Theological Seminary,

RICHMOND, VIRGINIA.

SESSION OPENS LAST WEDNESDAY IN SEPTEMBER.

SESSION CLOSES LAST WEDNESDAY IN MAY.

FACULTY.

THE REV. WALTER W. MOORE, D. D., LL. D.,
Professor of the Hebrew Language and Literature.

THE REV. CHARLES C. HERSMAN, D. D., LL. D.,

Prof. of Biblical Literature and the Interpretation of the Testament.

THE REV. THOMAS C. JOHNSON, D. D., LL. D.,
Professor of Ecclesiastical History and Polity.

THE REV. THOMAS R. ENGLISH, D. D.,
Professor of the English Bible and Pastoral Theology.

THE REV. GIVENS B. STRICKLER, D. D., LL. D.,
Professor of Systematic Theology.

For catalogue, or other information as to course of study, rooms, etc., apply to

Dr. ENGLISH,

Clerk of Faculty and Intendant,

Richmond, Va.

THE

Presbyterian Quarterly.

No. 50--OCTOBER, 1899.

I. WHY DO WE PUNISH CRIME?

Vacationing at Saratoga one summer, I saw bulletined for a hearing at one of the sessions of the American Social Science Association, there holding its annual meeting, this topic: "The punishment of crime. Is it for reformation or retribution?" I dropped in to hear the discussion. The paper was by a New York lawyer of repute, and it was an enthusiastic advocacy of the reformative idea in the administration of law. The topic has had wide attention in recent years. The right understanding of it is of vital concern to good government and public weal. The principles involved concern all government, human and divine. Why do we punish anywhere? Why does a parent punish in the family, or an officer in the State? And if God punishes, why does he punish?

Let us first define some terms, common to this discussion. Justice, in the exact formula of the ancients, is suum cuique -to each his own. The figure representing it is the scales held in perfect balance. It is exact requital of desert.

Law, in brief and apart from a mode of procedure, is command imposed by authority. Essential to the idea of law is sanction. Without penalty, or punishment for disobedience, law sinks to the level of mere advice. It is no longer law, but counsel.

Punishment is inflicted for the violation of law; penalty, pain, penal sanction. Grotius defines it, "the evil of suffering, inflicted on account of the evil of doing."

desert of wrong-doing.

It is the

Crime is an offence against human law. A criminal is a breaker of human law. The difference between crime and sin is this while each is a violation of law, crime is a violation of human law and sin is a violation of divine law. It may easily come to pass therefore, that what is a sin in a given case is no crime, and what is a crime is no sin.

With these definitions in mind, let us consider the end of punishment, or the reason for its infliction.

There are three views that have had more or less of public advocacy, viz: the retributive, the protective and the reformative.

The retributive is the oldest, looking chiefly to the crime.

The protective is the second born, looking to the safety of society.

The reformative is the latest, looking to the criminal, and seeking solely his reformation.

Taking the liberty of reversing this historic order, let us give the last theory our first attention. By this theory, the prison becomes a reformatory and the prisoners are classed as lunatics and idiots are, i. e., as wards of government. The paper heard at Saratoga in advocacy of reformation as the end of punishment, distinctly and explicitly held that, "by the true psychology of crime the prisoner demands governmental care and treatment, on the same grounds with the lunatic, the idiot, the blind and the dumb." (Journal of Science, January 1894, p. 79). And further, that "prison discipline" must be therapeutic; that "cure" must set the limit to the duration of imprisonment, and that "the incurable must be confined for life."

That this writer is not extreme in putting forth the reformatory theory, will be perfectly apparent from other

H

and leading advocates. Prof. Collin, of Cornell University, says: (Address before Massachusetts Prison Association, December 10, 1893) "The true conception of the functions of a prison is that it shall be a hospital for the treatment of depraved bodies and diseased souls."

Sanford M. Eveen, late Judge of Supreme and Criminal Courts of Michigan, in his work on "Crime" states that he was accustomed while on the bench to "advise jurors that they were summoned as a council of physicians to diagnose the prisoner's case as one alleged to be morally diseased; and if such was proven to be his condition, the proper treatment ought to be administered for his cure upon the same principle in all respects as in the case of an insane person." The report of a Committee on Prisons, 1881, to the Legislature of California, says: "All persons convicted of crime shall be deemed wards of the State and committed to a Board of Guardians." And the Michigan State Board of Corrections and Charities in their fifth biennial report, 1879-80, commenting on the fact that eight convicts were sent to prison in one year in that State for assault with intent to commit murder, I for 45 years, I for 25, I for 15, I for 9, I for 6, 1 for 5, I for 2 and I for I, say, "If there were high courts or commissions in lunacy, and they were to commit eight maniacs, who had attempted murder, to an insane hospital for terms varying from 1 to 45 years, it would be at once apparent to all that the high court itself was wildly insane. If on the contrary, the would-be murderers were sent to a hospital until wholly restored to reason, the conduct would appear to be reasonable."

Clearly, therefore, the reformative theory has this as its fundamental idea, that the criminal is a person morally diseased, whether by heredity or environment, who is to be placed in hospital or asylum for therapeutic treatment and kept there until he is cured.

This theory is certainly open to some very serious and damaging objections.

In the first place it not only plays havoc with accepted terminology, but revolutionizes some fundamental convictions, and even challenges some of our primary beliefs.

Our courts are no longer courts of justice, but courts of inquiry or commissions in moral lunacy. Juries are councils of physicians. Prisons are hospitals. Prisoners are patients. Nay, more than this: there can be no crimes and no criminals, for there is no law. There can be no law, for there is no punishment. Law is mere opinion until a penalty is attached for its violation. There can be no punishment, for "by the true psychology of crime (although there can be no crime, for crime implies responsible violation of law) the criminal (so called) demands governmental care and treatment, on the same grounds with the lunatic and the idiot." We do not inflict penalties on lunatics and idiots. We put them under restraint, so that they may not do harm. And then we treat them, but we do not punish them.

Thus the theory degrades human nature. For it assumes that man is not responsible for his evil action. Law and punishment recognize free agency, are based upon voluntariness, and therefore honor human nature. This curative theory makes man a victim of circumstances, environment, heredity; and robs him of his peculiar glory, viz: the endowment of free will-the self-election of the right and the wrong. If immorality is a mere disease to be cured in hospital by physical and mental discipline, then human freedom is a delusion. But that theory flies right in the face of the conscience of the race. It is guilt we punish, not misfortune. "The thief doth fear each bush an officer." "Conscience doth make cowards of us all." "It mutinies in a man's bosom." "Out damned spot." "What, will these hand's ne'er be clean ?" "Here's the smell of blood still. All the perfumes of Arabia will not sweeten this little hand." "Which way I fly is hell. Myself am hell."

These whips and stings of conscience prove that the trouble is too deep for hygienic treatment.