It is also a work to which it is difficult to be fair. Its merits, though undeniable, seem in certain lights to be inconsequential. The prison mission, however demanding and valuable, was of its nature strictly limited. The commissioners’ job was to study the American penitentiaries and report on their possible applicability. The object of a penitentiary was to redeem the character of each prisoner so that he (or, in a few cases, she) would behave, after release, as a law-abiding citizen: ‘Go, and sin no more.’ The Tocqueville–Beaumont investigation was amazingly thorough, intelligent and conscientious, and their conclusions, modestly argued, were numerous and shrewd. But the investigators were haunted by the spectre of expense: could the money be found, in any minister’s budget, to build penitentiaries in any adequate number in France, and how were the running costs to be met? (They were impressed by the number of American prisons which actually made a profit out of their inmates’ labour, but had good reason to suspect that this reflected conditions – particularly the high cost of free labour – which did not exist in France.) Their central preoccupation was the rate of recidivism, and as good servants of the French state they were scandalized by the lack of official statistics in America: again and again they had had to compile their own tables out of the prison registers. In the end they were moderately optimistic about the possibility of reforming criminals, in spite of the rooted scepticism of Elam Lynds and others. But a reformed prisoner, in the very nature of the case, had previously been convicted of a crime. Penitentiaries, therefore, on the best possible reading, could only have a modest impact on the crime rate, and none at all on the conditions which led to crime, as a social phenomenon, in the first place.
Tocqueville and Beaumont were well aware of such limitations, and tried not to claim too much. But inevitably, in spite of all their precautions, their views on the larger questions became apparent in their discussion of penitentiaries, and influenced their conclusions. As we have seen, Tocqueville was startled to be told that as Connecticut grew more prosperous its crime rate rose.* He and Beaumont had not failed to follow up this observation; indeed, their pages on the causes of crime, in this context, are some of the best in the Système Pénitentiaire. 27 They concede that it is ‘institutions, manners, political circumstances which influence the morality of free men; prisons only operate on the morality of prisoners.’ But even in that formulation they betray their ineradicable confusion between the concepts of sin and crime. Over and over again they write as if the purpose of a penitentiary was and ought to be the reclamation of a soul, its restoration to its ‘primitive purity’, not the mere changing of behaviour. The idea does cross their minds that society’s only right and interest is to require not that a former prisoner shall have saved his soul, but that he obey the laws; but the implications of this observation are nowhere explored.28 Much more characteristically, the authors devote many pages to emphasizing that convicts, ‘gangrened’ members of society by definition, will corrupt each other unless strictly separated and kept under a rule of silence; the idea that they might comfort each other never appears. Kind treatment of any sort is regarded with the utmost suspicion: it is conceded that Mr Welles, of the house of refuge in Boston, does a wonderful job with his young delinquents, whom he governs with the lightest of touches, but his success is attributed to his own remarkable qualities, not to his system.29 In general, Tocqueville and Beaumont are hostile to what they think of as pampering prisoners. Tocqueville’s views on bathing have already been indicated,* and his attitude to food and clothing was equally robust. Both he and Beaumont deplored ‘the mania to erect architectural monuments’ instead of strictly utilitarian prisons, wherever they found it.30 They did not share the arch-utilitarian Bentham’s belief that a well-planned building could help in a prison’s work of redemption, for instance by looking suitably Gothic and terrifying. Tocqueville dismissed all music as unnecessary, while Bentham thought that good music would make prison chapel services more enjoyable, and therefore beneficial – but then, Bentham was a musician himself.31 (We wonder what Beaumont the flute-player thought.) Only very occasionally do Tocqueville and Beaumont show any sympathy for the prisoners’ plight, as when they discovered that at Philadelphia released prisoners were given nothing but a few coins to help them start again in life: ‘this system seems to us to be excessively severe.’ They pointed out that ‘the most dangerous moment for released convicts is that in which they leave prison ...’ 32 †
They thought themselves to be realistically humane and enlightened men, but the limitations of Tocqueville’s humanity, at least, are precisely displayed in a report which he sent to Paris from Philadelphia describing the condition of one of the prisoners in solitary confinement whom he interviewed. The man, he said, was healthy, well-clothed, well-fed, well-bedded; ‘however, he is deeply unhappy; the wholly mental punishment inflicted on him fills his soul with a fear far deeper than that of whips and chains. Is it not thus that an enlightened and humane society should wish to punish [my emphasis]?’33
The work of Michel Foucault suggests a terrible indictment of this sort of thing, and of more than Tocqueville’s penal philosophy. No reader of Discipline and Punish can fail to recognize that Foucault was right to place Tocqueville and Beaumont, as prison reformers, in the movement that he describes; a movement, he declares, to reshape the world so that ‘prisons resemble factories, schools, barracks, hospitals, which all resemble prisons.’ 34 He finds the origins of that movement in the rise, during the seventeenth and eighteenth centuries, of new ideas of property which consolidated noblesse, peasants, bourgeoisie (both grande and petite) into a new class, determined to defend its interests against those it saw only as vagabonds and criminals: ‘beggars, vagabonds, paupers, and all the freed prisoners,’ said Tocqueville and Beaumont, ‘whose ever-increasing numbers threaten the safety of private citizens and even the tranquillity of the State ...’ 35
