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Subject Area: Political Theory
Collection: The Collected Works of John Stuart Mill

383.: CORPORAL PUNISHMENT DAILY NEWS, 14 JULY, 1849, P. 4 - John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXV - Newspaper Writings December 1847 - July 1873 Part IV [1847]

Edition used:

The Collected Works of John Stuart Mill, XXV - Newspaper Writings December 1847 - July 1873 Part IV, ed. Ann P. Robson and John M. Robson, Introduction by Ann P. Robson and John M. Robson (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1986).

Part of: Collected Works of John Stuart Mill, in 33 vols.

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383.

CORPORAL PUNISHMENT

DAILY NEWS, 14 JULY, 1849, P. 4

This article responds to the report “Police. Southwark,” The Times, 6 July, 1849, p. 7 (from which the quotations are taken), concerning the case of Alexander Smith, heard on 5 July before Isaac Onslow Secker (1799-1861), barrister, magistrate at Greenwich and Woolwich. This unheaded fourth leader, the seventh jointly authored by Harriet Taylor and Mill on injustice and cruelty (for background, see No. 303), is described in Mill’s bibliography as “A leading article on corporal punishment, in the Daily News of 14th July 1849. A joint production, very little of which was mine.”

(MacMinn, p. 71.)

while, in the popular discussions on criminal law, the idea of punishment is more and more sunk in that of reformatory discipline; while what were once deemed the main ends of penal infliction—retribution to the culprit, and the deterring of future offenders—are well-nigh sinking out of view, and prisons, in the opinion of many well-meaning persons, are regarded as little more than a sort of hospitals for the morally sick, where they are to be cured of their soul’s diseases by mild alternatives; while this twist of the moral sentiment in the direction of shortsighted tenderness is increasingly manifest; in the actual administration of our criminal law, the tide is setting in the contrary direction, towards a revival of the brutal and barbarous practices of the middle ages and of the East. Amidst our talk of reformatory treatment we are returning to the most demoralising, the most brutalising, because the most degrading of punishments, the bastinado. There have been other instances lately of this, but none hitherto that comes up to what we extract from a Southwark police report of Friday last:

Alexander Smith, described as a commission agent, was brought before Mr. Secker, charged with illegally pawning a gold watch, value 20 guineas, the property of James Mills, the master of a West India trader.

It appeared that the complainant formed a casual acquaintance with the prisoner, who prevailed upon him to accompany him to Astley’s to witness the horsemanship.1 Previously, however, to their entering the theatre, the prisoner suggested the propriety of the complainant leaving a valuable gold watch in the hands of the landlord of a public-house adjacent, where they had partaken of refreshment, adding, that the article would be much safer there than at the theatre. The complainant at once assented to this suggestion, and the watch was accordingly left with the landlord of the house. Before the performance was over, the prisoner made some frivolous excuse, and quitting the theatre proceeded to the public-house and got possession of the complainant’s watch, which it was subsequently ascertained he had pledged at a pawnbroker’s shop for 10l. Upon the discovery of the theft he promised to redeem the article, or pay the full value, neither of which he had since done; and the complainant, finding that there was no chance of obtaining restitution, gave the prisoner into custody on the charge of illegally pawning the watch.

The prisoner, a well-dressed middle-aged man, said that he had given the complainant his note of hand to pay at the rate of 10s. a week until the debt was paid.

Mr. Secker said that the mild term of “debt” could not be applied to such a fraudulent transaction. The prisoner had acted a most dishonest part in taking advantage of the absence of complainant to obtain possession of his watch.

The complainant admitted having taken a written guarantee from the prisoner, but said he did it for the purpose of strengthening the case against him.

The prisoner asserted that the watch was given him to pawn, which was flatly contradicted by the owner.

Mr. Secker denounced, in strong terms, the conduct of the prisoner, and sentenced him to pay a penalty of 5l. for illegally pawning the watch, besides 12l., the lowest value put upon the watch; and, in default of payment, to be committed for three months; and that, in addition to the above, if the prisoner omitted to pay the above sums within three days of the expiration of his imprisonment, he should be once publicly whipped within the precincts of the gaol.

The prisoner, who heard the latter part of the sentence with astonishment depicted on his countenance, was then removed from the bar.

