each day, is so much 
 less in any particular time, that, in many cases, the apparent 
 is greater than the real suffering of the convict. On the other 
 hand, he who is tempted to offend, and may be restrained by 
 the fear of punishment, will add to that which he knows to 
 exist, but which he does not see, all those horrors by which
 
 4$ INTRODUCTION. 
 
 mystery always aggravates apprehended evils. Circumstances;, 
 too, may be superadded, to strike the imagination and increase 
 this effect, without increasing the real suffering of the prison- 
 er, while they augment its apparent intensity. Thus impri- 
 sonment, even tested by this rule, is far from being so ineffi- 
 cient an engine of punishment, whether considered as the 
 means of deterring the offender himself or others, as the ob- 
 jection supposes. And, even if we should discard the idea of 
 reformation, penitentiary imprisonment has advantages which 
 few other modes of punishment possess. It is permanent ; the 
 prison is always seen ; and even if we do not visit its gloomy 
 cells, the imagination will people them with tenants of its owr. 
 creation, more squalid in appearance, and hopeless and deject- 
 ed in mind, than the real culprits who inhabit them ; these toe 
 will have enough of suffering, (discarding any but that author- 
 ized by law,) to leave a lasting impression, and to prevent, if 
 any thing short of reformation can prevent, a repetition of 
 «-uilt. Whatever advantages penitentiary imprisonment, how- 
 ever, may possess as a punishment, it is certain that all pun- 
 ishments, considered merely as such, have failed in preventing 
 offences : and the severest have always, without exception, 
 been found the least efficacious. But, if punishment alone is 
 inefficient, the reformation of the offender, if it were possiUe 
 to effect it without punishment, would be so in the same or a 
 o-reater degree ; the reformation of one offender would have 
 little effect on his fellows, unless indeed as an additional in- 
 ducement to proceed : but to refute this argument is nugatory; 
 because no means of reformation have been proposed, or can 
 well be imagined, that can be applied without imprisonment 
 or other restraint ; but imprisonment or restraint is an evil to 
 the sufferer, and all evil imposed in consequence of crime is 
 punishment ; all reformatory discipline therefore: is necessarily 
 connected with punishment ; and it would, but tor one consi- 
 deration, be investigating the truth of a theory, inapplicable to 
 the subject, if found to be true, were we to inquire whether 
 reformation ought to be the sole object of penitentiary discipline. 
 The consideration which alone renders the inquiry proper, 
 and at the same time highly important, is this : that if refor- 
 mation of the offender be the onlv object, and the example of
 
 INTRODUCTION. 4 J 
 
 the punishment is not to be considered, then the endeavour, in 
 establishing a mode of discipline, should be to render it as light 
 as is possible, consistent with the end to be attained, which, 
 by the argument, is reformation alone ; because it is a true 
 principle, that no greater evil ought ever to be inflicted than is 
 necessary to the end ; and therefore, if some Legislator, a pro- 
 selyte to this doctrine, should believe that mild persuasion and 
 indulgence were better instruments of reformation than coer- 
 ced labour and restraint, and should act on this belief, the ex- 
 ample of the punishment to deter, would be lost ; and though 
 one convict might go out a real or pretended saint, seven sin- 
 ners would pursue his track of profligacy, secure that, even if 
 detected, instead of punishment they would receive only ad- 
 vice and indulgence. The doctrine, therefore, that reforma- 
 sion is the sole end of penitentiary punishment, deserves to be 
 examined. If it mean the reformation of the culprit, and 
 of all who might follow his example, (as the language used by 
 one of its advocates* would perhaps justify us in believing,) 
 the dispute is one only of words : for, if the punishment of 
 one, or the reformation of one, prevents the other from com- 
 mitting the crime, it must be because he fears the evil of the 
 reformatory discipline ; he is then deterred by the example ; 
 and we arrive by different roads to the same point. But, more 
 fairly considered, the argument is this : crime is an evil ; pu- 
 nishment is an evil ; to punish, therefore, is to multiply in- 
 stead of diminishing it, unless it will deter the offender as well 
 as others : but it is proved, by long experiment, that punish- 
 ment has failed in this effect : therefore it is useless. Again, 
 experience has proved, that severe are much less efficacious 
 than milder punishments ; it is fair then to believe, that the 
 more you diminish the severity of your laws, the more effica- 
 cious will be their operation : and by one consequence further, 
 if crimes decrease in the same ratio with the severity of penal- 
 ties, that it is not the penalty that deters ; and if it does not 
 deter, it is not only useless, but wrong; because we set out with 
 the incontrovertible position, that this is the only legitimate ob- 
 ject of punishment : if crimes have been diminished by jpeui- 
 
 • Roscqr
 
 44 INTRODUCTION. 
 
 tentiary imprisonment, then it could not have been the pun- 
 ishment that operated j it must have been something else, and 
 (hat something should be the great object to keep in view — it 
 ;s reformation. 
 
 A great error at the bottom of all this reasoning is one al- 
 ready referred to, that reformation is considered abstractedly, 
 without any consideration of the means by which it is to be 
 brought about, which is the evil or the punishment of seclu- 
 sion, and which is inseparable from it : another, not less strik- 
 ing, is, that, supposing reformation effectually to prevent a re- 
 petition of the crime by the offender, the reasoning gives us 
 no means of discovering how this will operate to deter others, 
 except through the fear of the reformatory discipline, which, 
 being from its nature a punishment, is discarded by the argu- 
 ment from having any effect. The other fallacies are, first, 
 in placing crime and punishment as evils of the same nature. 
 Crime is an evil operating on society ; punishment, in the just 
 degree that will prevent or lessen crime, so far from being an 
 evil, is a good ; its pain is only felt by the delinquent : the 
 immediate pain of the crime may, perhaps, only affect the indi- 
 vidual sufferer by it; but the alarm it creates, the certainty that, 
 unless repressed, it will be repeated, spreads through the whole 
 community, and the uncertainty who will be its next victim, 
 makes it an evil to all. The error lies in taking that for grant- 
 ed which is in dispute, that the dread of punishment does not 
 deter from offences. And when that comes to be proved, it 
 is done by another fallacy ; there have always been punish- 
 ments, and there have always been and still are offences ; if 
 punishment would prevent them, there would be none. But 
 my argument is, not that punishment will totally prevent, but 
 that it will diminish crimes ; and in order to prove that it has 
 not this effect, it would be necessary to show a state of society 
 in which there was neither punishment nor crime. Besides, 
 to convince us that punishment in its nature can have no effect, 
 it must be shown to have failed when applied in its most per- 
 fect form. But no one pretends that this experiment has been 
 ever tried ; on the contrary, those who contend for its efficacy, 
 when properly applied, have demonstrated, that, throughout 
 the world, it has, in all ages, been wofully deficient. No one
 
 INTRODUCTION", 4§ 
 
 has yet gone so far as to draw the conclusion, that, because 
 mild have generally been found more efficacious than severe 
 punishments, therefore no penalty ought to be annexed to offen- 
 ces ; and yet, if we assert that reformation is the only object, 
 this is the plain and inevitable result: for then every pain, 
 however small, inflicted as a punishment, would be a useless, 
 and therefore an improper evil. 
 
 Imprisonment, therefore, is to be used, in the plan I propose, 
 to punish as well as to reform. But to make imprisonment, 
 especially if coupled with labour, a proper sanction, its details 
 must be strictly defined by the law. Any discretion left to 
 the jailer as to the mode of inflicting it, makes him, and not 
 the Judge, the arbiter of the culprit's fate. He may, without 
 proper limits to his authority, change the sentence of a few 
 year's confinement into the same period of exquisite misery, 
 followed by loss of health or of life ; and lie may do this with- 
 out incurring any penalty : for where a full discretion is given. 
 there can be no penalty except in extreme cases, for its abuse. 
 If he may, at his discretion, inflict stripes for disobedience or 
 want of respect ; if, in the language held from the bench in 
 New York, it is his duty, " by all the means in his power, to 
 make the convicts feel the awful degradation and miser)'' to 
 which their vicious courses had-reduced them," and " that the 
 ordinary sympathies of our nature could not be extended to 
 them ;'' if this be permitted, or especially if inculcated as the 
 duty of the keeper, imprisonment is the worst of all punish- 
 ments, because the most unequal. It is, then, no more the 
 wisdom of the law applied to the case by the discretion of the 
 Judge that apportions the punishment, but the caprice or pas- 
 sion of an individual, in the exercise of the fearful duty of forc- 
 ing a convict to feel the awful misery and degradation of 
 his situation. If labour be superadded as a punishment, the 
 danger of this discretion is greatly increased. The same labour 
 may be misery and death to one, and no more than wholesome 
 exereise to another ; and the greatest abuse and oppression may 
 be justified by enforcing a literal execution of the sentence. 
 The law, then, must, in every particular that can be foreseen, 
 regulate the conduct of those to whose keeping the prisoner is 
 to be committed ; and after every precaution that human pru-
 
 46 INTKODUCXIU>\ 
 
 dcnce can take, the carelessness, or passion, or pride of opinion 
 in the keeper, may greatly counteract the operation of a good 
 system; and his intelligence, firmness, humanity, and strict 
 attention, may correct some of the evils, and supply some of the 
 omissions, which even the best cannot escape. For this reason 
 the importance of this office is inculcated in the text of the 
 code ; and the qualities required for its exercise are pointed 
 out as a guide to the selecting power, and a lesson to him who 
 is chosen; that the one may not commit the fatal error of un- 
 derrating the talents necessary for the employment, and that 
 the other may feel the dignity with which he is invested, as 
 well as the responsibility imposed on him by the law. This 
 was the more necessary in order to counteract a prejudice 
 against the employment of those to whom the custody of pri- 
 sons has been for many ages confided : — a well-founded preju- 
 dice, while the jailer was only appointed to prevent the escape 
 of the promiscuous assemblage of vagrants of both sexes, con- 
 sisting of unfortunate debtors, of innocent or guilty prisoners 
 committed for trial, and of convicted felons awaiting an igno- 
 minious death, who were placed in his custody ; while he had 
 no moral duty to perform, and was the mere Cerberus to guard 
 the doors of a terrestrial Tartarus, such a prejudice was just 
 and unavoidable ; and as one part of the duty of a jailer, to 
 prevent escapes, necessarily continues to be vested in the war- 
 den, the enunciation in the code becomes proper, in order to, 
 break the chain of ideas which might otherwise, from that cir- 
 cumstance, assimilate the character of an office calling for high 
 talents, and honour, and integrity, with that of an employment, 
 the natural tendency of which was to make him who exercised 
 it an extortioner and a petty tyrant. 
 
