Abstract
Tocqueville and Beaumont briefly provide the historical development of the idea of the penitentiary system in America. Penitentiaries were invented as an alternative to the death penalty and a means of reforming prisoners. Tocqueville and Beaumont argue that two different disciplines in the penitentiary system developed by trial and error and via competition between Pennsylvania and New York. Eventually, the successive emendations to prison discipline in Auburn, Pittsburg, Cherry Hill, Wethersfield, and SingSing penitentiaries led to two rival theories: absolute solitude with labor, and labor in common silence. The authors also review reasons why some states have not yet begun penal reform in America and praise the houses of refuge established in New York for juvenile delinquents.
*Historique, used in the title, differs slightly from histoire: Histoire is the narrative of actions, events, and circumstances; whereas, historique is the “simple recitation of facts in their order and circumstances.” See Dictionnaire 1: 892–3.
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Notes
- 1.
*Lieber most often translates “régime” as “discipline ” (Beaumont and Tocqueville 1833, p. 1). There are many possible English translations of “régime:” system, discipline , discipline , regulation, etc. In the French, “régime” can also mean “order,” “diet,” or “all legal or regulatory provisions or practices governing an institution, establishment, or a particular activity.” Tocqueville and Beaumont use “régime” in this latter sense to argue that the penitentiary has a specific organization that enforces a particular rule of life upon inmates. Although the English sense of “regime” has acquired negative or totalitarian connotations in modern times, in the tradition of political thought the word signifies a peculiar system of government, mode of organization, or administration , coming from the Old French and Latin “disciplinen .” “Regime” in the classical sense (politeia in Ancient Greek) signified a form that the political order takes, embodying a specific way of life in a society directed towards a particular goal. Notably, “régime” also differs from “système,” which means in a political sense: “collection of organizational methods, practices, and procedures designed to ensure a defined function.” Thus, in order to both account for the peculiar meaning of “régime”as well as to distinguish “régime” from “système” (also used in the text), it is translated consistently as “discipline ” unless referring to “diet;” the phrase “régime d'emprisonnement” is translated “system of imprisonment.” The French “discipline ” is translated as either “rule” or “discipline .” See Dictionnaire 2:599, 805; “Trésor de la Langue Française informatise” (Hereafter: TLFi) “système” and “régime.”
- 2.
*In using the word “funeste,” Tocqueville and Beaumont suggest that complete solitude can have fatal effects, i.e. consequences leading invariably to death. “Funeste” can also imply what relates to unhappiness, ruin, or desolation; i.e. “negative,” “disastrous,” or “regrettable.” I keep the more dramatic interpretation here because the authors seem to indicate that death, rather than simply depression or other negative psychological effects, are the ultimate effects of this penal discipline. There is a connection between our psyches and our physical bodies.
- 3.
*The French word is “barbarie ,” which could also be translated “barbaric” in contemporary usage.
- 4.
Today, the death penalty is pronounced by the Code of Pennsylvania only in the case of assassination, poisoning and arson.
- 5.
These cells were and still are thirty in number in the Walnut Street prison.
- 6.
See Letter from Samuel Wood to Thomas Keltera. Philadelphia, 1831. See summaries of the original and successive efforts to improve the rule of the prison at Philadelphia, and to reform the criminal Code of Pennsylvania , by Roberts Vaux.
- 7.
See Des Prisons de Philadelphie, par un Européen (La Roçhefoucauld-Liancourt ), in the IV year of the republic. Paris.
- 8.
*While Lieber translates “la contagion” as “contamination,” I have chosen to keep the medical undertones as implied in the French.
- 9.
See Statistics, financial part. See Report to the Legislature, by the Comptroller of the State of New York. 2 March 1819. See the Fifth Report of the Boston Prison Society, pages 412, 423, and 454. See also Report on the Connecticut Prison and on that of Massachusetts.
- 10.
See our Statistical Observations on the Various States of the Union, No. 17, Comparative Table of Re-committals. “It is a sad truth that most of the convicts do not reform during their detention, but, on the contrary, are hardened in their wickedness, and are, after their liberation, more vicious and more consumed with crime than they were before” (Report of 20 January 1819, to the New York Legislature).
- 11.
The Auburn prison, that is to say the South Wing, built in 1816, 1817 and 1818, contained sixty-one cells, and twenty-eight chambers each of which afforded room for eight to twelve convicts.
- 12.