Well might he be astonished; and his astonishment will be participated, we believe, by the majority of readers. We know that the office of police magistrate is one to which a man is appointed usually because he is fit for nothing else; because, being too stupid to fill any other appointment, he is thought good enough to be the dispenser of law, justice, and moral instruction to those who most need all these. But even a Mr. Secker must, we suppose, have some law to bear him out in such a decision as this. What law? and how has such a law been smuggled through parliament? a law permitting the infliction of the bastinado for a pecuniary fraud—by which, if impartially enforced, half the bankrupts in England would be publicly flogged, and a London magistrate would become a Turkish Cadi. But there is another peculiarity in the case which must be wholly Mr. Secker’s. The flogging, after all, is not to be inflicted for the offence. The punishment of that is a fine of 5l., added to another of 12l., or, “in default of payment,” to be committed for three months. But, after suffering the imprisonment, he is still “to pay the above sums within three days,” and to be flogged if he “omits” to pay them. He is to be flogged therefore, not for the fraud, but for being unable to pay 17l. This is a person to be entrusted with the power of flogging!

But the pranks of police magistrates are not the worst of the political and social vices which this case illustrates. It exemplifies the total absence of true moral feeling which pervades our criminal legislation and all the functionaries who administer it, from the judges of the Court of Queen’s Bench down to this Mr. Secker. If a brutal punishment can ever be appropriate, it is in the case of a brutal offence. Every day’s police reports contain cases of ruffianly assaults, committed in the mere wantonness of brutality, against creatures whose sole offence is to be inferior in physical strength, oftenest of all against helpless children, or the slaves called wives, whose death, by a long continuance of personal torture, has of late been so frequently brought to light, and without a single exception so leniently passed over, that this has apparently become one of the safe ways of getting rid of those incumbrances. To such ruffians as these the degradation of corporal punishment would be very suitable. It does not make them brutes, it only stamps them as what they are. A coward who beats another because he is the stronger, would perhaps even be benefited by finding himself for once in the hands of a stronger than himself, and tasting of the degradation he has inflicted. But who ever hears of corporal punishment for assault? One or two months’ imprisonment is all we hear of in the most atrocious cases; while, if property is in question—if pounds, shillings, and pence have been tampered with, years of imprisonment, with hard labour (not to mention transportation) are almost the smallest penalty. And this is not peculiarly the fault of the police magistrates, whose power of inflicting punishment for assault is very limited. It is the crime more especially of legislators and of the superior courts. They, it seems, have yet to learn that there is a thing infinitely more important than property—the freedom and sacredness of human personality; that there is an immeasurable distance in point of moral enormity between any the gravest offence which concerns property only, and an act of insulting and degrading violence perpetrated against a human being. Mankind could go on very well, have gone on in time past (as well as they have ever yet gone on), with property very insecure. But subject to blows, or the fear of blows, they can be no other than soulless, terror-stricken slaves, without virtue, without courage, without peace, with nothing they dare call their own. Yet because persons in the upper and middle ranks are not subject to personal outrage, and are subject to have their watches stolen, the punishment of blows is revived, not for those who are guilty of blows, but for middle-aged men who pawn watches. Is this to be endured?

A few weeks ago, the punishment of flogging, in the case of the young man who shot at the Queen, was omitted, it is said, at the special desire of the Queen herself.2 The forbearance was uncomplimentary to the legislatorial wisdom which had recently enacted that penalty as peculiarly fit for that particular offence: but no one can be surprised by an example of good sense, good taste, and good feeling, given by the Queen. The crime of Hamilton was not of a degraded or brutal kind, though of a wicked and grave kind, deserving, in truth, and requiring, a severer punishment than it received. To refuse so disgusting a tribute as the revival of a brutalising degradation as a punishment for offences against herself, was a worthy lesson to legislators and judges; and it was magnanimity, not like but most unlike a sovereign, to punish so serious an offence only as if it had been directed against the meanest subject. Would that her Majesty would take in hand this vast and vital question of the extinction of personal violence by the best and surest means—the illegalising of corporal punishment, domestic as well as judicial, at any age. We conscientiously believe that more large and lasting good, both present and future, to the moral and social character of the whole people, would be achieved by such an act of legislation, than fifty years of legislative efforts without it would be required to supply.

[1 ]A very popular theatrical equestrian establishment, originally called Astley’s Royal Amphitheatre, established in 1798 by Philip Astley (1742-1814).

[2 ]A pistol (charged only with powder) was fired at Queen Victoria on 19 May, 1849, by William (or John?) Hamilton, an Irish bricklayer’s mate (b. ca. 1826), who was tried at the Central Criminal Court on 14 June, when he pleaded guilty and was sentenced to transportation for seven years. It was reported at the trial that the Queen expressly desired that he not be punished by flogging. See The Times, 21 May, p. 5, and 15 June, p. 7. For Harriet Taylor’s energetic and decided comments on this matter, in a letter of 10 July to Mill that undoubtedly prompted this article, see Hayek, John Stuart Mill and Harriet Taylor, pp. 159-60.