 I return to the position, from which I may seem perhaps to 
 have digressed, that the law should be so framed as to restrict 
 as much as possible the discretionary power of the keeper ; it 
 must designate the punishment due to the offence, either by an 
 invariable rule, or by a discretion left to the Judge to make 
 one within certain limits. The Judge must apply this rule, 
 by declaring the punishment, if it be fixed ; by apportioning 
 it to the degree of the offence, if he have a discretion. The 
 punishment once ordered, that system is strangely defective
 
 iSTHODL L'ilu>, 47' 
 
 AiHca unnecessarily permits it to be aggravated or alleviated 
 by an inferior officer, at his will. It deserves a worse epithet 
 if it hold out temptations for him to do it ; and the strongest 
 that could be used to express disapprobation, would be merited 
 If it is inculcated as a duty. But the system of social forced 
 labour makes this discretionary power unavoidable: for nothing, 
 we are told, (and I believe told truly,) nothing but the lash 
 can preserve the proper discipline in such an association. The 
 punishment, then, necessary to execute the sentence of the 
 law, on this plan, so far from being directed by the sentence; 
 is one expressly prohibited by the law under which that sen- 
 tence is pronounced, and therefore ought never enter into any 
 subordinate part of the system. What could be more incon- 
 gruous than to snatch the scourge from the hands of justice, to 
 place it in those of caprice j to declare it too severe, and de- 
 grading, and demoralizing, and unequal, to be applied as a 
 punishment for ckime, at the sound discretion of the Judge, 
 and, at the same time direct, that it shall be inflicted for dis- 
 obedience to a subaltern officer of a prison, at his pleasure ? I 
 could not, therefore, offer any plan of imprisonment that would 
 make this absurdity necessary. Other disadvantages, which 
 are inseparable from this discipline, have been detailed when I 
 described that of the New York prisons, of which it forms so 
 prominent a feature. I discard it, therefore, being firmly con- 
 vinced that, as an instrument of punishment, it is not only de- 
 fective and dangerous, but that it cannot be brought to produce 
 that reformation which is one of the essential parts of my plan. 
 But social labour, whether general or in classes, (if those clas- 
 ses are at all numerous,) cannot be carried on without it, unless 
 the security and order of the prison be put at hazard. Social 
 labour, therefore, must be abandoned, or so modified, and ad- 
 mitted with such precautions, as to render this anomaly unne- 
 cessary. The manner in which this has been attempted, re- 
 quires some previous examination of the principles on which 
 it is founded. 
 
 We have, in former parts of this report, considered the 
 question whether punishment, as an object distinct from refor- 
 mation, should not enter into the sanction of penal laws ; and 
 were brought to the double conclusion, that it was necessary,
 
 $8 INTRODUCTION. 
 
 and that no reformation could be produced without it. Impri- 
 sonment has been examined as a means of inflicting punish- 
 ment; and in this and in the introductory report to the penal 
 code, has been compared with other corporal punishments, and 
 been found to possess, in a greater degree than any other, the 
 essential properties to render it effectual. Here we need only 
 add, that there is no other means by which a reformatory process 
 (necessarily requiring time and a succession of operations) can 
 be carried on ; no labour, no instruction, without detention ; 
 no reformation without employment, without instruction, reli- 
 gious, moral, and literary. It must be remembered that we 
 are now speaking of the prison discipline proper for convicts, 
 for men already corrupted ; to whom, for the most part, la- 
 bour was necessary for support, and who resorted to crime in 
 order to avoid it. Labour consists of a number, of a succes- 
 sion, of bodily exertions, always painful when first endured^ 
 becoming tolerable only by the habit of making them, and ne- 
 ver voluntarily resorted to but from the hope of some enjoy- 
 ment they are to produce; these two causes combined give to 
 an occupation painful in itself, all the characteristics of a plea- 
 surable pursuit; habit destroys the some of bodily pain ; hope 
 anticipates the reward it is to bring, identifies the enjoyment 
 with the means of procuring it, and, by a wise use of the fa- 
 culties bestowed by our beneficent Creator, labour becomes 
 cheerful, and its pain a pleasure. This might be further illus- 
 trated by investigating the cause of pleasure resulting from the 
 chase, and other laborious recreations, which are often volun- 
 tarily pursued so far as to become toilsome and fatiguing in a 
 degree not frequently suffered by the severest labour. In 
 these pursuits, indeed, the exhilarating effects of fresh air, of 
 society, and a view of the beauties of nature, give a present 
 enjoyment that is not found in daily employment; but these 
 would never induce us to go beyond the point of agreeable ex- 
 ercise ; they are pushed into fatigue by the causes that have 
 been stated, and by the self-satisfaction arising from a consci- 
 ousness of dexterity and skill. The anticipation of the ap- 
 plause he will receive, of the festivity, or the domestic com- 
 fort, that awaits his return, is identified in the mind of the 
 sportsman with the fatigue he undergoes, the pain of whieh.
 
 JXTKODUCTllj.N 49 
 
 iiabit has already alleviated ; so that the toils and the pleasures 
 of the chase have become terms that are nearly synonymous. 
 
 The great painter of human passions has beautifully delinea- 
 ted this association, in the picture of a young lover toiling 
 through a servile employment, with the hope of being re- 
 warded by the presence of his mistress, and referring the pa- 
 tience and even the pleasure with which his toil was endured 
 to this very illustration : — 
 
 There be some sports are painful, but their labour, 
 Delight in them sets off. 
 
 Whenever this association of ideas is broken, labour is re- 
 garded as an evil unmitigated by any alleviating circumstance ; 
 no habit will induce a continuance of it; and it will never be 
 resorted to but in moments of pressing distress, the idea of 
 which then becomes incorporated with it and embitters its 
 pains. Labour forced by stripes must always produce this 
 dreadful concatenation of ideas ; and whenever the coercion 
 ceases, the natural aversion to fatigue will combine with the re- 
 membrance of the evils with which it was embittered, and 
 make the culprit fly to vice to forget, or to crime to avoid it. 
 
 If these reflections be well founded, employment should be 
 offered as an alleviation of punishment, not superadded to ag- 
 gravate it. Although labour is painful, yet the separate exer- 
 tions, of a succession of which it is composed, are not so in 
 themselves ; it is their repetition only which makes them irk- 
 some : there is an innate love of action in human nature, 
 which renders its restraint the principal evil attending impri- 
 sonment : and involuntary idleness, unbroken by any mental 
 or bodily occupation, creates a degree of suffering, which (set- 
 ting aside acute physical pain) can only be aggravated by unin- 
 terrupted solitude. Solitude without physical employment 
 may be rendered tolerable, if the mind can be diverted from 
 its own reflections by receiving intellectual instruction from 
 others, or amusement from books : these, also, except so far as 
 concerns a future life, are indulgences withheld from the con 
 vict by the tenor of his sentence. 
 
 Next to the privations of liberty and employment, and per 
 is superior ; n intensity to the last, is thai r 'f Uir
 
 60 INTRODUCTION. 
 
 diligence of the appetite for food and drink: to inflict this, so 
 far as to make the patient suffer by hunger or thirst, would be 
 at war with the first principles of this system ; it would be 
 causing an evil, the degree of which could never be measured 
 so as to be directed by the sentence ; and if left to the discre- 
 tion of an executive officer, would cause a suffering not direct- 
 ed by the law or the Judge ; and in most cases would change 
 a sentence of confinement into one carrying with it loss of 
 health or of life : food, therefore, wholesome in quality, and 
 in abundance sufficient to satisfy the appetite and support life, 
 but of the plainest kind, without any variety to stimulate, or 
 delicacy to gratify the appetite, is allowed to the convict; but 
 it is all he is entitled to ; and thus another privation is added 
 to those alreadjr enumerated, as concomitants of the punish- 
 ment directed by law. But this is not all : men desire not 
 only liberty, recreation, and the indulgence of the appetite ; 
 but also a shelter, and clothing, fitted to the variations of the 
 seasons : and, in civilized life, there are certain refinements of 
 indulgence in these articles, the privation of which becomes a 
 severe punishment, when we are reduced to what is strictly 
 necessary. The action of these natural inclinations, their re- 
 striction, and partial indulgence, constitute the moving power 
 of my system of punishment and reformation. 
 
 Imprisonment, solitude, want of occupation, either for the 
 mind or body, coarse aliments, hard lodging, clothing of the 
 roughest kind, are the evils of which punishments are compo- 
 sed. Their duration, their intensity, their cumulation, are the 
 means provided by the Penal Code for adapting them to the 
 different offences : their alleviation in different degrees, are 
 those designated in the Code of Prison Discipline for producing 
 reform. 
 
 If the reasoning already employed, be correct, no succession 
 of involuntary acts, to which adults may be coerced, is likely 
 to produce permanent habits of reformation: they must be the 
 effect of the will, operated upon by the judgment, producing a 
 conviction that such acts are beneficial : and experience must 
 enforce this conviction, by giving the actual enjoyment of 
 some, and the certain hope of other, benefits, which are the 
 result of these acts. With evil habits, it is different: for the
 
 INTRODUCTION. 
 
 most part they are acquired by a repetition of acts procuring 
 sensual enjoyment; and the judgment has so little agency In 
 producing them, that it must be silenced or perverted, before 
 the acts of indulgence are done or repealed. It is for this rea- 
 son, that the work of reformation is more difficult than that of 
 perversion : the one requires intellectual power sufficient to 
 prefer a distant and moral good, to a present and physical en- 
 joyment: the other coincides with the natural propensity for 
 present enjoyment, reckless of what an uncertain futurity may 
 produce. And for this reason, also, it is, that the work of re- 
 formation is slower in its operation than that of corruption. 
 A. single instance, in which distress has been alleviated, or ex- 
 pected good has been realized, by labour or exertion, would 
 have but a temporary effect: the operation must be repeated, 
 and be made always to produce the same result, and the judg- 
 ment must be thoroughly convinced that this result is invaria- 
 ble, before it can counteract in the will the natural preference 
 of present enjoyment to future good. But to produce this ef- 
 fect, the mind must be improved by intellectual instruction; it 
 must be taught that there are other pleasures besides those of 
 sense : and religion must be brought to bear its part in the 
 work of amelioration. The deep solitude of the prisoner's 
 cell, the awful impresssion which must be made on Ids mind, 
 by contrasting the fleeting enjoyment produced by his crime. 
 with the lasting evil in which he is plunged by its consequen • 
 ces; the privation of factitious excitements; with no compa- 
 nions to applaud his perseverance in wrong ; no means ot 
 drowning reflection by intemperance, no acute or dispropor- 
 lioned pain to brace him up against real or fancied oppression : 
 the heart must necessarily be softened, the spirit subdued, and 
 the mind prepared to receive those great truths, which, under 
 such circumstances, may be inculcated to the highest advan- 
 ce, more especially when this, combined with literary in- 
 struction, is offered, not as a part of the sentence, but as an al- 
 leviation of its rigor. 
 