*Stephen Maddux pointed out that the phrase “absoudre le principe” has a vague and peculiar meaning in its French usage. The idea is that, rather than discarding the principle itself as defective, Pennsylvanians sought out a way to blame the execution of the principle.
- 13.
Cherry-Hill is the new penitentiary of Philadelphia, implemented only in 1829.
- 14.
*Or, “bid fare.”
- 15.
*Here I have taken Lieber’s translation; the more literal rendering is: “above human forces.” “Des forces de l'homme” is a poetical plural, meaning “the resources that an individual human being has.”
- 16.
*Lieber has “destroys,” but it is noteworthy that Tocqueville and Beaumont use the same word to describe the condition of prisoners when corrupted or when subjected to complete solitude without labor: consume. The word describes physical withering and/or moral dejection of a person (TLFi).
- 17.
*Lieber does not translate “soumis au même régime,” perhaps to detract from the implication that absolute solitude as a penal measure is dangerous to the health of prisoners.
- 18.
See Report of Gershom Powers, 1828, and handwritten note of Elam Lynds.
- 19.
*Instead of “fate,” Lieber translates as “success” (Beaumont and Tocqueville 1833, p. 6).
- 20.
*“Discipline ,” according to TLFi, has two primary meanings: in the first place, “discipline ” can mean “instruction, moral direction.” In the second place, discipline can mean “imposed rule.” It is in the latter sense that we translate the word.
- 21.
[Public] opinion in the United States generally attributes to Mr. Elam Lynds the creation of the system finally adopted in the Auburn prison. This opinion is also that of Messrs. Hopkins and Tibbits, charged, in 1826, with inspecting the Auburn prison. See p. 23; and of Mr. Livingston , see his Introduction to a system of penal laws, p. 13, edition of 1817, Philadelphia. We have found this opinion contested only in a letter addressed by Mr. Powers to Mr. Livingston , in 1829. See this letter p. 5 and following.
- 22.
*Note the interesting combination of causes: human effort and historical progress.
- 23.
In 1813, Auburn still had only three hundred eighty cells. On 12 April 1824, the legislature ordered the construction of an additional one hundred seventy cells. *Lieber corrects the authors here, noting that only an additional sixty-two cells were built, rather than one hundred seventy (7).
- 24.
The manner in which Mr. Elam Lynds has built Singsing would no doubt be found incredible, were it not a recent fact and well known in the United States; in order to understand it, it is necessary to know all the resources that an energetic man can find in the new rule of American prisons; if one desires to form an idea of the character of Mr. Elam Lynds , and of his opinions on the penitentiary system, they have only to read the Conversation that we had with him, and that we believe we have transcribed in its entirety. See [Appendix] no. 11.
- 25.
*At the time of the writing, France had one equivalent institution to American houses of refuge : the Abbe Ausoux in Paris, established in 1827.
- 26.
*Stephen Maddux pointed out that the combination of “opportunity” and “inevitable” suggests the meaning that once the occasion exists, even if occurring randomly or by chance, the corruption is inevitable.
- 27.
It was not only in the Auburn prison that solitary imprisonment without work exercised the most disastrous influence on the psychological and physical health of the prisoners. The experiments made in the prisons of Maryland , Maine , Virginia , and New Jersey were no more successful; one mentions, in this latter prison, the names of ten individuals killed by solitary imprisonment. See the Fifth Report of the Boston Society, p. 422. In Virginia , when the governor ceased to pardon the convicts, there was no example of any of them surviving the onset of a sickness. (See Report of the editors of the Penal Code of Pennsylvania, p. 30).
- 28.
This report is one of the most important legislative documents in existence on the American prisons. It has been, in Europe , the subject of a special study by certain publicists.
- 29.
*Lieber translates “l'opinion” as “public opinion ,” which seems implied. However, Tocqueville and Beaumont are careful to insert the modifier “public” elsewhere in the text.
- 30.
*The TLFi provides a better understanding of “doctrine” as “the ensemble of principles or statements, systematized or not, translating a certain conception of the universe, of human existence, of society…” in order to guide human conduct or formulate models of thought. It is interesting that Tocqueville and Beaumont choose to use the word “doctrine,” since up to this point they have characterized complete isolation as a theory or principle. “Doctrine” perhaps reflects how Vaux and Livingston view complete isolation: not as a theory that ought to be tested, but as a guiding rule that must be defended. The use of the word “doctrine” is also interesting considering the religious beginnings of penitentiary systems.
- 31.
*Lieber contests this assertion as “a great mistake” since Livingston received his education in New York and his writings “are of a decided Anglo-American character” (Beaumont and Tocqueville 1833, p. 10).
