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Collection: The Collected Works of John Stuart Mill

396.: PUNISHMENT OF CHILDREN SUNDAY TIMES, 2 JUNE, 1850, P. 2 - 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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396.

PUNISHMENT OF CHILDREN

SUNDAY TIMES, 2 JUNE, 1850, P. 2

Edward Vaughan Hyde Kenealy (1819-80) was tried before Lord Campbell for assaulting his illegitimate six-year-old child, Edward Hyde, on 11 May, 1850. See “Law Intelligence. Court of Queen’s Bench—Saturday. The Queen v. Kenealy, Esq.,” Standard, 13 May, 1850, p. 7, from which the quotations are taken. Kenealy, who had acknowledged the child and taken responsibility for rearing him, was sentenced to imprisonment for only one month; the punishment was not decreed until 30 May (The Times, 31 May, p. 7). This article, the fourteenth by Harriet Taylor and Mill on injustice and cruelty (for background, see No. 303), is the seventh leader in the “Political Enquirer,” headed as title. It is described in Mill’s bibliography as “A leading article in the Sunday Times of 2nd June 1850, headed ‘Punishment of Children.’ Very little of this article was mine.”

(MacMinn, p. 75.)

the case of edward kenealy, a man holding the rank of a barrister, who has been convicted by the Court of Queen’s Bench of an assault on his illegitimate child, a boy six years old, cannot be allowed to pass without comment. The facts of the case, disgusting though they be, are such as we are accustomed to see in every day’s newspaper, and no wonder, while, not police magistrates only, but a Chief Justice, like Lord Campbell in the present case, treats ferocious personal violence as if it were the merest peccadillo—a pardonable overstepping of the strict limits of the law, hardly deserving any moral blame. We shall first quote the evidence of the surgeon:1

I saw the child on the day after it was found. I found a mark round the front and sides of the neck, but not on the back part of the neck. On the front of the throat the skin had been removed by pressure. Scabbing had taken place in some portion. Others were undergoing suppuration, that had been produced by pressure, or some substance rubbing. The whole of the back, from the shoulders to the lower part of the posteriors, was covered with bruises. They were long in form, as if inflicted by castigation, and were in different states of inflammation. From the posteriors to the ankles there were marks of the same castigation. Great violence must have been used. From the shoulders to the hands there was evidence of the same kind of treatment, and apparently by the same instrument—by a rod or cane.

The following were Lord Campbell’s remarks:

There must be a verdict of guilty against the defendant. His chastisement of the child, for some unaccountable reason, had been infinitely beyond moderation. Though there was no doubt that a parent had a right to correct a child, and that the defendant here seemed to have had the welfare of the child in view, still, after the evidence of the surgeon, it was clear that he had done what the law did not justify. It was impossible to say that this was moderate chastisement of a child six years old.

It will hardly be believed, after such evidence, and after such an opinion given by himself on the evidence, that Lord Campbell, in his address to the jury, could say—

He rejoiced that the whole truth had come out, and that no serious stain would attach to the character of Mr. Kenealy, who appeared to have taken some care of this child, which was his illegitimate child, and to have bestowed pains upon it in giving it an education. Was not the charge here made out? The defendant, though not the legitimate father of the child, was its parent by the law of nature, and was entitled, under the circumstances of its living with him, to all the authority and rights of a father. Still, in exercising those rights in the way of punishment of the child, he was bound to observe moderation. The jurors would declare whether, with a good conscience, they could say that he had done so; for if not, as immoderate punishment could not be justified in law, he must be found guilty.

Whether because the offender’s station in life was nearer than usual to his own, or from a total absence of moral sense in the mind of the judge, we know not, but his address is almost an apology to the prisoner for convicting him; and he tells the offender—he, the guardian and vindicator of the law, declares to a man who, in his own showing, has broken the law, by such treatment of a child of tender years as the surgeon’s evidence discloses, that “no serious stain would attach to his character,” and this because the poor infant said in his evidence that the prisoner kissed and gave him playthings and toys, and taught him “to spell, and read, and say his prayers,” as if the most brutal parents in anything like Mr. Kenealy’s rank of life did not do such things as these. Lord Campbell would seem to have adopted the doctrine of Mr. Whately,2 the prisoner’s counsel, who thought it “a thing to be applauded,” in the defendant, “that he did not, like many other people, leave his illegitimate child to poverty and misery.”

Why does not the unbrutal part of the public—the part which does not sympathise with cruelty, rouse itself and demand of the legislature how much longer the flogging of children shall be sanctioned by law? On the flogging of grown-up persons public opinion is made up. That practice, at last, by force of general feeling against the vehement remonstrances of those who had the power of inflicting the brutality, has been almost abolished.3 But it is assumed, and goes uncontradicted, that a punishment which is brutalising and degrading to grown men is quite fit and proper for helpless infancy; unfit to be inflicted, according to prescribed rules, by men called judges, after solemn inquiry and in the full light of publicity, but, “by the law of nature” (as Lord Campbell says), quite proper to be administered at discretion by men called fathers in the secrecy of their own houses, subject, when some peculiarly atrocious case accidentally comes to light, to a gentle admonition. It is only the other day that the House of Commons decided, after a long debate, that boys might be scourged at the discretion of two magistrates, but that men might not; the distinction, it appeared, between men and boys being the difference between thirteen years and fourteen.4 It is as possible to govern children without the aid of the lash as grown persons. It is even much easier; their bad habits, if they have been allowed to acquire any, not being deeply rooted. A parent or teacher who cannot rule without the lash shows as much incapacity as brutality. There is no difference of nature between grown persons and boys, that what is most deeply degrading to the character of the one should not be so to the other. If the boy has no consciousness of his degradation the worse for him: it is a proof that his character is irreclaimably imbued with it. Mr. Whately said that they had all—judge, jury, and counsel—been flogged in their boyhood, and were much the better for it. This merely proves that Mr. Whately’s sense of degradation depends, not on the fact, but on other people’s opinion, and that nothing is revolting to him which is legal and customary. Take any naturally sensitive boy, who has been habitually flogged, and one who has never suffered that indignity, compare them, observe the difference in self-respect, and in all that depends on self-respect, which will mark those two human beings throughout life? On a boy of a dull, hard nature, its effect is to render him ten times harder than he would be without it—to qualify and prepare him for being a bully and a tyrant. He will feel none of that respect for the personality of other human beings which has not been shown towards his own. The object of his respect will be power. He will crouch to power in others, and will have nothing in his own nature to prevent him from trampling on those whom he has power over. If he does not do so, it will be from nothing better than fear of opinion or fear of punishment.

[1 ]Stephen John Burt, M.R.C.S., of 26 Farringdon St.

[2 ]William Whately (1795-1862), barrister, Q.C. from 1841.

[3 ]See No. 307, n1.

[4 ]See the debate in PD, 3rd ser., Vol. 110, cols. 767-83 (24 Apr., 1850), on “A Bill for the Correction and Reformation of Juvenile Offenders and the Prevention of Juvenile Offences,” 13 Victoria (6 Mar., 1850), PP, 1850, III, 465-74 (not enacted).