Chapter 4

THE MANNER AND PHILOSOPHY OF PUNISHMENT.

The various punishments which are inflicted upon our law breakers are fines, imprisonment, flogging, and death.

=Fines= produce a very useful means of dealing with persons whose offences show a tendency to crime rather than to actual criminality. In many cases the self-respect of the offender has not been sacrificed, and while under arrest the sense of shame is deeply aroused. The shock from being brought face to face with the law is often sufficient in these persons to check any further tendency towards crime. The imposition of a fine will satisfy the claims of justice and inflict that degree of punishment necessary to fix the idea of abhorrence towards crime in the mind of the offender. In the case of boys charged with petty offences fining is often a most valuable means of punishment. To dismiss with a caution may lead to nothing; to imprison is invariably a most disastrous course to pursue; to flog within a gaol may be too severe but to fine is an excellent method. The parent has to pay the fine, and as the child's offence is generally due to the want of parental control and discipline, the punishment reaches right home and better control for the future generally results. Where parental control is non-existent, and there remains no possibility of creating it, other measures must be taken which will supply a substitute for the discipline of home life.

In some case of theft, minor assault, disturbing the peace, and other offences which indicate a momentary and not very serious lapse of self-control, or perhaps a somewhat vague conception of the supremacy of the law, fines serve all the purposes of justice. A four-fold restitution for all damage done might be taken as a standard to be increased or diminished in exceptional cases. In all these instances the culprit should be made to pay the fine himself even though it should require a fairly lengthy period in which to liquidate it. Section 16 of The New Zealand Criminal Code provides that the Court may exercise its own discretion in imposing a fine upon any person whose offence rendered them liable to a term of imprisonment. There are many cases, however, even of first offenders, in which fining is quite useless.

=Imprisonment.=--So much has been written describing the various prison systems in vogue in different parts of the world that it is unnecessary to do much more than briefly outline them here.

(1). The congregate system. In which the prisoners are associated together by day or by night or by both. Were the object to convert the prison into a school of crime, no better system could be devised. The standard of the lowest is the standard which must prevail under the congregate system.

(2). The solitary system. The extreme opposite of the congregate system. The prisoners are allowed to have practically no communication with anyone whomsoever. In some countries this system is made indescribably cruel. At Santiago in Chili in one part of the prison the inmates are employed upon useful work under most humane conditions, and yet in another part of the very same building a most barbarous system exists. Mr F. B. Ward (quoted in Penological and Preventive Principles) describes what he saw in 1893:--"In this splendid model institution there are noisome, slimy cells, where daylight never enters, in which human beings are literally buried alive. Under the massive arches of enormously thick walls, where even in the outside rooms perpetual twilight reigns, are inner cells, two feet wide by six feet long, and destitute of a single article of furniture. Until recently, those confined in them were walled in, the bricks being cemented in places over the living tomb. Now there is a thick iron door, which is securely nailed up and then fastened all around with huge clamps, exactly as the vaults are closed in Santiago Cemetery, and over all the great red seal of the Government is placed--not to be removed until the man is dead, or his sentence has expired. The tiny grated window is covered by several thicknesses of closely-woven wire netting, making dense darkness inside, so that the prisoners cannot tell night from day. There is no ventilation except through this netting, and no opening whatever to admit outside air into the tomb. Low down in the iron door, close to the ground, is a tiny sliding panel a foot long by a few inches wide arranged like a double drawer, so that food and water may be slipped in on shallow pans and the refuse removed. Twice in every twenty-four hours this panel is operated, and if the food remains untouched a given number of days, it is known to a certainty that the man is dead, and only then can the door be unsealed, unless his time is up. If the food is not touched for two or three days no attention is paid to it, for the prisoner may be shamming; but beyond a certain length of time he cannot live without eating. Not the faintest sound nor glimmer of light penetrates those awful walls. In the same clothes he wears on entering, unwashed, uncombed, without even a blanket or handful of straw to lie upon he languishes in sickness, lives or dies with no means of making his condition known to those outside. He may count the lagging hours, sleep, rave, curse, pray, long for death, dash his brains out, go mad if he likes--nobody knows it. He is dead to the world and buried though living. They told us that only one man has ever survived a year's sentence there. Those that survive six months are almost invariably drivelling idiots or raving maniacs."