 The spring, then, which sets in motion my whole mai hinfefi 
 for producing reform, is this: that all the acts, which, by their 
 succession, are to produce habits of good, are to he performed 
 .-. offered as all I c of M
 
 58 INTRODUCTION. 
 
 sentence: the will must act, or the repetition will produce no 
 effect But, to operate on the inclination, sufficient induce 
 ments must be held out to overcome the natural repugnance to 
 labour: and this brings me back to the detail of those modifi- 
 cations of imprisonment, and its concomitant labour, which I 
 offer instead of the strict seclusion of the Pennsylvania,* or 
 the severe discipline of the New York system. 
 
 To understand them, a clear idea must first be given of the 
 place of confinement. It consists of an arched cell for each 
 prisoner, of small dimensions, but well ventilated, and com- 
 fortably warmed, communicating with a small court, surround- 
 ed with a high wall. The sentence of the law is confinement 
 to the cell, supported by wholesome but coarse food, in suffi- 
 cient quantity to satisfy hunger, but without occupation, and 
 with no other society than the attendance of those officers who 
 minister to the physical wants of the prisoner, and to his reli- 
 gious instruction. Privation of employment is denounced as 
 a part of the punishment ; and this circumstance, alone, would, 
 with most men, cause it to be considered as an evil, and the 
 experience of its effects will soon cause it to be felt as such ; of 
 course it will be connected with the idea of suffering; and oc- 
 cupation being denied, will, from the propensity to wish for 
 that from which we are expressly debarred, be estimated as a 
 good, and desired with an intensity proportioned to the strict- 
 ness and length of the privation. To strengthen this natural 
 desire, other inducements are offered. He who labours, less- 
 ens the expense of his support; he who works skilfully and 
 diligently, may more than repay it. The advantage of this 
 beneficial result must be felt by the prisoner as well as the 
 State: if the proceeds of his work should not be sufficient to 
 cover his expenses, it yet produces for him a better diet; and 
 if persevered in, and accompanied with good conduct, for cer- 
 tain probationary periods of six and twelve months, during 
 which he is permitted in the day to leave his cell and pursue 
 
 * Mr. Roberts Vaux, one of the Commissioners for building the new prison, a 
 gentleman to whose instructive publications and conversation I am indebted for 
 much useful information, has informed me, that the plan of strict seclusion, which 
 I have quoted, has never received the sanction of the Legislature, and that there 
 is a probability it will be so modified as to admit labour and instruction
 
 INTRODUCTION 
 
 his solitary employment in the court, he is indulged with the 
 privilege of working, and receiving instruction, in a small 
 class, not exceeding ten; but, if he acquires such proficiency 
 in his business, as to make the proceeds of his industry exceed 
 the expense of his support, he is allowed the immediate en- 
 joyment of a part, to be laid out in books, or such other arti- 
 cles as he may desire. Those of food or drink are excepted, 
 in order to avoid irregularities, that would otherwise be una- 
 voidable ; and the residue of the surplus is an accumulating 
 fund to be paid to him on his discharge. To give the greater 
 effect to these inducements, they are not offered to the convict 
 on his commitment to the prison. First he must know and feel 
 the unmitigated punishment. His own reflections must be his 
 only companions for a preliminary period, during which he is 
 closely confined to his cell. He must live on the coarse diet al- 
 lowed to the unemployed prisoner ; he must suffer the tedium 
 arising from want of society and of occupation ; and when he 
 begins to feel that labour would be an indulgence, it is offered 
 to him as such. It is not threatened as an evil, nor urged upon 
 his acceptance as an advantage to any but to himself: and when 
 he is employed, no stripes, no punishments whatever, are in- 
 flicted, for want of diligence. If not properly used, the indul- 
 gence is withdrawn ; and he returns to his solitude and other 
 privations, not to punish him for not labouring ; but merely 
 because his conduct shows that he prefers that state to the en- 
 joyment with which employment must always be associated in 
 his mind, in order to produce reformation. If it has been 
 shown that involuntary acts of employment will not produce a 
 lasting habit, tiien, if there be any such as will not accept these 
 alleviations of their imprisonment, upon them the imprison- 
 ment must operate solely as a punishment. But experience 
 shows that these exceptions will (if an)') be very few ; for em- 
 ployment, even under the lash, is in most cases preferred to 
 solitude. 
 
 It is no unimportant part of this plan, that education and in- 
 tellectual improvement, as well as mere physical enjoyments, 
 are held out as inducements for ihc exercise of industry, skill, 
 and good conduct. These are to be rewarded by the use of 
 books combining entertainment, with instruction; the instru-
 
 5 J mTRODlieTlON. 
 
 mcnts, and oilier means, of exercising the mind in science, or 
 the hand in the delicate operations of the fine arts ; of devel- 
 oping talent, or improving skill. Such pursuits offer, perhaps, 
 the most efficient means of reformation, they operate hy re- 
 conciling the convict to himself, which is the first and most 
 difficult point to he gained. The daily exercise of mental 
 powers, the consciousness of progress in useful knowledge, 
 must raise him in his own estimation : and this honest pride, 
 mice set at work, will do more to change the conduct and pu- 
 rify the heart, than any external agency, however constantly 
 or skilfully applied. 
 
 Let it not he said, that this is a theory too refined to be adapt- 
 ed to depraved and degraded convicts. Convicts are men. 
 The most depraved and degraded are men : their minds are 
 moved by the same springs that give activity to those of others, 
 they avoid pain with the same care, and pursue pleasure with 
 the same avidity, that actuate their fellow mortals. It is the 
 false direction, only, of these great motives, that produces the 
 criminal actions which they prompt. To turn them into a 
 course that will promote the true happiness of the individual, 
 by making him cease to injure that of society, should be the 
 great object of penal jurisprudence. The error, it appears to 
 me, lies in considering them as beings of a nature so inferior as 
 to be incapable of elevation, and so bad as to make any amelio- 
 ration impossible: but crime is the effect principally of intem- 
 perance, idleness, ignorance, vicious associations, irreligion, 
 and poverty — not of any defective natural organization ; and 
 the laws which permit the unrestrained and continual ex- 
 ercise of these causes, are themselves the sources of those 
 excesses tchich legislators, to cover their own inattention, 
 or indolence, or ignorance, impiously and falsely ascribe to 
 the Sujireme Being, as if he had created man incapable of 
 receiving the impressions of good. Let us try the experi- 
 ment, before we pronounce that even the degraded convict can- 
 not be reclaimed. It has never yet been tried. Every plan 
 hitherto offered, is manifestly defective, because none has con- 
 templated a complete system, and partial remedies never can 
 succeed. It would be a presumption, of which the reporters deep 
 sense of \m own incapacitv renders him incapable, wore bo to
 
 INTRODUCTIO.V 
 
 say, that what he offers is a perfect system, or to think that it 
 will produce all the effects which might be expected from a 
 good one. But he may be permitted, perhaps, to believe, that 
 the principles on which it is founded, are not discordant ; that 
 it has a unity of design, and embraces a greater combination of 
 provisions, all tending to produce the same result, than any that 
 has yet been practised. Whether those principles are correct, 
 or the details proper to enforce them, the superior wisdom of 
 the Legislature must determine. But to think that the best 
 plan which human sagacity could devise, will produce reforma- 
 tion in every case ; that there will not be numerous exceptions 
 to its general effect ; would be to indulge the visionaiy belief 
 of a moral panacea, applicable to all vices and all crimes ; and al- 
 ? hough this would be quackery in legislation, as absurd as any 
 that has appeared in medicine, yet, to say that there are no 
 general rules by which reformation of the mind may be pro- 
 duced, is as great and fatal an error, as to assert that there are in 
 the healing art no useful rules for preserving the general health 
 and bodily vigour of the patient. 
 
 A reference to the text of the code is all that is necessary 
 for the details by which it has been endeavoured to temper the 
 rigour of solitary confinement, by useful employment and in- 
 struction, as a favour, to be withdrawn when neglected or 
 abused ; by the hope of enjoying society after a probationary 
 period ; and by the immediate rewards of labour and skill, in 
 procuring social comforts and other conveniences. The in- 
 dulgence of society in labour and instruction, which is offered 
 as the greatest inducement to good conduct, has its value en- 
 hanced by the delay and perseverance in industry, which are 
 prescribed as necessary to its attainment ; and, when granted, 
 the number in each class is so small, as to preclude the neces- 
 sity of any severe discipline to maintain order, which it is sup- 
 posed may be preserved by the precautions that are prescribed, 
 by the fear of forfeiting the privilege, and by the advance to- 
 wards reformation, which must be made before the indulgence 
 is granted. 
 