According to Foucault, the required reforms were the particular concern of a continuous line of magistrates, from the parlementaires of the ancien régime, the legislators of the Constituent Assembly, the officials of the Napoleonic state, to the administrators of the Restoration and the July Monarchy. All were lawyers, members of a profession which, in France, never ceased to try to maintain or reconstitute itself as a privileged order, as it was under the ancien régime. They had no doubt whatever of their right, duty and ability to order and defend society through laws and law-courts. ‘We believe that society has the right to do all that is necessary for its preservation and for the good of the established order ...’ is how Tocqueville and Beaumont put it (so anything might be done with convicts, whose leanings were all corrupt and whose instincts were vicious). 36 Foucault quotes Rousseau:
Every malefactor, by attacking social rights, becomes, by his crimes, a rebel and traitor to his country; by violating its laws he ceases to be a member of it; he even makes war upon it. In such a case the preservation of the state is inconsistent with his own, and one or other must perish; in putting the guilty to death we slay not so much the citizen as the enemy.’ 37
This piece of eloquence comes from The Social Contract, but it might as well be Robespierre, or Bonaparte, or Tocqueville’s cousin, Le Peletier de Saint-Fargeau; and except that the reformers soon came to prefer imprisonment to execution as punishment for most crimes, it expresses the conviction which guided them from before the Revolution until the Second Empire – and beyond.
Saint-Fargeau is, for our purposes, the key figure, since it was he who laid before the Constituent Assembly the law which for the first time made the penal recommendations of the philosophes a matter of public policy. It was Saint-Fargeau who first suggested the cachot (‘manacles on hands and feet, darkness, solitude, bread and water’), the prison cell and the labour regime. 38 Subsequent deliberations, in the assemblies or out of them, merely discussed variations or elaborations on Saint-Fargeau’s themes, and the protests of the cahiers of 1789 against the very existence of state prisons were forgotten. 39 The
Napoleonic regime, in what may be regarded as an ironic comment on the system where the very notion of the cell originated, converted many of the confiscated monasteries of France into prisons,* and regarded the attempt to control crime as an internal war, the equivalent of the international war in which it so constantly engaged – a metaphor which had the advantage of dehumanizing the criminal, and which has had far too long an innings ever since, not just in France. ‘A great prison structure was planned, whose different levels would correspond exactly to the levels of the centralized administration.’ 40 The Restoration and the July Monarchy, although a high proportion of their ruling elite had, like Hervé de Tocqueville, discovered the realities of prison at first hand (probably a higher proportion than of any other regime in history until the Bolsheviks seized control in Russia), carried on the Napoleonic programme with its attendant problems – which is where Gustave de Beaumont and Alexis de Tocqueville came in.
They fitted exactly into the prevailing orthodoxy by background, upbringing and training, and it was natural that their American journey reinforced the notions which they carried with them (however formed), since the penitentiary doctrines of the United States, particularly those of the Quakers, had been formed in step with those of Europe as developed by (for instance) John Howard and Jeremy Bentham. 41 It was the application, not the penitentiary theory itself, which was new. Perhaps it was not quite inevitable that Tocqueville and Beaumont should adopt mainstream views, which were always controverted.42 Opposition to the new vogue for imprisonment was expressed in the Constituent Assembly by a deputy who objected that ‘every imaginable offence is punished in the same uniform way; one might as well see a physician who has the same remedy for all ills.’ The Italian idéologue Sismonde de Sismondi denounced Tocqueville’s cherished rule of silence to the Council of Geneva: ‘It is absurd to pretend to reform men by taking from them the prerogative which distinguishes them from animals, speech.’ As Tocqueville and Beaumont had to admit. La Fayette had declared himself a strong opponent of solitary confinement: ‘That punishment’, he said, ‘does nothing to reform the guilty. I was held in solitary confinement for several years at Olmutz, where I was sent to prison for having launched a revolution; in my prison I dreamed only of new ones.’ Charles Dickens, who visited Cherry Hill eleven years after Tocqueville did, and interviewed the prisoners to much greater effect, denounced solitary confinement as torture and agony, such as no man had a right to inflict on his fellow creatures, and declared that the benevolent Quakers did not know what they were doing.43 But Tocqueville and Beaumont, as we have seen, formed very different views.
They were anxious never to appear sentimental. ‘Philanthropist’, as by now should be clear, was for them a term of contempt: it denoted a meddler who was more concerned with the comfort and happiness of prisoners than with their redemption. Philanthropists who made a career out of being prison-reformers were the worst of all. In particular, Charles Lucas became their bête noire, since he did not admit that the chief purpose of punishment was to hold up a useful moral example to society, not to reform the convict. Considering how much stress Tocqueville himself laid on personal redemption this accusation seems disingenuous, but he could never be fair to Lucas. In private he made no attempt to conceal his disdain: writing to Chabrol from Philadelphia he gloated that the success of the Beaumont–Tocqueville mission would turn Lucas yellow with envy and anxiety: ‘For us, investigation of the Penitentiary System is like the hors d’oeuvres of our lives; for him, it’s a business; he lives off philanthropy as off a landed estate; he draws a large rent from it every year, and is terrified when he sees anyone else settling on the same ground.’44 It is difficult to acquit Tocqueville of odious snobbery in these remarks and others like them. But his attitude to the treatment of prisoners was closer to the outlook of his time, as it was developing, than was that of the philanthropists.