It was under similar conditions to these that the assassin of King Humbert of Italy was incarcerated. Such a system shows a cruel vindictive rage towards the criminal. Terrible as the offender's crime may be, society must deal calmly and not lose self-control or give such an exhibition of its own criminal ferocity.

=The Separate System.=--Under which the prisoners are not allowed to associate with each other, but receive frequent visits from gaolers, warders, chaplains, and other persons who are likely to bring beneficial influence to bear upon them. Each man has his own cell, in which he sleeps and works. His exercise is conducted in such a manner as to prevent contact with other prisoners. He is allowed books and given daily instruction. Under this system perhaps the best results are obtained.

=The Silent System.=--A system under which the prisoners associate with one another but are forbidden to communicate. This system cannot be strictly enforced, and as it converts trifling matters into serious offences, it makes the prison life a state of petty persecution.

=The Combined System.=--A system which the prisoners are kept apart during the night but work together during the day. This system has been adopted in New Zealand, and in the following description of the value of imprisonment it will be understood that it is to this system that reference is made.

A man is sent to prison because he has proved himself unfit to be at liberty. His attack upon society was evidence of this, and society punishes him by taking away the liberty which he has thus abused. His dread of the prison increases as he comes under the shadow of its grim walls, and, once having passed within, a feeling of remorse and desperation seizes him. Its intensity or weakness will depend upon his temperament. He is soon told in the most emphatic manner that he is to regard himself as a felon; that he is to live with felons as a felon and observe the habits of a felon. He is given a uniform coarse in texture clumsy and grotesque in appearance and branded over with the broad-arrow and with his prison number. In this garb it is impossible for a man to preserve his sense of self-respect. If he should not be amenable to the prison discipline he may be held up to ridicule by being compelled to wear a parti-coloured uniform. However can a man be expected to reform who is held up to the ridicule of felons? It matters not from which class of life he is drawn, what his age is, or the nature of his offence, he is thrown into the company of the worst criminals in the land. If he were a cultured man, or a man who had known no associates in his crime, or if his æsthetic taste was considerably developed it matters not; he must do the same work and mix in the same company as the most ignorant and most brutal. To utterly disregard these qualities is to ignore the wide-open channels along which the most powerful reformative influences may be transmitted. If his recovery is to be considered these are most substantial assets. They are, as it were, "the general health" of the patient suffering from a local lesion. Yet our prison system not only ignores them but patiently sets to work to destroy them, as if their possession were an additional offence on the part of the criminal. Prisoners who try to keep aloof from their associates may often be made to suffer very considerably for it. Others, craving for some association, soon fall in with men whom they would have regarded, a few days previously, as impossible companions. The almost entire absence of elevating influences makes it easy for the concentrated power of evil to become irresistible. The gloom of the prison rises, the fear of the law vanishes and the new born tendency to crime becomes a confirmed habit. A man needs either a very strong will indeed, or else to be supported by powerful social traditions to enable him to resist the evil influences of prison life. A few men do resist and maintain their sense of self-respect in spite of all indignities and bad influences. Some sink as under a torture; some sink and are enticed and absorbed into felony. These last will plan their future crimes while they are serving their first sentence. Henceforth the prison is their home.

What purpose is thus served? Why should a man who has lost self-respect be continually reminded of it? If a man is diseased he is not placed amongst filthy conditions and the emblems of sickness and death crowded upon him. His removal from all unhealthy surroundings is the first essential necessary for his recovery, and the same should be observed with the criminal. He should be entirely removed from criminal surroundings and efforts made to eradicate the criminality which has expressed itself. Society has not the right to degrade a man, much less to school him in crime. If he prove absolutely incorrigible (a very difficult matter to ascertain) he should be banished from society for all time either by life-long imprisonment or by death. If not, the carrying out of his punishment must be performed with a very sacred sense of responsibility. All manner of means are taken to relieve and cure the physically sick; much greater surely should be the means employed to heal the morally and socially sick.