 The average term of confinement may be assumed to be 
 from four to six years for such crimes, affecting properly, as 
 '"'■ attended with no circumstances in their commission to
 
 Oti iSTRJDBtN rio> 
 
 show greaier depravity than the crime itself supposes. Of this 
 time, six months must necessarily he spent in solitude, with 
 no alleviation hut lahour ; twelve more in the same confine- 
 ment, unless a desire for intellectual improvement, (the evi- 
 dence of the first step towards reform,) should have diversified 
 it by intervals of social instruction ; and the remainder of the 
 term, in continuing those lessons, and in perfecting that dex- 
 terity in mechanical employment which is best acquired in so- 
 ciety. A period thus passed, without any possibility of cor- 
 rupting associations, with the daily experience of the actual 
 enjoyments gained by diligence, hearing no precepts but those 
 of religion, morality, and science, and those inculcated not in 
 the harsh language of reproach, but in the mild yet firm ac- 
 cents of advice, pronounced by men who take an interest in 
 the welfare of the convict ; and with the cheering prospect of 
 regaining, by honest industry, that good opinion of societ)', 
 which no one ever lost without regret : a period thus passed, 
 it is confidently believed, must efface bad impressions, must 
 create lasting habits of industry and virtuous pursuit, must 
 discharge the subject of this discipline from the prison a bet- 
 ter, a wiser, and a happier man than he entered. But these 
 happy effects will be counteracted ; the care, labour, and ex- 
 pense, of your reformatory discipline, will have been uselessly 
 incurred ; if your proselyte to virtue and industry is to have 
 the one exposed to the seduction of his former associates, and 
 the other rendered useless by the want of means to exert it. 
 It will be hi vain that you have given him the skill necessa- 
 ry for his support, if no one loill afford him an opportuni- 
 ty of using it, or that you have made him an honest man, 
 if all the world avoids him as a villain ; his relapse is cer- 
 tain, unavoidable, and his depravity will be the greater, from 
 the experience that reformation has been productive only of 
 distrust, want, and misery. " Seven evil spirits" will take 
 possession of the mind that has been " swept and garnished" 
 by your discipline, and " the last state of that man shall be 
 worse than the first." To avoid this result, so destructive of 
 the whole system, an asylum is provided in the House of Re- 
 fuge and Industry, (the other departments of which have 
 been alreadv described. ) Here the discharged convict may
 
 INTRODUCTION. CH 
 
 find employment and subsistence, and receive such wages as 
 will enable him to remove from the scenes of his past crimes ; 
 place him above temptation ; confirm him in his newly ac- 
 quired habits of industry; and cause him safely to pass the 
 dangerous and trying period between the acquisition of his li- 
 berty and his restoration to the confidence of society. Inde- 
 pendently of this resource, the industrious convict receives, at 
 his discharge, a proper proportion of his surplus earnings: he re- 
 ceives friendly advice as to his future pursuits, and a certificate 
 (if he has merited it) of such conduct as will entitle him to con- 
 fidence. The consequences of reconviction are solemnly repre- 
 sented to him : and his conduct, if he remain in the neighbour- 
 hood of the prison, is carefully watched, so that if he return 
 to habits of idleness and intemperance, his career to crime 
 may be stopped by a commitment to the House of Industry as 
 a vagrant. The cause, the temptation, or the excuse for re- 
 lapse, being thus removed, it is hoped that instances of return 
 to vicious pursuits will become more rare ; and that many will 
 become useful members of society, who, under the present 
 system, either burthen it by their poverty, or prey upon it by 
 their crimes. The House of Refuge is rendered the more ne- 
 cessary, because a man of prudence will no more receive or 
 employ a convict discharged from one of our present peniten- 
 tiaries, than he would shut up with his flock a wild beast es- 
 caped from its keepers : but the reformatory plan, once fairly 
 in operation, its principles studied, developed, steadily adher- 
 ed to, improved by the light of experience, and its beneficial 
 effects upon morals perceived, the man who has undergone its 
 purifying operation will, in time, be no longer regarded with 
 fear or contempt; and society, by confiding in his reformation, 
 will permit him to be honest ; the House of Refuge will then 
 become less necessary, and its expense of course diminished.' 
 
 * This theory is confirmed by experience in the House of Refuge at Ncvfr 
 V'ork. Although admission into that school is obtained only by vagrancy on 
 conviction; yet, such reliance is placed upon the reformatory effect of the disci 
 pline, that the applications for apprentices of both sexes are so numerous that 
 they cannot be complied with. Nor is the confidence misplaced, a single in- 
 only having been known in which the employer w;is dissatisfied with the 1 conduct: 
 •->f his apprentice ASu making ;'il due aUowanci
 
 5S INTRODUCTION. 
 
 Before I quit the consideration of this establishment, it may 
 be necessary to dispose of an objection sometimes raised to it, 
 as well as to the Penitentiary: that the products of mechanical 
 operations, which may be carried on there, will be sold cheap- 
 er than they can be afforded by the regular mechanic, who is 
 burthened with the support of a family, with rent, taxes, and 
 other charges, and thus injure the innocent in order to find 
 employment for the guilty. This objection could only have 
 weight if all the convicts were employed in one business, and 
 that in a country where there is a greater supply of labour than 
 there is demand for it ; but here the very reverse of this is the 
 fact. Again, if all the convicts should be employed in a sin- 
 gle occupation, it must be because there is an excess of demand 
 for that species of labour over the supply: and, while that con- 
 tinues, there can be no injury: when that demand is reduced, 
 the business will be abandoned both within and without the 
 prison. As respects the public interest, there can be no doubt ; 
 for the question reduces itself to this : Whether the convicts 
 are to be maintained in idleness, or suffered to contribute be- 
 labour to their own support ? And even as regards particular 
 classes of mechanics, the same reasoning which would prevent 
 their trade being carried on in prison, would go to show that 
 it ought to be limited without. But the best answer to the ob- 
 jection is, that experience has never realized any of the evils 
 that have been apprehended. 
 
 Having passed through the different stages of confinement 
 with the prisoner committed for a term ; having shown the 
 hopes and fears, the occupation, instruction, and discipline, by 
 which he is to be punished and reformed ; and, having un- 
 locked the door of his cell, and restored him to the world a 
 renovated man ; we must return, once more, to the interior of 
 the prison, to visit those who have by their atrocity rendered 
 it unsafe to trust them in that society, the very existence of 
 which their crimes have put to hazard. They are those whose 
 offences are now punished with death. Reformation enters no 
 farther into their treatment than as it concerns them individu- 
 
 ihe same effects may reasonably be expected _ in a great degree., upon adults, by 
 •] l^njrer and severer colirse of d!< cinlinn
 
 IJiTJiODUCTIOX. 6t) 
 
 ally. Shut out for ever from civil society, its iaws provide no 
 means for their future employment; it is indifferent as to their 
 habits, and solicitous only that, for their own sake, they should 
 make their peace with Heaven : for, in avoiding to punish 
 with death, it would not "kill the soul." 
 
 The confinement of this class is intended for two purposes 
 only: First, by actual restraint, to secure society against a 
 repetition of the crime. Next., to deter others from commit- 
 ting a similar one, by the severity of the punishment. These 
 two purposes are attained by absolute seclusion, under circum- 
 stances varied according to the enormity of the offence. These 
 circumstances are calculated to strike the imagination with hor- 
 ror for the crime, without awaking any dangerous sympathy 
 for the sufferer. A gloomy cell ; inscriptions recording the 
 nature of the crime and the intensity of the punishment ; so 
 much of mystery as excites the imagination ; real suffering 
 enough to deter when the veil is withdrawn, not so much as 
 to enlist the feelings of the community and make them arraign 
 the cruelty of the law; perfect security from escape ; a grada- 
 tion in the discipline, to show, by strong features., the different 
 degrees of atrocity of the crime ; such are the characteristics 
 of the punishments substituted for that of death, now inflicted 
 for the different species of capital homicide. These convicts 
 are considered, for many purposes, to be as much dead to the 
 world, as if no commutation of their former punishment had 
 been made: their propert} r is divided among their heirs: they 
 are buried in their solitary cells, and their epitaph is contained 
 in the inscription that records their crime, and the daily renew- 
 al of its punishment. Their existence is preserved by the po- 
 licy of the law, for reasons which it has proclaimed ; and, al- 
 though they are kept within the reach of the pardoning power, 
 yet that policy will be counteracted by any remission of the 
 sentence, the case of acknowledged innocence alone excepted. 
 
 Those who are confined for life, for a repetition of minor 
 offences, are considered more in the light of incurables, than 
 atrocious offenders whose ferocious disposition makes perpetual 
 restraint necessary for the peace of society. Yet a very long 
 and uninterrupted curative process, may sometimes succeed in 
 b deemed desperate : and the subjects, o r
 
 [KTEOIMJG'MDW. 
 
 scrvatiou have, therefore, the same advantages ot' instructiou 
 anil employment offered to them, that are given to the other 
 convicts, in the hope that, by unequivocal evidence of refor- 
 mation, after a very long probatory period without relapse, 
 they may be discharged by the pardoning power. It is highly 
 important, however, that this should not be lightly or frequent- 
 ly exercised. Few circumstances have tended more directly 
 to disappoint the friends of the penitentiary system, than the 
 counteractive operation of this prerogative : parsimonious le- 
 gislative provisions have furnished an excuse for its exercise, 
 lo a degree, that renders every attempt to punish or reform by 
 imprisonment, equally abortive ; and, if the unhappy facili- 
 ty of granting pardons, he not checked, it is in vain to hope 
 that the best organized plan tvill produce uny good effect. 
 Restraint will be suffered with impatience ; instruction will be 
 unheeded ; labour neglected ; and counsel derided, while the 
 mind is kept in the- feverish state of expectation, which the 
 daily release of fellow convicts, more guilty, perhaps, but bet- 
 ter befriended, must produce on those who remain. In some 
 Stales, this abuse has become so prevalent, that the culprit has 
 not only in his favour the chance of escaping detection, or, if 
 detected, the chance of acquittal ; but, after conviction, it has 
 become more probable that he will be discharged by pardon,* 
 than that his sentence will be executed. With so many chances 
 in his favour, the felon continues his game without fear or 
 scruple. The prison loses its terrors as a place of punishment: 
 and its discipline becomes a mockery to those who remain, 
 cursing their ill fortune, and hoping that, in the next lottery of 
 pardons, they may gain the prize of discharge. Before I pass- 
 ed from the penitentiary discipline to another branch of my 
 subject, it was necessary to advert to this radical, and, unfor- 
 tunately, in most of the States, this Constitutional evil, to 
 which, of course, no other remedy can be applied by the Le- 
 gislative, than the voice of expostulation with the Executive 
 power. A very able report on this subject, made by the di- 
 
 * In five years, seven hundred and forty convicts were discharged by 
 pardon, from the New York prison, and only seventy-three by the expiration 
 of their sentences, making the chance of impunity after conviction, more than ten 
 to one in favour of the convict
 
 iNTRGDl. Llu.^ 
 
 lection oi A society for the pretention of pauperism, in the 
 City of New York, in the year 1822, contains the opinions of 
 the most celebrated jurists and magistrates in every State in 
 the Union, all of whom concur in stating frequent pardons to 
 be the greatest obstacle that the penitentiary system has to en- 
 counter. Out of it has arisen another evil ; soliciting pardons, 
 has, in some places, become a business: men who disgrace an 
 honourable profession, hang about the doors of the prison, bar- 
 gain with the convict, to be paid, perhaps, out of the proceeds 
 of his crime ; by importunity or false statements, procure the 
 signatures of respectable men to petitions : deceive the Exe- 
 cutive power by false allegations of reformation ; and procure 
 the pardon of the most hardened offenders ; who use their li- 
 berty only to commit new depredations, in the hope of again 
 being released ; and, strange to tell, this hope has been reali- 
 zed after a second and even a third sentence. Out of sixteen 
 committed for a second offence, to the New York Penitentiary, 
 in 1825, eleven had been discharged by pardon; and of those 
 committed in the same year, for a third offence, every one 
 had been previously twice pardoned. To arrest, if possible, 
 the progress of this abuse, which totally counteracts every at- 
 tempt to punish or reform, the text of the Code is made to ex- 
 press the wishes of the Legislature, and a provision is intro- 
 duced, making the soliciting of pardons, for reward, a pun- 
 ishable offence. 
 