- 32.
*Here, Tocqueville and Beaumont seem to refer to the political importance of newspapers in the young American democracy, a theme Tocqueville later expands in Democracy in America I.2.3 and II.2.6 (Tocqueville 2000, pp. 172–180, 493–496). Another word for translating “advertising” would be “publicity.”
- 33.
*The departments in France were originally created to function administratively between the “regions” and the “commune” as political divisions of the country; they thus represent both an institutional and territorial organization within the nation
- 34.
Mr. Charles Lucas, who has published a very respected work on the penitentiary system, has fallen into error on this point. “Two systems,” he writes, “are presented, the one exclusive to the Old World, and the other to the New. The first is the system of deportation followed by Great Britain and Russia, the second is the penitentiary system established in all the States of the Union.” “…The penitentiary discipline,” he says a little further, “that Caleb Lownes gave in 1791 to Pennsylvania, where it has spread almost simultaneously in all the States of the Union…” See Du système pénal et du système répressif en général by Mr. Charles Lucas. Introduction, p. 58, 59 and 60.
- 35.
That of Congress .
- 36.
In Ohio , in New-Hampshire and some other States, a system of imprisonment has been established; but it is a bad prison discipline, and not a penitentiary system.
- 37.
See [Appendices] Notes on Imprisonment for Debts and On the Imprisonment of Witnesses , No. 7 and 8.
- 38.
*The French word is “les vices .”
- 39.
The place which locks up convicted criminals, in New Orleans , cannot be called a prison: it is an awful cesspool, in which they are crowded, and which is appropriate only for those filthy animals found here together with the prisoners: it must be observed all those who are prisoners here are not slaves: it is the prison for free men. It appears, however, that the necessity of a reform in the discipline of prisons is felt in Louisiana ; the governor of this State told us that he would incessantly ask the legislature for an allocation of funds for this object. It seems equally certain that the system of imprisonment in Ohio is about to be entirely changed.
- 40.
In general, for their prisons as for all the rest, the southern States are far behind those of the North . In some of them the reform of the prison discipline is not asked for by public opinion ; quite recently the penitentiary system was abolished in Georgia , having been established a year before.
- 41.
If the law of 30 March 1831 is executed in Pennsylvania , this State will soon have the most complete system of imprisonment which has existed in the United States. This law orders the erection of a prison on the plan of solitary imprisonment, intended to receive indicted persons, debtors, witnesses, and those sentenced to a short prison sentence: — See Acts of the General Assembly Relating to the Eastern Penitentiary and to the New Prisons of the City and County of Philadelphia, p. 21.
- 42.
The prison of Blackwell -Island at New York, all newly built, is the only one which has been made to receive prisoners convicted of small offences.
- 43.
*Note that “condamnes” is translated two ways in the text, depending on the context in which it is found: 1. Convicted or Sentenced, 2. Convict(s). There is a total of 8 words to designate the persons sentenced to imprisonment in the text: condamnes, malfaiteur/malfrat (both translated “malefactor”), criminal (translated “criminal”), détenu/forçat/prisonnier (all translated “prisoner”), délinquant (translated “delinquent”).
- 44.
In this prison, where there are only the indicted, no regard is paid to the different crimes with which they are charged, to the youth of the one, to the old corruption of others. All these individuals have not a bed, nor a chair, nor a board, nor a couch, on which to lay their head. They do not have a yard where they can breathe clean air. — A few steps away there is a perfectly ordered prison, which contains convicted criminals. The best and most vicious prisons are found in the United States.
- 45.
There are no prisons to shut up slaves: imprisonment is too expensive! Death, whipping, exile cost nothing! In order to exile them, they are sold, which yields profit. See Statistical Notes on the State of Maryland.
- 46.
We comprise in this number the crimes against the federal government, that of high treason against the United States, piracy, theft of the government’s mail.
- 47.
The laws of the latter State also pronounce in seven particular cases the punishment of life imprisonment.
- 48.
A law of Connecticut orders that the mother hiding the death of her natural child will be exposed to the galleries for one hour with a rope noosed around her neck.
— Another law of Massachusetts orders one fine against fornication; it adds that if the convict does not pay this fine within twenty-four hours he receives six lashes of the whip . The one guilty of blasphemy is, according to the laws of the same country, sentenced to the pillory and the whip. Those in Rhode-Island who commit the crime of forgery are sentenced to the pillory. During his exhibition a piece of each ear is cut off and he is branded with the letter C (counterfeiting). After all this, he submits to imprisonment not exceeding six years.