Another matter wherein our prison system might be justly criticised is the scale of diet provided for the prisoners. No one asks that they should be given luxuries, but it might at least be recognised even in prison that one man's food is another man's poison, that one fattens where another starves, and that variety is essential to good health. A prisoner who was serving a very long sentence once said to the author, "fancy having the same dinner every day of your life." Let one fancy it, boiled beef every day except Sunday, when roast beef is provided. The same meal every day, the same clothes to wear every day and all day, and the same routine to go through. What wonder is it that in the confirmed criminal many faculties appear to have atrophied. They have obeyed a law of nature. The popular comment is no doubt--"what else do you expect? They deserve it all, they have brought it upon themselves." We expect that our criminals should at least be treated like the by-products of our mills and factories, i.e. made the most of. Bitter prejudices must give way to the dictates of reason and humanity.

Practically the "combined system" produces no good results. It satisfies neither justice, humanity, nor economy. Neither is it efficient to afford protection to society. It satisfies prejudice and vengeance alone. The only system of imprisonment which is of any value and which the State ought to consider is one which converts the gaol in every essential into a "crime-hospital."

Concerning life imprisonment much apprehension exists in the public mind. The prevailing idea is that this sentence implies incarceration for a period of twenty years. This is due perhaps to the fact that in England the sentences of "lifers" are reconsidered at the end of that period, and in the majority of cases a pardon is granted. The New Zealand prison regulations contain this section (116) "No rule for the remission of life sentences will be laid down. Such sentences are passed on persons guilty of the very gravest offences; and the Governor will only extend the royal prerogative of mercy to such persons in exceptional cases." Under certain conditions life imprisonment is the only way of dealing with criminals who refuse to reform. Those conditions do not exist in our New Zealand prisons, and a life sentence served within their walls is the most cruel form of punishment our laws allow. The prisoner enters the gaol with a long, dark, hopeless future before him. As the years roll by not one ray of light brightens his lot. He can never better himself. He suffers, he is meant to suffer, the loss of all he holds dear (and even a murderer holds some things dear). This absolute loss, this complete severance of all ties, produces a most agonising mental state and afflicts the poor wretch with untold horrors. He is made to drag out an existence under most unnatural conditions, conditions in which every effort he makes towards self-improvement is a useless one, every aspiration is routed, the natural affections crave in vain for an object to fasten upon, and where an artificial atavistic process is set in motion so powerful as to defy the resistance of all in time. This is no imaginary picture, a man is a man, and one of the cruellest tortures to submit him to is to deprive him absolutely of hope and make good his evil because it requires an effort which is useless, and evil his good because it is easier and costs the loss of nothing. Perhaps the majority of lifers are those whose sentences have been commuted from the death penalty. Such a sentence is in reality the death penalty carried out under slow process extending over many years. Gradually remorse and despair do their work upon the natural instincts, the mind and the body. The man becomes brutalised, insane and dies. An exception here and there may be pointed out; but given twenty men of same age and good health, and sentence ten to twenty years, and ten to life imprisonment, and the chances are that (under reasonable conditions) the ten with the defined sentence will survive it, whereas of the lifers the majority will be insane within twelve years. The following testimony will, however, be of greater weight:--

The Directors of the State Prison in Wisconsin in their report for 1881 add:--

"The condition of most of our life prisoners is deplorable in the last degree. Not a few of them are hopelessly insane; but insanity, even, brings them no surcease of sorrow. However wild their delusions may be on other subjects, they never fail to appreciate the fact that they are prisoners. Others, not yet classed as insane, as year by year goes by, give only too conclusive evidence that reason is becoming unsettled. The terribleness of a life sentence must be seen to be appreciated; seen, too, not for a day or a week, but for a term of years. Quite a number of young men have been committed to this prison in recent years under sentence for life. Past experience leads us to expect that some of them will become insane in less than ten years; and all of them, who live, in less than twenty. Many of them will, doubtless, live much longer than twenty years, strong and vigorous in body perhaps, but complete wrecks in mind. May it, therefore, not be worthy of legislative consideration whether life sentences should not be abolished and long but definite terms substituted, and thus leave some faint glimmer of hope even for the greatest criminals?"