 One other institution remains to be described ; one of per- 
 haps quite as much importance as any other in the system. It 
 is the School of Reform ; designed for the confinement, 
 discipline, and instruction of juvenile offenders and youn^ va- 
 grants. Of all the establishments suggested by the charity, 
 and executed by the active and enlightened benevolence of mo- 
 dern times, none interests more deeply the best feelings of the 
 heart. Whether we consider the evil avoided, or the positive 
 good bestowed, it is equally worthy of our admiration. 
 
 The provisions of law have heretofore denounced the same 
 punishment against the first offence of a child, that they 
 awarded to the veteran in guilt: the seducer to crime, and the 
 artless victim of his corruption, were confounded in the same 
 penalty: and that penalty, until lately, was here, and in the
 
 •>. J.YTKOIH CTIDtf. 
 
 jand from wncnco we derive our jurisprudence stiii is — cieau.. 
 We have substituted imprisonment; but our laws make no 
 other distinction between adults and children, than that con- 
 tained in the common law, by which all above a certain age, 
 and that a very tender one, are supposed to have sufficient dis- 
 cretion to know both the law and its penalty; and as to those 
 who have not attained that age, it is a matter of inquiry to be 
 determined by evidence: and an instance is recorded, in which 
 an infant of nine years was convicted and executed for mur- 
 der. For the minor offences, affecting property, indictments 
 against children are frequent: and humanity is equally shock- 
 ed, whether they are convicted, or, by the lenity of the jury, 
 discharged, to complete their education of infamy. In the 
 Penal Code which you have under consideration, some mate- 
 rial changes are introduced on this subject: an age is fixed, be- 
 low which guilt cannot be supposed : and the inquiry as to dis- 
 cretion can only take place when the accused is above that age, 
 but below another, at winch sufficient capacity may always be 
 presumed. It also contains other provisions, which govern 
 the case in which a child does the prohibited act, in the pre- 
 sence, or under the influence of a parent or superior. But, 
 with all these modifications, nothing materially good, under 
 this head, would be effected, if, after conviction, the same dis- 
 cipline were indiscriminately applied to children and adults. 
 The necessity of a different course, whether for punishment, 
 or education, or reform, is so clearly pointed out by nature, 
 that he must be an inattentive observer of her laws, who does 
 not perceive it ; and it should be considered, that when a child 
 of tender age commits an offence against the law of society, he 
 acts, for the most part, in, obedience to one which with him 
 has a paramount force — that of nature — who has given him 
 strong desires to possess, an ardent passion for novelty, and a 
 free spirit, that with difficulty submits to restraint ; while she 
 has withheld that discretion which alone can give a voluntary 
 eontrol over those passions. For acts committed before this 
 discretion is acquired, or when, by the visitation of Provi- 
 dence, it is taken away, it is unjust to punish, although the 
 good of society requires that we should restrain. Paternal, or 
 snv otVr authority that represents it. stands in the place of this
 
 5PRODU0TIC • 
 
 discretion, until it is conferred by instruction, experience, and 
 the natural expansion of the faculties. To this domestic law- 
 giver and judge, is confided, during this interval, the task of 
 a-epressing all the faults of infancy ; and when they become 
 -hurtful to others, he, not the child whom he ought to have re- 
 strained, is answerable ; civilly, if the injury were done with- 
 out his connivance or permission ; criminally, if it were. These 
 are the dictates of most laws, applicable to a period of infancy 
 more or less indefinite, according to different systems ; but, 
 after that period, they all abandon these sound principles, and 
 hold the child personally accountable to the penal law ; and if 
 he has shown dexterity in committing the crime, or used shifts 
 to avoid detection, it is, by the common law, counted sufficient 
 evidence of a consciousness of moral guilt, and of a discretion 
 that ought to have prevented the offence. But they do not 
 consider that the moral sense is, in childhood, produced by in- 
 struction only, and the force of example ; and that, with the 
 children who are generally the objects of criminal procedure, 
 instruction has either been totally wanting, or both that and 
 example have been of a nature to pervert, not form, a sense of 
 right ; so that, if the want of discretion entitles to the protec- 
 tive power of the law, it is due to the adolescence of such child- 
 ren quite as much as it is to their infancy, Either they have 
 parents who entirely neglect the task, or abuse the power given 
 to them by nature, and confirmed by the laws of society ; or, 
 without relations, they are thrown friendless and unprotected 
 into the most contaminating associations, where morality, reli- 
 gion, and temperance, are spoken of only to be derided, and 
 the restraints of law are studied only to be evaded. In either 
 of these cases, these unfortunate victims to the vices of others, 
 have a right to demand that the community shall supply the 
 place of their natural protectors, and teach them the sanction 
 of the law before they are punished for its breach. In a coun- 
 try governed by wise laws, faithfully executed, this class of 
 children would be very small. Moral, religious, and literary 
 education would be brought, in such a country, within the 
 reach of every individual ; and he would be forced to avail 
 himself of these advantages ; ours, in this respect, is not yet 
 eifch a country. We are rapidly advancing towards this rip-
 
 04 .IXTK0DUCTI0>" 
 
 gree oi perfection ; but, until we attain it, the delect in this 
 part of our system increases the obligation on the community 
 to be a father to the fatherless ; to snatch the innocent child 
 from the hands of depraved parents, and the orphan from the 
 contamination of vice and infamy ; and, instead of harsh pun- 
 ishments, inflicted for offences which its own neglect of duty 
 has occasioned, to remove their cause b}' the milder methods 
 of instruction and useful employment. 
 
 The place for the confinement of juvenile offenders, for these 
 reasons, is to be considered more as a school of instruction than 
 a prison for degrading punishment ; a school in which the vi- 
 cious habits of the pupil require a strict discipline ; but still a 
 school, into which he enters a vicious boy, and from which he 
 is to depart a virtuous and industrious youth ; where the invo- 
 luntary vices and crimes with which his early childhood was 
 stained, are to be eradicated, their very remembrance lost ; 
 and, in their place, the lessons inculcated, and the examples 
 given, which would have guided him, had the duties of nature 
 and society been performed. From hence he begins his career 
 of life ; and as it would be unjust to load him on his outset 
 with the opprobrium which would be inseparable from an asso- 
 ciation in the same place of punishment with hardened offend- 
 ers, it became necessary, as well from this circumstance, as 
 from the different nature of the discipline, to separate this en- 
 tirely, both by locality and name, from the other prisons. 
 
 To argue the utility, or to descant on the humanity, of this 
 establishment, after demonstrating its justice, would be a use- 
 less task. Every mind that has investigated the causes and 
 progress of crime, must acknowledge the one, every benevo- 
 lent heart must feel the other. And even economy, cold cal- 
 culating economy, after stating the account in dollars and 
 cents, must confess that this is a money-saving institution. If 
 it is wise to prevent a hundred atrocious crimes by removing 
 the opprobrium of a venial fault, and substituting instruction 
 for punishment ; if it is the highest species of humanity to re- 
 lieve from the misery of vice and the degradation of crime ; to 
 extend the operation of charity to the mind ; and to snatch 
 with its angel arm innocence from seduction ; if it be a saving 
 to society to support an infant for a few years at school, and
 
 INTRODUtJTIOJS-. Oj 
 
 thereby avoid the charge of the depredations of a folon for the 
 rest of his life,* and the expense of his future convictions and 
 confinements ; then is the School of Reform — a wise, a hu- 
 maxe, and an economical institution. 
 
 I need not enlarge this report by the details for the govern- 
 ment of this school; they are minutely contained in the code. 
 One principle pervades the whole, which has been sufficiently 
 enlarged upon : that the offences of children may be sufficient- 
 ly corrected, both for the ends of punishment and example, by 
 education and employment. If this be wrong, the whole plan 
 must be remodelled ; but in establishing it, I have been guided 
 by something better than the best reasoning. In the city of 
 New York there is an establishment of this kind, which can 
 never be visited but with unmixed emotions of the highest in- 
 tellectual pleasure. It now contains one hundred and twenty- 
 
 * " There is hardly a child who will be condemned to it, [the New York House 
 of Refuge,] who, if left to the course which would bring him to it, would not 
 finally be supported by the State as a convict. The evidence of this is, that a 
 very large proportion who are now confined in our State Prisons, commenced 
 their career in crimes when they were children, in some of our large cities. One 
 person, in particular, who is now confined in the prison in Auburn, was first con- 
 victed when he was only ten years old ; and has since been, at different time?, 
 twenty-eight years a convict, supported by the State, at an expense of not 
 less than two thousand dollars." — Report of the New York Committee. 
 