- 49.
For example, one law of the State of Delaware orders a fine of 10,000 dollars (54,000 fr.) for a single crime.
- 50.
*The choice of word describing the effect of law on the penal system mirrors the effect of punishment on the criminal’s body in the act of branding.
- 51.
The laws of the State of Delaware pronounce the death penalty against six different crimes (not including capital crimes provided by the federal law of the United States).
—Here is how they punish forgery: the guilty is sentenced to a fine, to the pillory, to three months of isolation in a cell; at the expiration of his punishment the convict must wear on his back, for at least two years and not more than five years, the letter F (forgery) imprinted on his cloak in scarlet color; this letter must be six inches long and two inches wide.
Poisoning is punished as follows:
The guilty can be sentenced to a fine of 10,000 dollars, to one hour of the pillory, and to be publicly whipped; he must receive sixty properly applied lashes, the law says (well laid on); then he submits to four years of imprisonment, after which he is sold as a slave for a time not exceeding fourteen years.
Here is one other serious punishment pronounced for a very slight offence: twenty-one lashes are the punishment for those who pretend to be a sorcerer or magician. In New Jersey , any individual convicted in recurrence for murder, rape, arson, theft, forgery, and sodomy, is punished by death…
- 52.
In the United States, the brand is placed ordinarily on the forehead… In the month of June, 1829 the recommitted convict was marked in Boston at the moment of exiting prison , by tattooing them on the arm; on them was written these words: Massachusetts State prison (Central prison of Massachusetts). This custom was repealed 12 June 1829.
- 53.
We do not contest against society the necessity of punishing by death those of its members who have violated its laws. We believe even that the conservation of this punishment is in certain cases still indispensable to maintain social order. But we believe equally that any time the death penalty is given in the law without an absolute necessity, it is only a useless cruelty and an obstacle to the penitentiary system, which has as its object to reform those whose life society saves.
- 54.
*Compare to above, where Tocqueville and Beaumont attribute progress to human effort and the progress of time.
- 55.
Among the philosophers in the United States who call for the abolition of the death penalty, Mr. Edward Livingston must be distinguished. He does not dispute with society its right to take away the life of those of its members that it is interested in subtracting from within; he maintains only that the terrible punishment , which can strike without remedy an accused innocent, does not produce in general the effects that are intended, and that it can be effectively replaced by less rigorous punishments that cause society less vivid impressions, but more durable. Placed on this terrain, the question is not resolved, but it is reduced to its true terms. See Remarks on the Expediency of Abolishing the Punishment of Death. By Edward Livingston . Philadelphia, 1831.
- 56.
*The first use of the word for “soul.”
References
1831. Acts of the General Assembly Relating to the Eastern Penitentiary and to the New Prisons of the City and County of Philadelphia. Philadelphia: J. W. Allen.
Beaumont, Gustave de and Alexis de Tocqueville. 1833. On the Penitentiary System in the United States and Its Application in France, with an Appendix on Penal Colonies and also Statistical Notes. Translated by Francis Lieber. Philadelphia: Carey, Lea & Blanchard.
Dictionnaire de l’Académie française, 6th Edition, Vol. 1 and 2 (1832–5). http://artfl-project.uchicago.edu/node/17. Accessed September 9, 2017.
1830. Fifth Annual Report of the Board of Managers of the Prison Discipline Society. Boston: Perkins and Marvin.
La Roçhefoucauld-Liancourt. 1819. Des Prisons de Philadelphie, par un Européen. Paris: Madame Huzard.
Livingston, Edward. 1831. Remarks on the Expediency of Abolishing the Punishment of Death. Philadelphia: Jesper Harding.
Lucas, Charles. 1827. Du système pénal et du système répressif en général, de la peine de mort en particulier. Paris: Charles-Béchet.
Powers, Gershom. 1828. Report of Gershom Powers, Agent and Keeper of the State Prison at Auburn, Made to the Legislature, January 7, 1828. Albany: Croswell and Van Benthuysen.
Tocqueville, Alexis de. 2000. Democracy in America. Translated and edited by Harvey Mansfield and Delba Winthrop. Chicago, IL: University of Chicago Press.
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de Beaumont, G., de Tocqueville, A. (2018). Chapter 1: History of the Penitentiary System. In: On the Penitentiary System in the United States and its Application to France. Recovering Political Philosophy. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-70799-0_1
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