Sir E. Du Cane stated in 1878 before the Royal Commission on Penal Servitude Acts:--

"I myself do not think much of life sentences at all. I would rather have a long fixed term. I think all the effect on the public outside would be gained by a shorter period."

Mr W. Tallack, late Secretary of the Howard Association, writes in his "Penelogical and Preventive principles":--

"Of life imprisonment it may be conclusively pronounced very bad in even the best form of it. Years of enquiry and observation have increasingly forced this conviction upon the writer.... A fixed limit of twenty years would greatly aid the discipline of its subjects. And what is of more importance so far as the public are concerned, it would, in most cases, avail to practically incapacitate or effectually deter the persons who pass through it from any repetition of their crime. The mere natural operation of age, decay, and disease would tend towards this result; and not only so, but it would, in a considerable proportion of cases, render the limit of twenty years a virtual sentence in perpetuity by the intervention of death. But meanwhile the elements of hope and other desirable influences would be largely present, notwithstanding."

To say the least of it our criminals have a claim for humane treatment, and no sentence should have a greater duration than twenty years. The term also should be fixed when the sentence is imposed.

=Flogging.=--This is an extremely unpopular form of punishment, owing to its abuse in the old convict stations and in the army and navy. Yet there is a great deal to be said in its favour. In 1898 the Howard Association instituted an enquiry among the most competent authorities as to what were the best methods of dealing with juvenile offenders. Nearly 40 replies were sent in answer to their circular of enquiry, and with but one or two exceptions these replies advocated whipping as the most expedient method. The Chief Constable of Liverpool stated:--"Whipping has been found a most efficient and HUMANE punishment. During the last FIVE YEARS 489 boys were once whipped. Of these, only 135 have been again convicted. Of the 135, 44 were whipped for the second time. Of the 44 only 10 were convicted a third time, and 2 only for a fourth time. No other punishment can show such a record...."

Our Criminal Code describes a whipping as being a punishment of not more than 25 strokes with the cat-o'-nine-tails inflicted upon a person of not more than 16 years of age. A flogging is limited to not more than 50 strokes and not less than 25 inflicted upon a person of over 16 years. Three floggings at intervals for one offence is the maximum amount of castigation allowed.

A description of the "cat" may not be out of place. The handle is round and of uniform diameter of one inch. It is about 30 inches in length and is light as cork. The "tails" (nine in number) are made of cord similar to fishing cord, about an eighth of an inch in diameter and 33 inches in length. In each tail a strand is taken out, wound round and put back, thus making a bob. There are 27 of these bobs in all. A flogging with such an instrument would no doubt be very severe, but it need not draw blood nor leave marks for all time. A flogging properly administered should produce sharp stinging pain and leave no bad results whatever. Then it becomes a very useful punishment to use upon such men as those whose crimes are characterised by cruelty. Men who violate, torture, or frighten women, who are cruel to children or take advantage of the weak, imbecile or defenceless might well be punished with a flogging. In fact it is questionable whether any punishment is so effective. These men are cowards one and all; they do not dread the lazy life of the prison, but a flogging has great terrors for them, and its moral value is considerable. In bygone years men who were flogged were often worse than before. The flogging had demoralised them. These floggings were, however, shockingly cruel. Nothing is to be admitted but the sharp swishing and this, when properly carried out, is totally without any objectionable feature.