 In the Arch street prison at Philadelphia there is now awaiting his trial, for fel- 
 ony, a boy of eleven years of age, who had already passed a year in the peniten- 
 tiary of New Jersey for horse stealing : during this period the only lessons he re- 
 ceived , were the details given by his fellow convicts of their exploits; some of which 
 he repeated to us, with a satisfaction but ill repressed. I cannot avoid adding to 
 this note an extract from a report on the state of the French prisons made by Mr. 
 Deappert, which strongly exemplifies the necessity of a complete separation of 
 juvenile from other offenders. " There were in the same room (at Douay) sever- 
 al youth* who had been sentenced to imprisonment by the correctional tribunal, 
 together with men of different ages, and also a man condemned to death for mur- 
 der ; he requested to speak to me in private ; " I wait," said he, " the moment, 
 of execution ; and since you are the first person who has visited us, I wish to ad- 
 dress you with confidence, and to conceal nothing from you. I am guilty of the 
 crime for which I have been condemned. I have committed robbery and murder. 
 From my infancy my parents neglected me. I fell into bad company ; my undoing 
 wns completed in a prison ; and I am now about to expiate all my faults. Among 
 (he persons whom you see in this room, there are some youths, who, with pain I 
 observe, are preparing themselves for the commission of new crimes, as soon as 
 the term of confinement expires. If you could get them removed mto a teparate 
 ■ uld be the greatest bt tfervpont/
 
 0*t> | RODUCTfOJf. 
 
 five boys and twenty-nine girls, for the most part healthy, 
 cheerful, intelligent, industrious, orderly, and obedient; ani- 
 mated with the certain prospect of becoming useful members 
 of society, who, but for this establishment, would still have 
 been suffering under the accumulated evils attendant on pover- 
 ty, ignorance, and the lowest depravity, with no other futurity 
 before them than the penitentiary or the gallows. I ought noi: 
 to omit mentioning here, that the female department is super- 
 intended by a visiting committee of Ladies, who, at regular 
 and frequent periods, examine the school, converse with the 
 scholars, encourage the diffident, reprove the disorderly, re- 
 ward the industrious, and inspire all with their own virtues. 
 The code I submit, invites a similar superintendence, from 
 which the highest advantages, such as nothing but the benign 
 influence of female character can give, are expected. 
 
 The plan of indenting the scholars to useful trades has been 
 recommended, from the practical effect that has been observed 
 at New York. It might at first be supposed, that an aversion 
 would be found to taking apprentices from such a place ; but 
 experience has proved that the confidence inspired by the mode 
 of education pursued, is so great, that applications are more nu- 
 merous, for children of both sexes, than the. rules of the insti- 
 tution will permit them to supply. And, although twenty- 
 eight boys and fifteen girls have been indented, the most fa- 
 vourable accounts have been received of their behaviour; two, 
 having received what they thought ill usage from their mas- 
 ters, left them, but returned to the School; and only one has 
 resumed his former bad habits. What renders the reformation 
 of these children the more extraordinary, is, that thirty of 
 them had before been sentenced to the Penitentiary, from one 
 to five different times. A register is kept of the behaviour of 
 the different boys, and of as much of their previous history as 
 can be discovered. Extracts from this are annually published, 
 and they contain a number of facts of the most interesting 
 kind ; all proving the practical utility of the plan. Some of 
 these are selected from the last Report of the Managers.* 
 
 * " W. H. O This boy"s history exhibits one of the most striking instances 
 
 of juvenile depravity that we have on the records of this Institution. He, at the 
 ea.rjy age of nine years', commenced his career of stealing, and with the assistance
 
 INTRODUCTION. t» I 
 
 It. will be observed, that, contrary to the rules laid down For 
 ihe Penitentiary, personal castigation is permitted in the 
 
 of some, more hardened and older in crime than himself, he continued it tor three, 
 years, with the most undeviating success. Of his short life, two and a half years, 
 in three separate terms, have been served in the Penitentiary, besides having been 
 several times in Bridewell. The associations he formed in those schools of vice, 
 instead of reclaiming him, served only to strengthen his vicious propensities, and 
 at his discharge from them, he recommenced his depredatory acts, with renewed 
 skill; in short, with him stealing seemed to be an instinctive principle. Thus he 
 continued until the establishment of this institution. He fortunately became one 
 of its first inmates. Upon his introduction he evinced a settled determination to 
 escape, (in which he succeeded three several times.) The most rigid treatment 
 was for a long time successfully applied. At length he began gradually to yield 
 to the restraints, and submit to the regulations required of him; from January to 
 December, 1826, he so far improved that we considered him one of the most 
 amiable boys in the house; the person who contracted for his services, said, that 
 iiis attention to his work was such as to afford him much pleasure; that he was 
 entirely obedient, agreeable, and active in the discharge of his duties. Conceh- 
 ing that the object of the institution, in the effect of his reformation, was com 
 pleted, and that a better state of mind could not be effected ir. William, he wa; 
 indentured to a highly respectable mechanic, living in Connecticut. Some time 
 previous to his indenture, he was asked whether he would ever redarken bis cha» 
 racter by the commission of crime, if selected to be bound out ; his reply was, 
 that he was then influenced by the wicked one, but that he now felt his mind to 
 be in a different channel; and if a modest and humble deportment for several 
 months, together with a knowledge of his frequently practising devotional 
 cise, are proper criteria by which to judge, we feel perfectly safe in saying that 
 William was truly an altered boy. Since his indenture, a very favourable repor. 
 has been received from him." 
 
 -' S. T. — Aged sixteen years, born in Patterson, N. J.; he lost his father and 
 mother when quite young, after which he was left to the care of guardians, who 
 iteglecteu him. He in a short time acquired a degree of celebrity among his com- 
 panions, by his skill in stealing old rope, iron, copper, &c from around the docks. 
 His career, however, was made short by the superintending care of the city au- 
 thority, by whom he was committed to the Alms House, as a vagrant. He twice 
 escaped from that institution, and when retaken the second time, he was sent 
 here. Soon after his commitment it became evident that the discipline of the 
 house was all that was requisite to make him obedient. After conducting himseli 
 to the entire satisfaction of the superintendent, he was indented to a farmer in the 
 country. Since his indenture we have been informed by the gentleman with 
 whom be lives, that " he is industrious, attentive, and kind; and such is ihe statf; 
 of his mind, as relates to religion and morality, that he will reprove his men for 
 using profane language, in a prompt, though modest and becoming manner; often 
 icferring to the precepts he received from his recent friends. ' 
 
 " L>. U. Ii— Afc.til fifteen years, born in New York, committed fi 
 lice, on suspicion of h.ivinw stolen * shawl. He was brought up in (he vicinity oi 
 Bancki S played the ti nboufine in those receptacles 
 
 «
 
 88 INTKODCCTlOA. 
 
 School. This exception was introduced because the infliction 
 of that punishment in childhood, is not attended with the de- 
 
 of vice and misery, the dancing-houses of Corlears Hook. He acknowledges 
 having stolen some few articles, but denies stealing the article for which he was 
 sent here. From the time he was committed until his discharge, he conducted in 
 an entirely satisfactory manner. In October he was indented to a respectable 
 gentleman residing about sixty miles North of this city." 
 
 " L. S — Aged about sixteen years, born in Ireland; his parents emigrated to 
 this country about eight years ago. His father has since died. His education 
 was entirely neglected by his parents, and the choice of his companions left ex- 
 clusively to himself. He has worked at several mechanical branches of business, 
 to none of which his restless disposition could attach itself. He was committed 
 to the Refuge in March, 1825, from the Police Office, for stealing a copper kettle, 
 for which he had been confined in Bridewell eight days, (where he had been four 
 times before.) The character of a notorious thief cannot with justice be attach* 
 ed to this boy, though he had been an habitual pilferer for several years. Upon 
 his entry into the house, he gave no evidence of a disposition palpably wicked ; 
 yet he was a source of much trouble to the superintendent ; in mischief he was 
 almost invariably first: to the rules and regulations of the house he was perfectly 
 indifferent, and in one instance he absconded. After a few days he was returned, 
 severely punished, and put in irons for forty-three days, when his irons were taken 
 off. In December, 1825, his improvement was so great that he was promoted to the 
 situation of night watch, and day guard, the duties of which he faithfully per- 
 formed until July, 1826, when he requested to be sent to sea; his request was com- 
 plied with, and he was indentured to a highly respectable ship owner of this city. 
 After an absence of three months, he returned to the Refuge on a visit, stated 
 that he was perfectly contented with his situation, and that he had often reflected 
 while at sea, that, instead of enjoying the blessings of liberty, he might have now 
 been in State Prison, had it not been for the establishment of a House of Refuge.*' 
 
 " D. S. — Aged fifteen years, born in New York; his father died while he was 
 yet an infant ; his mother since married an oysterman, now living in the vicinity 
 of Eancker Street. David has lived with three different persons, who kept oys- 
 ter-cellars; after leaving them, he ruturned to his mother. He commenced his 
 thefts by stealing wood from about the docks; has also been in the habit of steal- 
 ing old junk, copper, &c. He has been three several times committed to Bride- 
 well, the last time for stealing a copper kettle, in company with the foregoing 
 boy; it was for this offence that he was committed to the Refuge. He was at 
 first very refractory, constantly plotting how to escape, and endeavouring to per- 
 suade others to accompany him. He was for some months treated with much 
 strictness; from June, 1825. to February, 1S26, his conduct was entirely satisfac- 
 tory; at this time an opportunity offering to give him an advantageous situation, it 
 was deemed incompatible with the object of the Institution to detain him longer 
 He was consequently indented to a gentleman residing in the Western part of this 
 State, who, in a letter directed to his mother, two months after the date of his in- 
 denture, says he has much reason to be pleased with David's conduct." 
 
 " J. D. S. — Aged eleven and a half years, born in New York. This child, 
 notwithstanding his extreme routh. has committed many errors. He was first re '
 
 INTRODUCTION. 
 
 gradation winch characterizes it when applied to adults ; be- 
 cause it is permitted to teachers, with respect to their scholars; 
 to masters, as respects apprentices ; and because the rules laid 
 down for regulating the punishment, are such as will effectual- 
 ly prevent its abuse. Yet, if experience should prove, as I 
 think it will, that, even in these cases, it may be dispensed 
 with, it ought to be abolished. But, while this power is grant- 
 ed by law to the master over the scholar, or apprentice, it would 
 not be prudent to deny it to the warden, who acts in this capa- 
 city towards the children under his care. 
 
