PUNISHMENT THEORIES.

Auckland Star, Volume LIX, Issue 225, 22 September 1928, Page 11 (Supplement)

PUNISHMENT THEORIES.

AND OLD PENALTIES.

RECORD.

GROWTH OF A HUMANE SPIRIT.

(By HORACE WYNDHAM.)

According to Lombroso, the wrongdoer is realty an anthropological freak, and his misconduct is predestined, while the opposite school of thought declares the one responsible factor to be environment. The acceptance of these doctrines has, in certain parts of the world, led to some grotesque experiments in penology, for their logical implication is that punishment is not justifiable under any circumstances. This, in effect, was Tolstoy's view. It is also, no doubt, that of Bill Sikes. If an individual should be detected straying beyond the limits laid down (more or less arbitrarily) by the civilised community to which he belong*, he is held to have infringed the social code. His conduct has automatically become misconduct, and is met with repression or punishment. In the apportioning of puniFhment a point strongly urged by Carofalo was the necessity of examining the motives behind the wrongful act. While this is only elementary justice, it does not always meet with full measure of recognition from those who admin is te- the law. Thus, the balf-witted ploughboy who sets a rick on fire, merely to see it blaze, and the defaulting tradesman who deliberately burns his business premises (after first insuring the contents above their value) is each guilty of arson. Yet tbeir respective measure of criminality is very different. The main theories of punishment can be reduced to three: (1) Retaliatory, or retributive, (2) deterrent, and (3) reformatory. The first of these has itS: origin in a deeply-rooted and perfectly natural instinct; and, when the world was younger, it had the full sanction of the law-givers, as is revealed by the Old Testament. The theory of deterrent punishment is based on the assumption that a detected wrongdoer will not commit himself a second time, and that if the "example" made of him be sufficiently severe other people will be "deterred," or at least have their criminal proclivities restrained. If this were what happened there would be good reason for thie assumption. Unfortunately people break the law knowing very well the consequences, and often after having suffered from them. The theory of reformative punishment also requires a pronounced optimism to accept it. If the effect be to "reform" it is difficult to understand why there should be so many recidivists, at once the problem and the despair of lawmakers and prison-administrators. The fact that they exist shows that something has gone wrong with this part of the punitive system. The truth of the whole matter, in a nutshell, is that punishment protects society, and society has a right to be protected. If we are honest with ourselves (which few of us are), it will be admitted that all penal systems have their beginnings in vengeance. It is quite natural that this should be so, for vengeance is a reflex action, and a primary instinct and the oldest of human passions. This instinct of retaliation, too, was, in primitive times, regarded as a solemn duty devolving upon the injured family. The idea still holds good (or, rather, bad), in countries where the "vendetta" flourishes, and is thus part and parcel of the lex telionis theory of the Mosaic law. As, however, experience proved that the practice of giving the person wronged (or his able-bodied relatives) the right of inflicting private vengeance made social life somewhat difficult for other people, the State gradually took upon itself the function of judge and executioner. This assumption was the first real advance in constructive penology. Old Days and Old Ways. At an early period in England it was held that practically any wrong against the person could be met by restitution in money. According to his status, the injured party had his officially recognised grading and cash value. From murder to a black eye, there was a fixed tariff of 4 reparation." A rough-and-ready method of dealing with a conflict of testimony was also adopted. Thus, when two persons were accused of the same offence, and only one could be guilty, the practice was to condemn the uglier of the pair. Now that women serve on juries, such a system might conceivably lead to violent differences of opinion. Until the reign of Edward I. in England terms of imprisonment were seldom fixed definitely. A man might languish in a dungeon for years; on the other hand, he might be set free again almost at once. After tho reign of Henry VIII., however, a practice sprang up of fixing' a period that varied with the crime. It was an odd code, for carrying off a nun or stealing deer incurred precisely the same penalty, three years in durance. Until, within comparatively modern times humanity and the penal system in England were not on speaking /terms. Arrest implied guilt, and guilt implied appalling consequences to anvbody within the clutches of the Law. Mutilations, accompanied by dreadful barbarities, were, at a period when the world was younger, inflicted almost as a matter of course. William 1., who had no squeamishness in his composition, ordered that malefactors should not be killed outright, but gradually dismembered. Short shrift, too, 'for' erring women; and the one whose morals were found to be at fault was liable to lose her nose and ears. Then, people with * get-rich-quick" complexes were not encouraged; and the coiner had his hand chopped off, as also had the sheep-stealer and the, libeller; and in the year 1571 a man was actually boiled to death for putting arsenic in a family's soup. At any rate, this was the charge. Still in those days of faulty diagnosis, appendicitis was sften put down to "poisoning." Written in Blood. The reign of Henry VIII. could, where the severity of its penal system was concerned, almost have been written in blood. Within thirty-eight years a total of 72,000 men and women went to the block and the gallows; and the scourge, the rack, and the branding-iron were in constant requisition. Every village in "Merry England" had its whipping-post and its stocks, generally set up next door to the church. The stake was the regular penalty for petty treason (a classification which included the murder of a husband by a wife) as well as for heresy; and in 1786 Phoebe Harris was burned in front of Newgate for coining. These, and similar brutalities were enjoined "so that punishment should be inflcted, and also the soul preserved.'*

TIK Jhotj that raeb a. derideratmn was unrein secured lingered long. It vaa even Incorporated into the disciplinary code of the Royal Navy; and bluejackets were strong up at the yardarm and flogged round the fleet -for the punishment of vice and the maintenance of true religion.*' Since then we have progressed considerably.