Front Page Titles (by Subject) III.: Means of Punishment. - Prisons and Prison Discipline
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III.: Means of Punishment. - James Mill, Prisons and Prison Discipline 
Supplement to the Encyclopedia Britannica (London: J. Innes, 1825).
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Means of Punishment.
II. Having stated what appears to us necessary for illustrating the principles which ought to regulate the imprisonment of those, in respect to whom safe-custody is the end in view, we come, in the next place, to the case of those, in respect to whom, in addition to safe-custody, punishment is to be effected through the same medium.
This subject we shall unfortunately be under the necessity of treating superficially; because, in order to explain it fully, we ought to have before us the whole doctrine of punishment; and, for this purpose, a developement, too extensive for the present occasion, would be required.
This we may assume as an indisputable principle; That whatever punishment is to be inflicted, should be determined by the judge, and by him alone; that it should be determined by its adaptation to the crime; and that it should not be competent to those to whom the execution of the sentence of the judge is entrusted, either to go beyond the line which he has drawn, or to fall short of it.
We have already established, on what seemed sufficient reasons, that for persons confined, on account of safe-custody merely, the cheapest accommodation, not importing injury to health, in respect to apartment, food, and clothing, should alone be provided at the public expense.
Unless in the case of those whom the judge might condemn to lose a portion of their health, by the sufferings of an unwholesome prison, unwholesome food, or improper clothing, this accommodation ought to be afforded, even to those who are placed in prisons for the sake of punishment. And if it should be thought that the loss of health never can be a proper punishment, if it has never been regarded as such even by savages, and is repudiated by every principle of reason, then it follows, that the accommodations which we have described in the former part of this discourse, as required in the case of prisoners detained for safecustody, are required in the case of prisoners of every description.
This is a basis, therefore, upon which every thing is to rest. In every rational system of prison management, this is an essential condition. We are now to see in what manner, upon this footing, punishment, by means of imprisonment, is to be effected.
One mode is sufficiently obvious and sufficiently known. The punishment may be rendered more or less severe by its duration. Want of liberty is, in almost all cases, a source of uneasiness; want of liberty, added to the denial of all pleasures of sense, can hardly ever fail to be a source of great uneasiness. A long imprisonment, therefore, with the cheapest accommodation not importing injury to health, must be a severe punishment. This, it is evident, may be graduated to more or less of severity, not only by degrees of time, but of the use of such means as the prisoner might command for procuring accommodations and indulgences.
To this imprisonment may be added solitude. But though we mention this, as a practicable addition to simple imprisonment, it is well known how little, unless for short periods, and on very particular occasions, it is to be recommended.
The modes, which lately have been most in repute, of adding to the severity of simple imprisonment, for the purpose of punishment, have been two; 1st, Hard labour; and, 2dly, Bad prisons, with bad management in those prisons.
1. The species of labour which appears to have obtained the preference is that of treading in a wheel.
If a criminal in a prison is ever to be let out again, and to mix in society, it is desirable that nothing should be done, and least of all done on purpose, to make him a worse member of society than when he went in. There cannot be a worse quality of a punishment, than that it has a tendency to corrupt and deteriorate the individual on whom it is inflicted; unless, indeed, he is a prisoner for life; in that case, people of a certain temper might say, that making worse his disposition is a matter of little importance; and to them we have no time to make any reply.
Most of those persons who come into prison as criminals, are bad, because they have hated labour, and have had recourse to other means than their industry of attaining the supply of their wants and the gratification of their desires. People of industry, people who love labour, seldom become the criminal inmates of a prison.
One thing, however, is pretty certain, that men seldom become in love with their punishments. If the grand cause of the crimes which have brought a man to punishment is his not having a love but hatred of labour; to make labour his punishment, is only to make him hate it the more. If the more a man hates labour, the more he is likely to act as a bad member of society; to punish a man with labour, and then to turn him out upon society, is a course of legislation which savours not of the highest wisdom.
Besides, in treating labour as an instrument of punishment, call it hard labour, if you will, what sort of a lesson do you teach to the industrious and laborious class, who form the great body of your people? to those whose lot is labour, whose lot is hard labour, harder than any which it is in your power to impose? What compulsory labour is so hard as many species of voluntary labour?
As an instrument of reformation, labour, as we shall presently see, is invaluable. As an instrument of punishment, hardly any thing can be conceived more exceptionable. That which is the source of all that mankind enjoy, that which is the foundation of every virtue in the most numerous class of the community, would you stamp with ignominy and dishonour, by inflicting it as a punishment upon the worst and basest of your people? Is this your expedient for rendering it, what every wise legislator would wish to render it, honourable, and thence desirable?