 There is also another difference that will be remarked, in 
 comparing this institution with the Penitentiary : here public 
 worship is directed, while, in the Penitentiary, no provision 
 is made for its performance. The advantage to be derived 
 from a habitual attendance on this duty, is so great, that it 
 ought not lightly to be given up; but, after the best reflection 
 I could give to the subject, I determined that it might safely 
 be allowed in the school, but could not, without danger, be 
 permitted in the Penitentiary. The discipline necessary to 
 preserve order in the work-shops, and during the hours of in- 
 struction, will be sufficient for the same purpose, in the chapel, 
 during divine service. In the habit of seeing and conversing 
 with each other during the week, the association in the church, 
 on Sunday, will not be made, by the children, the means o:* 
 communicating plans for escape., or other unlawful combinu- 
 
 .0 the perpetration of crime, by the persuasion of one older than himself, in whose 
 company he stole many articles; he was once in Bridewell for stealing, and war. 
 frequently punished by his parents, but to no effect. He was committed here, at 
 the solicitation of bis father in April, 162.5. He conducted himself with uniform 
 propriety until October, 1826, when he was returned to his parents for the pur- 
 pose of indenturing to a gentleman who was instrumental in his reformation, and 
 who was well acquainted with his disposition. Here is another instance in which 
 the preservation of a child from ruin may be attributed to the establishment of a 
 House of Refuge. Had this boy's thieving practices beeu permitted to de 
 rate into a habit, they doubtless would have procured for him a residence in our 
 .State Prison or Penitentiary, where the object is punishment, and not reformation; 
 he must have been thrown in the company of old and hardened offenders, the con- 
 taminating influence of whose conversation would eventually have banished eve- 
 ry virtuous and ger.-rous sentiment from his tender bosom. What reflecting mind 
 hut must admit tin- utility of such an institution, and what <_■• ■' but would
 
 INTRODUCTION. 
 
 fion. But, in a Penitentiary, instituted for solitary confine- 
 ment, the meeting of all the convicts on Sunday would be en- 
 tirely inconsistent with the first principles of the plan: order 
 could not be preserved without recourse being had to corporal 
 chastisement; the convicts would anticipate the return of their 
 periodical re-union, not to listen to the truths of religion, but 
 to enjoy the society of which they had been deprived ; the ut- 
 most vigilance could not prevent communication by whispers 
 or signs; they would become acquainted with each other's 
 faceSj and be ready to renew, after discharge, those associa- 
 tions, which it is one object of the plan to prevent; and it has 
 been asserted, and I believe with truth, that most of the com- 
 binations for insurrection and escape have been formed in the 
 ^hapel. 
 
 In all these institutions, whether for restraint, punishment, 
 or education, so much must depend on the integrity, attention, 
 and ability, of the warden, that not only are the greatest care 
 and judgment necessary in selecting him, but the most watchful 
 superintendence after he is chosen. It may be stated as a gene- 
 ral rule, to which, unhappily, there are few exceptions, that, 
 if neglect in the performance of official duties incurs no loss of 
 emolument, they will be neglected, unless the state of public 
 opinion is such as to make it an equivalent sanction ; this last 
 :s a powerful agent; but it cannot always be depended upon ; 
 and it operates least upon those that are most in want of a su- 
 pervising power. A sensibility to public opinion, is connect- 
 ed, for the most part, with a moral sense that would, of itself, 
 enforce a performance of the duty ; and a lax morality is sel- 
 dom attended with any great reverence for the opinions of 
 others. But, in framing laws, we cannot, count on the con- 
 stant operation of this high sense of duty or regard to public 
 approbation. They must be made for men as they are; and 
 unfortunately the disposition to gain as much as possible, with 
 ::s little trouble as possible, is that which we shall find most ge- 
 neral, and which, therefore, we must counteract, or direct to our 
 purpose, if we expect our institutions to be useful and perma- 
 nent. A superintending power, therefore, has, in most sys- 
 tems of law, been provided to secure the execution of official 
 duty • t'i ; ? is easily done, and, were the remedy an effectual
 
 INTRODUCTION 71 
 
 one, nothing couid be more simple than this branch of legisla- 
 tion ; but what can assure us that the supervisors will do their 
 duty? 
 
 Cnstodes ipsos, quis custodiet ? 
 
 In our legislation, we may create a system of successive re- 
 sponsibilities and inspections ; but a foundation must be laid 
 for the last. We may place the weight on the elephant, and 
 support him by the tortoise ; but here our theory, with that of 
 the Indian cosmogonist, ends. Sound philosophy alone can, in 
 both cases, direct us to the great principles, which effect the 
 different ends, without this cumbrous and useless machinery. 
 Individual interest draws all to a central point: a desire to pro- 
 mote the public good, enforced by the fear of censure and the 
 hope of applause, gives an impetus in a different direction ; 
 and these powers combined, will restrain aberrations from the 
 circle of official duty just as the order of the heavenly bodies 
 is preserved by the divergent operation of mutual attraction 
 and the projectile force. 
 
 Self-interest, then, must be so combined with the public 
 good, as to make them inseparable ; and public inspection 
 must be secured, to keep this great spring of human action in 
 its proper direction. This has been endeavoured in the plan 
 of administration for the several houses of confinement provi- 
 ded for by this system. 
 
 The whole are placed under the superintending care of the 
 same board, because, being parts of the same system, its gene- 
 ral principles could only be enforced by a common head. The 
 number of the institutions required an attention that a single 
 person could not well perform ; a board of inspection, there- 
 fore, was created ; and, considering the nature of the duties, 
 the number of five was fixed on as that which would best unite 
 the advantages of deliberation with the requisite despatch of 
 business ; and a distribution of the duties into classes, that some 
 might be performed by one member ; making two necessary 
 for others ; and a majority for those which were most impor- 
 tant, was considered as a convenient and safe arrangement. — 
 This board, in addition to its general superintending power, 
 Jns the 'lirprt management of pi) the ppf'njarv concern/) of the
 
 Z% IJiTRODTJCTIOSi. 
 
 several prisons, but under regulations, which, it is thought, 
 must prevent the possibility of any corrupt appropriation or 
 negligent dilapidation of the funds. Among other precautions, 
 is one that ought, I think, to be adopted in all cases of trust, 
 whether arising from office, or contract, or testamentary dis- 
 position ; the deposite of all moneys held for another, or for 
 the public, or any institution, in a safe public bank, in the name 
 of the trust, or of the person in his quality as officer or agent, to 
 be drawn out only by checks, expressing the purpose to which 
 the money is to be applied, and making it a criminal breach 
 of trust if the deposite is not made, or if the funds are drawn 
 for any other purpose than that of the person or institution for 
 whose use it was received. The advantages of such an ar- 
 rangement, in commercial agencies, and private and public 
 trusts, need not be descanted on here : it is intended, in con- 
 nexion with other provisions, prohibiting any kind of concern 
 in purchases or sales made for the prisons, any profit or con- 
 venience from the employment of the prisoners, to take away 
 all temptation of making the office a pecuniary speculation, 
 and, what is of as much consequence, perhaps, to prevent its 
 being thought one. 
 
 The board of inspection must be permanent; its duties are 
 arduous; they l-equire experience as well as diligence; the undi- 
 vided attention of the members must be given to the subject; 
 the close and unremitted labours required by the important bu- 
 siness entrusted to them, cannot be expected to be gratuitously 
 given. Few men, in our state of society, can afford to divert 
 the time required for this purpose from their private affairs ; 
 and those who can afford it, are not always the best fitted, for 
 the task. They must, therefore, be paid, and so liberally paid, 
 as to command the talent and integrity required. Philanthro- 
 py, public spirit, humanity, or religion, may inspire indivi- 
 duals to volunteer their services; but it is a natural tendency of 
 zeal gradually to cool, when the service which excited it, is 
 one requiring patient attention, a daily intercourse with the 
 most degraded of our species, and a close attention to dull de- 
 tail ; more especially, when it requires no exertion of those 
 talents that command public applause: besides this, if the.ser- 
 is unpaid, its negligent performance rarely incurs the r>e-
 
 INTRODUCTION. 
 
 13 
 
 natty 01 public censure, which never falls very heavy on those 
 who have gratuitously given any part of their time or atten- 
 tion to the business ; whereas, the salary being an equivalent 
 for the service, legal punishment, as well as loss of reputation^ 
 will generally attend neglect. The particular powers given to 
 the Board of Inspectors, need not be here detailed ; they are, 
 it is thought, clearly designated in the test. As theirs is chief- 
 ly a supervising power, and not so direct an agency upon the 
 prisoners as that of the other officers, it was not deemed neces- 
 sary to give them any interest in the labour of the convicts, 
 the number, too, of their members would have rendered this, 
 extremely onerous to the institution. But withthe Warden it 
 was different ; to him it was deemed necessary to apply those 
 principles I have endeavoured to establish, which make the in- 
 terest of the officer and of the public to coincide. The interest 
 of the public is, first, that all the regulations in the Code, for 
 punishment and reformation, should be strictly observed ; 
 secondly, that as much as possible of the expense of the insti- 
 tution should be paid by the labour of the convicts. To give 
 the Warden an interest in the first branch, he has a premium 
 on the decrease of re-convictions, the best mode of testing the 
 efficiency of the system. To stimulate him in promoting the 
 industry and skill of the convicts, he has a per centage on the 
 gross amount of their labour ; while the superintendence of the 
 Inspectors, their periodical examination of the prisoners, and 
 of the other officers, the observation of the Chaplain and Phy- 
 sician, and of the official visiters, will effectually prevent his 
 urging that labour by any other means, or in any greater de- 
 gree, than is prescribed by the Code. It is also a great object, 
 that, by preserving the health of the prisoners, the punishment 
 should not be carried further than is directed by the sentence ; 
 for this purpose, cleanliness, wholesome food, exercise, and 
 proper relaxation from labour, are prescribed. To enforce their 
 execution, the proper system of inspection is provided ; ami 
 to combine private interest and the love of distinction in the 
 performance of this duty, honorary and useful premiums are 
 given for different grades of decrease in the usual mortality oC 
 the prisons. These rewards are extended to .. ffioers 
 
 ••'mse agency can at all c to the ei
 
 74 INTRODUCTION. 
 
 It may be necessary, before the conclusion of this report, to 
 give some idea of the number of officers, and the duties of those 
 which have not yet been mentioned. 
 
