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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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