There seems no necessity to combine a flogging and a long term of imprisonment under one sentence. The maximum punishment of three floggings might be given within a period of two months, and the culprit then in most cases discharged. As to the advisability of ordering more than one flogging a great deal might be said. Fifty lashes and the man discharged within a week would be sufficient for the majority of cases. For a very brutal crime or for a second offence of the same nature, a second flogging after a period of days might be thought necessary. The very greatest care, however, must be exercised in the administration of this punishment. The crimes of brutality rightly arouse the indignation of the public, but there is no need to show a brute that society can be a greater brute than what he is. Being a brute, leniency invariably fails, but unimpressionable to these methods as his moral and humane instincts are, his skin remains sensitive, and through it his instincts may be appealed to and quickened. Flogging makes him consider that the practice of brutality is in direct variance to his own personal interests and comfort. From this he may be led to moralise further.

Gangs of boys who are becoming a nuisance to the neighbourhood they infest are quickly broken up if their ring-leader is treated to a dozen strokes that he will not feel inclined to boast about. The mercifulness of this punishment is seen in its power in thus effectively stopping the tendency to crime. Larrikins, unnatural husbands and fathers, brutes and torturers, cattle maimers and stack burners, all see their personal interests lying in a very different direction to that which leads to the "cat."

=Capital Punishment.=--The authority to take the life of a fellow-man is based on God's word to Noah, "whoso sheddeth man's blood by man shall his blood be shed;" and upon the abstract idea of justice "a life for a life." These words in no sense contain a command to us of this century to execute all murderers without exception. For the present state of civilisation a new principle has been evolved which is, that when a man shows himself to be unchangeably hostile to society then his life may be forfeited. As the methods of dealing with criminals improve so the word LIBERTY is being substituted for the word LIFE. The sin on the man's soul may be left to God; all that men has to deal with is his anti-social attitude. If impossible to change this attitude then either death or life imprisonment must result. This very question of possibility is so uncertain that few modern criminologists care to adjudicate, and most regard the death sentence as anticipating too much. Life-imprisonment, under the highest moral influences, becomes life-long by and only by the continued resistance of the criminal. It is not the objectionable form of punishment previously described for it encourages the man to put forth his best effort to improve, and substantially rewards these efforts, even to granting him his liberty if he persevere with them. Punishment by death is becoming more and more unpopular. The dislike of juries to bring in a verdict of "guilty" in a murder case is sufficient testimony to this. In the crowds who sign petitions for the reprieve of the condemned, the hysterical element is too prominent to make any other estimate possible. But the reaction is steady, and it will not be long before capital punishment becomes a thing of the past. To abolish it before a suitable substitute were provided would be mistake.

Gradually society is awakening to the fact that the condition of the criminal ought to be ameliorated, and that there can be no real amelioration which does not make definite efforts for the prisoner's reform. The aim should be to assist every man to recover by his own effort the place in society from which he has fallen. No man is incapable of improvement, and under a wise systematic discipline most men do improve. A remarkable witness is found in the experience of Dr Browning who was engaged as Surgeon-superintendent of convict ships between 1831 and 1848. Of one voyage from Norfolk Island to Tasmania he was in charge of 346 "old hands." These men had agreed to take terrible revenge upon some of their comrades who had been employed as constables over the others. Under Dr Browning's instruction and discipline their purpose was abandoned. He landed the men in Tasmania without having inflicted a single punishment upon the voyage. He remarks:--"The men were given to me in double irons; I debarked them without an iron clanking among them. I am told that this is the first and only instance of convicts removed from Norfolk Island having had their fetters struck off during the voyage, and being landed totally unfettered. They were almost uniformly double-cross-ironed and chained down to the deck, everybody being afraid of them. I was among them at all hours and the prison doors were never once shut during the day. To God be all the glory." Three Governors of Tasmania expressed their high opinion of Dr Browning's system and of its subsequent effects upon their behaviour. (Vide "Christianity amongst Prisoners." Howard Ass.:)

In the famous Dartmoor prison and at Borstal in Kent experiments are being made to secure a greater number of reformations among the younger convicts. It is too early to estimate the value of the systems being tried, but they are being watched with much hope and expectation. In America there is a decided tendency to substitute State reformatories for prisons, especially in the case of the young. The Elmira Reformatory has been established for more than a quarter of a century, and its claims to have reformed 82 per cent. of the men committed to it has been upheld by the special enquiry instituted in 1890.