There are other objections, perfectly decisive, against labour as a punishment. It operates with more inequality than almost any other instrument of punishment that ever has been invented. The same degree of labour would kill one man, that to another would be only a pastime. From this source we may apprehend the most horrid abuses, in the continuance of those tread-mills. We may be very sure, that the most atrocious cruelty will often be inflicted upon those who, with strength below the average standard, are placed in those penal engines; while, iii the case of those whose strength is much above that standard, they will hardly operate as a punishment at all.
It is impossible that the judge can measure out this punishment; because the judge has not the means of ascertaining the relative strength of the parties who come before him. It must, therefore, be left to the jailor. The jailor, not the judge, will mete out and determine the degree of suffering which each individual is to undergo. The jailor, not the judge, is the man who adapts the punishment to the crime. Hence one of the stains which mark a careless and stupid legislation.
It is a far inferior, though still no inconsiderable proof of a blundering legislation, that the labour, if labour it must be, is not of such a sort as to be useful. The turning of a wheel, by human labour, when so many better means of turning it are possessed in abundance, is destitute of even this recommendation. It stands upon a similar footing with the contrivance of the jailor, whom Mr. Bentham celebrates: “We are told somewhere,” he says, “towards the close of Sully’s Memoirs, that for some time after the decease of that great and honest minister, certain high mounts were to be seen at no great distance from his house. These mounts were so many monuments of his charity. The poor in his neighbourhood happened to have industry to spare, and the best employment he could find for it was, to remove dirt from the place where it lay to another where it was of no use. By the mere force of innate genius, and without having ever put himself to school to learn economy of a French minister, a plain English jailor, whom Howard met with, was seen practising this revived species of pyramid architecture in miniature. He had got a parcel of stones together, shot them down at one end of his yard, and set the prisoners to bring them to the other; the task atchieved, Now, says he, you may fetch them back again. Being asked what was the object of this industry, his answer was, ‘To plague the prisoners.’ ” In a note on this passage, Mr. Bentham says, “I beg the jailor’s pardon; what is above was from memory; his contrivance was the setting them to saw wood with a blunt saw, made blunt on purpose. The removers of mounts were a committee of justices.”
2. Bad prisons, and bad management in those prisons, is a mode of punishment, the recommendation of which has lately been revived, after we might have hoped that, in this country at least, it was exploded for ever. The language of such recommendation has, on several recent occasions, been heard in Parliament; and an article on Prison Discipline, which lately appeared in the Edinburgh Review, cannot, if the writer is to be considered as speaking in earnest (which, perhaps, may be doubted), be interpreted in any other sense. Even the Committee of the Society for the Improvement of Prison Discipline have not been able to withstand the force of what they may have supposed to be fashionable doctrine. In their Fourth Report, lately published, which we are sorry to say evinces more of good intention, than of enlightened views for its guidance; they say, “No charge can be more mistaken and unfounded, than that the plans recommended by this institution are calculated to introduce comfort into gaols. The committee are of opinion, and have always contended, that severe punishment must form the basis of an effective system of prison discipline;” thereby confounding two things, punishment, and prison discipline; things totally distinct; and between which, it is of so much importance to preserve the distinction, that without preserving it not a rational idea can be entertained about either.
No doubt crimes must be punished. Who needs instruction upon that head? But when the judge has prescribed, that, in a particular way, which he points out, a particular measure of pain shall be inflicted upon an individual; and when the individual is taken, and made to sustain the operations through which the pain is generated; what has this to do with the discipline of the prison? It is an act or series of acts, sui generis; acts not forming any part of the ordinary course of prison management; acts which would not have taken place, which ought not to have taken place, if the judge had not commanded them, and which were performed solely and exclusively in obedience to his commandment. This is the nature of punishment,—other punishment than this there ought to be none.
The committee would make severe punishment the basis of prison discipline! What business have the committee with punishment? The assigning of punishment the legislature have given to other and fitter hands; to those who take cognizance of the offence, and alone ought to measure the punishment. Saying they would make punishment the basis of prison discipline, what do they intend by this ill-contrived expression? Do they mean, that their jailor shall hold the scales, and weigh out the proper quantity? If not, how are they to be understood? for if not the jailor but the judge is to weigh, and the jailor is to do nothing but punctually carry the prescription of the judge into execution, then is punishment, in no proper sense of the word, any part of prison discipline. It is a separate operation, performed on a particular occasion, because prescribed by the judge, and in the exact manner in which the judge has prescribed it. If it is, on the other hand, a part of prison discipline, then all the horrid consequences, inseparable from making the jailor the judge and meter of punishment, present themselves to the imagination; and he who can endure to look at them may dwell upon the picture of a prison, wherein the poor will not be more comfortable than at home, nor by the charms of imprisonment enticed to the commission of crimes.