 The plan, as has been seen, comprehends, 
 
 A House of Detention, with two Departments ; 
 
 A Penitentiary ; 
 
 A School of Reform ; 
 
 A House of Refuge and Industry, with two Departments. 
 
 All of these are under the general superintendence of five In- 
 spectors. One Warden, and one Matron, will be required for 
 each Institution. One Chaplain and one Physician will be> 
 sufficient for the four ; a Clerk for the Penitentiary ; one 
 Teacher for the School for Reform, and another for the Peni- 
 tentiary. In the other Institutions, the detention is not long 
 enough to require a regular establishment for education : and 
 one of the inmates will always be found competent for this 
 purpose ; so that, independent of the under keepers, the num- 
 ber of which will depend, in some measure, on that of the 
 prisoners, the four Institutions will require thirteen officers. 
 The manner in which the prisoners are proposed to be confin- 
 ed, will preclude the necessity of a military guard ; and unless 
 the number shall multiply much beyond our hopes and reason- 
 able expectations, one underkeeper for the House of Detention, 
 one for the School of Reform, two for the House of Industry, 
 and six for the Penitentiary, ten only in all, will be required. 
 In this calculation neither the Inspectors nor their Agent arc 
 included. 
 
 A regulation of much importance in the Code may need some 
 explanation ; which has not been given in its place. Solitary 
 confinement, although accompanied by the permission to labour 
 in an uncovered court, may, if the labour be sedentaiy, be in- 
 jurious to the health. To counteract this effect, a machine is 
 directed to be made that will require strong muscular power 
 to put in motion ; and at this, each of the male prisoners is 
 directed to work, but only for one hour in each day. This is 
 made compulsory ; but as the only penalty is solitary confine- 
 ment to the cell, and as it is considered and intended only as u 
 preservation to the health, this compulsion is not at war with 
 ►rinciples 1 laid m on that subject. The]
 
 IViKOWKJU'iWN. 
 
 are to be brought to the machine separately, and it must be so 
 contrived as not to permit them to see or hear each other while 
 at work. Its effects will be not only to preserve general health, 
 but to fortify the muscular powers, and fit the convict, on his 
 discharge, for any species of laborious employment. 
 
 The tread-mill, although a favourite engine of punishment 
 in many institutions, finds no place in this ; for the following 
 reasons : It cannot be employed without breaking in upon the 
 system of solitary confinement, which is the basis of the sys- 
 tem: its injurious effects upon the health are supported by- 
 strong testimony;* and although there is a contrariety of evi- 
 dence on the subject,! yet it may be fairly inferred, from the 
 whole, that it does not fortify the constitution, and prepare the 
 convict for any of the ordinary pursuits of laborious life, the 
 principal muscular action being in the legs only. It teaches 
 the convict nothing that can be useful to him on his discharge. 
 It is not a profitable employment of human power. If it have 
 any effect on the morals, it must he a bad one, from the asso- 
 ciations inseparable from it, and from the degradation which 
 is considered to be attached to it. As a punishment, it must 
 be unequal ; to give it the velocity necessary to punish one of 
 a robust constitution, would make it a torture to a weaker 
 convict. 
 
 The Code of Reform and Prison Discipline, and the reasoning 
 in support of its provisions, are now before the Legislature. 
 Their wisdom will determine on the propriety of its adoption. 
 Many parts of the plan have at different times been proposed, 
 and some of them have been partially executed : but they have 
 never before been consolidated and presented as component 
 parts of a whole system ; a characteristic which, it is thought, 
 constitutes its chief value : for it must be apparent, from the 
 nature of the subject, that, without a continuity of operation, 
 as well as uniformity of principle in the plan, no infliction of 
 punishment or discipline for reformation can have any great 
 effect. In all legislation, we must first form a clear idea of that 
 which we wish to accomplish, and then determine on the best 
 
 • Sir John Cox Hippesly on the tread-mill. 
 
 t Sixth report of the tocieti foi the improvement of prison discipline, appen
 
 7:> INTRODUCTION.. 
 
 means of effecting it. These being well understood, they must 
 be explicitly enounced, not only for our own guidance inform- 
 ing the plan, but for that of our successors in correcting, of 
 the judges in expounding, and of our constituents in obeying 
 ii. In that which I offer, its great object has been constantly 
 kept in view, and has been repeated perhaps oftener than was 
 necessary ; and the means proposed to effect it, are such only 
 as have been recommended either by experience or the matur- 
 ed reflection. But, as this object is the prevention of crime, 
 it is clear that this would be but imperfectly effected by any 
 discipline applied after conviction only. Conviction supposes 
 the prior existence of crime, and the discipline that corrects it, 
 is punishment ; but punishment is only one of the means of at- 
 taining the end of preventing crimes. To avoid their commission, 
 therefore, we must go one step farther back. We must prevent 
 contaminating association before trial, more carefully than we 
 would after it. We must never confound innocence with un- 
 convicted guilt, by imposing any unnecessary restraint upon 
 cither. But even accusation is most commonly founded on 
 the evident commission of an offence, although trial is neces- 
 sary to designate the offenders. We must begin, then, at an 
 earlier stage in our efforts to prevent it. We must relieve that 
 extreme want which is sometimes the cause, and oftener the 
 pretence for crime ; and we must find employment for the idle- 
 ness which generally produces it. And when this is done, our 
 work is not yet complete ; religious, moral, and scientific in- 
 struction must be not only provided but enforced, in order to 
 stamp on the minds of the people that character, that public 
 feeling, and those manners, without which laws are but vain 
 restraints. 
 
 The recapitulation of the several institutions embraced by 
 the Code of Reform and Prison Discipline, has been made to 
 show their close connexion, and that each part is so necessary 
 to carry into effect the great objects of the system, that an 
 omission of any one would, in a great measure, defeat the good 
 effect that might be expected from the others. If we mean 
 to guard the community from the inroads of crime, every 
 avenue must be defended. A besieged city, fortified on one 
 sftle, leaving the others open to hostile attacks, would be a
 
 INTRODUCTION. J I 
 
 just image of a country in which laws are made to eradi- 
 cate offences by punishments only, while they invite them 
 by neglect of education, by the toleration of mendicity, idle- 
 ness, vagrancy, and the corrupting associations of the accus- 
 ed before trial, as well as after conviction. Yet such is the 
 lamentable state of criminal jurisprudence, that all nations 
 are more or less in this condition. Here great severity is 
 used to punish offences, but no means are provided to prevent 
 them ; there mild punishments and a i-eformatory discipline 
 are applied after judgment ; but severe imprisonment an,d con- 
 taminating associations are indiscriminately inflicted on the in- 
 nocent and the guilty before trial. Between some States, the 
 contest seems which shall raise the greatest revenue from the 
 labour of the convicts : in others, the object is to degrade and 
 make them feel their misery. No where has a system been 
 established, consisting of a connected series of institutions 
 founded on the same principle of uniformity directed to the 
 same end. No where is criminal jurisprudence treated as a sci- 
 ence. What goes by that name, consists of a collection of dis- 
 similar, unconnected, sometimes conflicting expedients to pun- 
 ish different offences as they happen to prevail; of experiments, 
 directed by no principle, to try the effect of different penalties; 
 of permanent laws to repress temporary evils ; of discretiona- 
 ry power, sometimes with the blindest confidence vested in 
 the judge, and at others with the most criminal negligence 
 given to an officer of executive justice. All these and other 
 incongruities would cease, were the lawgiver to form correct 
 principles; enounce them for his own guidance and that of his 
 successors ; and, with them constantly before his eyes, arrange 
 his system of criminal jurisprudence into its natural divisions, 
 by providing for the poor, employing the idle, educating the 
 ignorant, defining offences, and designating their correspondent 
 punishment, regulating the mode of procedure for preventing 
 crimes and prosecuting offenders, and giving precise rules for 
 the government and discipline of prisons. 
 
 With such a system it may reasonably be expected, not that 
 offences will be eradicated, but that their recurrence will be 
 much less frequent, and that the rare spectacle will be wit- 
 nessed of a retrograde movement in vice and crime. But the 
 desultory attempts whieh have been made, and are daily ma-
 
 7S INTRODUCTION. 
 
 Icing, to carry some of its detached parts into execution, do but 
 retard the progress and endanger the success of reform ; they 
 are troublesome, they are expensive. The false reliance that 
 is placed upon them by their advocates, excites high expecta- 
 tions, which must be disappointed ; because a disease perva- 
 ding the system cannot be cured by topical remedies ; and the 
 disappointment produces despair of final success, an abandon- 
 ment of the plan of reformation, and an inclination to return 
 to the old sanguinary system.* 
 
 The Code now submitted completes the system of penal law, 
 which is respectfully offered for consideration. 
 
 The task was undertaken with an unfeigned distrust of my 
 own powers, which nothing could have conquered but the con- 
 vietio' lha» a simple enumeration, and development of the 
 principles on which the system is founded, would force a con- 
 viction of their truth. 
 
 It has been prosecuted with laborious and unremitted appli- 
 cation for several years, with a respectful attention to the opin- 
 ions of others, and a close observation of practical results. 
 
 Its conclusion was attended with the gratifying consciousness 
 of having taken every precaution to guard against the pride of 
 opinion, and neglected no means that could be suggested by 
 the deepest sense of its importance, and a religious desire that it 
 might advance private happiness, by establishing the true prin- 
 ciples of public justice. 
 
 And it is now respectfully offered for consideration, in the 
 hope that after legislative wisdom shall have supplied the 
 omissions, and corrected the errors of the work, it may be 
 made the basis of a system by which instruction may be pro- 
 moted, idleness and vice repressed, crimes diminished, and the 
 sum of human happiness increased. 
 
 EDWARD LIVINGSTON. 
 
 * There is one other point, which, although insisted on in the introductory re- 
 port to the Penal Code, I cannot avoid recurring to here, because its importance 
 will justify repetition, and because of its bearing on one of the institutions recom- 
 mended in this report. I mean such a change in the constitution of the courts as 
 to leave one of criminal jurisdiction in permanent session. This arrangement will 
 curtail expenses, both in the construction and administration of the House of De- 
 tention; will prevent delays, injurious to the course of justice and vexations to 
 the accused: and will be found neither difficult nor costly in its execution.
 
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