If these different systems were more closely studied there would result a great awakening as to the possibilities of the criminal, and society would discover that its best interests were served by reforming its offenders and making them moral and industrious servants of the State, instead of by committing them to institutions where they were brought into contact with consecrated villainy and where the unwholesome influence is calculated to confirm them in criminal habits and make them a constant menace and expense to the community. That our criminal population is on the increase, and that the proportion of recidivists grows larger every year, is scarcely to be wondered at in the midst of such influences. Notwithstanding all that has been done to improve the state of prisons from what they were even fifty years ago, yet the motto "once a criminal always a criminal" is often too sadly true. The report of the English commissioners of prisons shows that amongst those who have been convicted during the year 1902, 51.9 per cent. of the men and 70.6 per cent. of the women had been previously convicted. In the past these results were regarded as inevitable. Now they are regarded with much disquietude. Formerly they were supposed to point to a defect in the criminal, now they are understood to prove a defect in the penal system. The reason for this defect lies in having regarded certain objects as primary which are in reality only secondary. These objects have been defined to be the deterrence of crime by the example of punishing criminals; the repression of crime by the infliction of punishment, and the protection of society as a consequence. The deterrent value of the penal system has been greatly reduced by the small amount of dread which it excites in the criminally disposed. The representative value is of a minus quantity. Crime is assisted more than it is crippled. The protection of society is secured only during the period of incarceration. At the end of that period the criminal must be discharged and he goes forth often a more skilful criminal than before and with a vow to take vengeance upon society.

Regarding these objects as secondary the reformation of the offender has been acknowledged as primary by criminologists, and they turned their attention to study the criminal pathologically, to enquire into the causes of crime and also to make trial of the best methods for securing reformation. "Punishment the principle and reformation the incident," was the theory of the old school. The New school reverses the order to "Reformation the principle and punishment the incident." Obviously this course renounces the old principle of retaliation and vengeance and embraces that indicated by Christ in his precept "bear ye one another's burdens."

=The Philosophy of Punishment.=--The threatening attitude of the criminal towards the peace and welfare of society makes it an obvious necessity that society should protect itself against him, otherwise he would soon master the situation and reduce social order to barbarism.

What are the steps which it must take? It must first remember that its right to punish is not an inherent, but a delegated one. Though its powers are sovereign in the sense that there is no appeal from them, yet they must not be exercised in an arbitrary way. So far as there is a capacity for the realisation of responsibility to God so far must that responsibility be observed. Where this responsibility is disregarded, society immediately becomes the greater criminal itself even though its deeds may be done in the name of the majority of its members. As history is not without examples of this abuse of a sacred trust neither is it without instances of the Divine interference expressed in the destruction of a community which had offended after this manner. This responsibility must be acknowledged firstly--in the end to be attained; and, secondly or subsequently--in the means by which it is attained. We are generally informed that our penal systems exist for the purpose of repressing crime, and that punishment is thus inflicted upon the criminal in order that others may be deterred from following his example. Reformation is sometimes suggested. The public, however, concerns itself very little about its criminals and much less about the objects which its penal system is supposed to secure for it. The attitude of the general public towards the criminal is undoubtedly a vindictive one. His sentence is discussed from this point of view only, viz.:--will the suffering that he will have to undergo be sufficient to accord with the enormity of the crime he committed? The end which is understood is simply suffering, expiatory suffering; suffering which neither man nor society has any right whatever to inflict upon a human being. The old principle of an eye for an eye, while in accord with abstract justice, was often made the occasion for abuse, and the largely prevailing conception of justice amongst us to-day is precisely the abuse of that same principle. Society does well in returning upon its criminals the consequences of their acts, but the consequences should be a natural return and not an artificial one. The criminal should see that by his attack upon society he is excluded from all the benefits of its system. He has isolated himself and this isolation is of itself miserable, and will, if persisted in, become intolerable. Its final state is Hell, a state in which society is destroyed while the social instinct remains and craves in its unquenched agony. It is perfectly right to show the wrong-doer the ultimate end of his chosen course, but there is no warrant for the strenuous effort which is made to force him towards it. A criminal's punishment should be made purgatorial and not internal. The old penology regarded him as a hopeless individual and proceeded with its hellish tortures without undue delay. Beneath its system no reforms were possible, and the fact that none were ever made, was pointed to in order to justify its horrors. Society took no interest in them whatever while they were being pushed lower and lower down the social scale, but met them at the lowest steps, and, halter in hand, gravely professed the utmost concern in their future and eternal welfare.