Nothing can more clearly indicate that vulgar state of mind, which consists in confusion of ideas, than the vague language which we hear about the necessity of making prisons the seats of wretchedness, that crimes, they say, may not receive encouragement.
We have already seen, that, unless it is part of a man’s punishment, expressly ordained, that he shall lose a portion of his health; that is, that his life shall be cut short; that is, that along with a portion of torture, he shall receive a capital punishment; a wholesome apartment, a sufficiency of wholesome food, proper clothing, all of the cheapest kind, must be provided for every body. When people talk about making prisons seats of wretchedness, do they mean something worse than this?
Many of them will no doubt answer; Yes, we mean hard labour in addition. We ask again, Do you mean hard labour, according to the prescription of the judge, or without the prescription of the judge? If according to the prescription of the judge, the case is the same with that which we have previously examined. This instrument of punishment is exceptionable, only because it is a bad instrument.
The whole matter evidently comes to this. If more wretchedness is desired than what is implied in confinement under the worst accommodation which the preservation of health admits, it must be meted out, either at the pleasure of the jailor, or the pleasure of the judge. The writers in the Edinburgh Review, and the Committee of the Society for the Improvement of Prison Discipline, speak as if they had never reflected upon the difference.
We do not mean to bestow a word upon that theory, which, for the prevention of offences, would make prisons scenes of wretchedness at the pleasure of the jailor.
The only question which can deserve a solution is, what mode of inflicting evil in a gaol can the judge make use for best attaining the ends of punishment? The answer is not difficult. Unless, where that course of reformatory discipline, which we shall delineate under the next head, suffices; and we allow, that, though it may be made to involve no small degree of punishment, there are cases in which it would not suffice; it will certainly appear, that prisons are not the best instruments of punishment.
A single consideration suffices for the proof of this proposition. Punishment in a prison loses the grand requisite of a punishment, that of engendering the greatest quantity of terror in others, by the smallest quantity of suffering in the victim. The principal, perhaps the sole end of punishment, is, to restrain by the example; because, with respect to the individual whom you have got, if you think society in any danger from him, you can keep him in sight, and no more is required. Yet, the language we hear about the tread-mill, and hear from mouths of high persons, implies, that hardly any thing more is in their minds, than the effect upon the individual sufferers. “Nothing finer than the tread-mill; a fellow who has been in the tread-mill never comes back again.” Be it so, but by your leave, this is a very insignificant part of the question.
The choice of expedients, for obtaining the punishment best adapted to the several cases for which a course of reformatory discipline does not suffice, belongs to another head of inquiry, and must, for the present purpose, be regarded as determined. All that it is necessary for us to show here is, that a prison is not the proper scene for it, nor the instruments of a prison the proper instruments. To render a punishment the most efficacious in accomplishing the great end of punishment, it must be a punishment calculated to make the strongest impression upon the senses, and, through the senses, upon the imagination, of the public at large; more especially of that part of the public who lie under the strongest temptations to the commission of similar crimes. But the punishments inflicted in a prison are withdrawn from the senses of the public, and seem as if they were intended to make the smallest possible, not the greatest possible, impression upon the imaginations of those who are to be deterred from crime. They are defective, therefore, in the most essential quality of a punishment, and can always be supplied by better means of attaining the same end.
The proper idea of a prison is that of a place of custody, and that alone. This idea ought to be clearly, and distinctly, and steadily preserved in the mind, in all disquisitions respecting prison discipline. Punishment and reformatory discipline may be annexed to safe custody; and in as far as they consist of a series of operations, requiring time for their performance, it is essential to them. As reformatory discipline consists wholly in such a series, imprisonment is a necessary condition of it. Since many, also, of the best kinds of punishment are not such as can be executed all at once, but require a period of time, imprisonment is equally necessary for these punishments. But though you must have safe-custody to enable you to execute certain punishments, and also to enable you to carry into effect a course of reformatory discipline, safe-custody is not the same thing with punishment, nor the same thing with reformatory discipline; and no conclusions can be depended upon, in which ideas so distinct are confounded.