So far, society has failed to recognise the end of the punishment it is entitled to impose. In the words of Dimitri Drill, a Moscow publicist, the new penology expresses that it "renounces entirely the law of retaliation as end, principle, or basis of all judicial punishment. The basis and purpose of punishment is the necessity of protecting society against the evil consequences of crime either by the moral reclamation of the criminal or by his separation from society; punishment is not to satisfy vengeance." We must not jump to the hasty conclusion that herein is meant that the criminal must be treated very gently and coaxed back to more virtuous paths. What is meant is that his punishment should be made purgatorial and not infernal. The process of reclamation is accompanied by far sharper pains than those which are expiatory, but they are the pains of a healing surgery and not those of a soul destroying brutality. Where the means for reclamation fail then separation from society is advocated. Separation in the midst of influences which would always tend to awaken the desire to reform and which would give immediate assistance to that desire when awakened.

Thus the recognition of this fact that the authority to punish offenders against its law has been, by God, delegated to the social institution, brings with it a recognition of the responsibility which accompanies such authority.

In primitive times most offences were punished by the death penalty, not as a vindictive measure but because the offender was hopeless and society helpless. That is, the social state being of a very simple order, any infraction of its laws would declare the offender a most pronounced criminal, bitterly hostile to society and irreclaimable by such social machinery as then existed. The death penalty when inflicted must ever be so regarded. Not as a life for a life but as the punishment inflicted upon one who has by his own conduct given complete evidence that his recovery to the social state is impossible. In this century of civilisation it is incumbent to look upon the criminal as being in a measure a by-product of society and to deal with him accordingly. Outside of society crime is impossible, therefore society accounts for crime and is also in a measure responsible for it. To this measure exactly (although the measure itself can never be determined with exactitude) is the criminal by-product. In a large measure he is responsible (entire responsibility is conceivable), and it is this sense of responsibility which makes it possible to carry out his treatment.

Large industries find that their by-products are an important asset and to disregard them would be ruinous. Mr Frazer in his book "America at Work" states that the expenses of the meat-packers of Chicago for 1901 amounted to £150,244,848. The sales of meat realised £124,263,998, and yet a net profit of £6,767,638 resulted. What appears to be a paradox is explained by the fact that a sum of no less than £32,748,488 resulted from the sale of by-products. All the waste must be turned to dollars.

Commercial advance has certainly out-stripped social advance, and apparently for the reason that whereas in commerce a pig's tail is regarded as an important asset, in our social system the criminal and the weakling are regarded as a heavy liability. When the point of view is changed society will advance more rapidly. So, too, society finds that it must utilise its by-products and to devise means which it can bring to bear upon the criminal, so as to bring him to a state of usefulness. The enormity of the crime and the degree of criminality are alike impossible to estimate, therefore it is also impossible to define a punishment which makes an attempt to recognise any of these qualities.

It is, however, quite possible to determine within very fair limits the continuance of the criminal habits, also the value from a reformatory point of view, of various social influences, and further there exists the power to apply these influences. To sum up--society possesses within itself the power to reform its criminals (to utilise its by-products) and to determine when they have been reformed.

Separation from society is rendered absolutely necessary by the criminal's own behaviour, if by his behaviour he shows that he is not capable of using freedom profitably. But if his separation is to serve any real purpose whatever it must be accompanied by an educational process which will work him back to that point where he left the social track and then so propel him forward that he may recover his lost ground, and when restored to society be enabled to identify himself with its progressive system.

So far our penal system is a mistake. Whatever it may be theoretically, practically it is only vindictive. Its failure has caused some to despair and others to reflect.