Indeed, it can be no wonder that the Système pénitentiaire was a success in its time, for the time had written it, faults and all. To judge from the reviews excerpted and included in the later editions of the book, readers were chiefly impressed by the authors’ rigorous empiricism, their dazzling display of facts and documents. This was, after all, the age of the parliamentary blue book: the Gazette de Normandie, which proudly pointed out that one of the authors was ‘a son of our province’, also asserted that the book eclipsed ‘those parliamentary enquiries of which they make so much fuss across the Channel’. Tocqueville’s statistics were particularly enthralling: as Louis Chevalier told us long ago, the early nineteenth century was fascinated by this new art, which, as if by magic, gave solidity to what previously had been mere guesswork about society. Reviewers also took pains to praise the authors’ style and presentation. ‘What one finds in these pages above all are facts observed with impartial and philosophical intelligence, and presented with candour, in a clear style, appropriate to the subject’ (Le National). And several of them endorsed the programmatic thrust of the book: MM. de Beaumont and Tocqueville, said the Courrier de France, were not to be counted among the ‘monomaniacs of the penitentiary system’ who thought it was a remedy for every evil; rather, they accurately stigmatized those unenlightened humanitarians who only concerned themselves with material conditions, and made loving mankind into a profession. La France nouvelle commended them for recollecting the duties which society owed to convicts while not belonging to that sect of ‘exaggerated philanthropists’ who blamed society for fostering crime and sided exclusively with the victims of punishment.45
For good and ill, the book was a success; yet one of Cicero’s epigrams comes to mind. The younger Cato, he said, spoke in the Senate ‘as if he were living in Plato’s Republic instead of the cesspit of Romulus’. Kergorlay made much the same point after reading the book: ‘It’s well done, very well, if all your readers are really worthy citizens, bringing to it the will to hard study and the public good ... but three-quarters of your readers will dislike the lack of charlatanism or brilliance or whatever you call it which might stimulate minds sated and jaded by the vulgarity of the daily press.’46 Beaumont and Tocqueville took the utmost pains to write a report which would be acceptable, by its scholarship and reasonableness, to any French party or government (though one or two references to ‘un pays libre’ show where their hearts lay).47 They tried for a tone of dispassionate social science, and largely achieved it. Given the state of French politics and society in their lifetime this did little for French prisons and prisoners, though it worked wonders for the reputation of the authors, who showed that they were not only scientific, but statesmanlike. Their anxiety to be practical informed all their comments on the present state of affairs:
We have never supposed that France could suddenly undertake a general revolution in its prison system, demolishing ancient establishments and suddenly building new ones, and devoting to this one object, in a single moment, enormous sums on which concerns of another kind make their claim. But one may reasonably ask for step-by-step reforms in our prison system ...48
They did not call for radical reform because they knew that it was unattainable and might even be thought undesirable: ‘An institution can only succeed politically if it is undertaken for the benefit of the many; it will fail if it only profits a small number’ – such as repentant convicts. They recognized that even the essential (in their eyes) element of reform, the installation of active and zealous chaplains in every prison, was probably not possible in France: even if French Catholic priests were enthusiastic about penal reform, which they were not, French anti-clericalism would be deeply suspicious of anything which looked like increasing their influence.49 Beaumont and Tocqueville’s pages on conditions in France were their most judicious and realistic, and were likely to increase their influence with all who read them – except the administrators of the prisons, who thought them deeply unfair. Laville de Miremont, inspector-general of maisons centrales, brought out a pamphlet defending every aspect of the French prison system which Beaumont and Toc
queville had attacked; he thereby heralded a controversy which was to involve the two friends for the whole duration of the July Monarchy, and make even their hopes for step-by-step reform seem Utopian.50
For this reason posterity may see fit to pass over the Système pénitentiaire as being no more than a dusty relic of a forgotten debate. This would not be fair: the issues that Beaumont and Tocqueville wrestled with are still very much alive. Anyone reading the book today is forced to reflect on current conditions in American and European prisons, with no very cheerful result. But what, in the end, must most impress such a reader is what may be called the subtext. For instance, Beaumont and Tocqueville took care to explain American federalism and how it shaped the prison system. This is a precise measure of how much they had learned in the United States, for when they first reached New York they apparently expected to find a centralized prison administration run à la française by a minister in Washington, and it took a letter from Baron Sérurier to set them right.51 In turn, Beaumont and Tocqueville not only enlightened their readers as to federalism, which they rightly discerned was the embodiment of decentralization, but discussed its advantages and disadvantages, pointing out, among other things, that there was a certain healthy rivalry between the states, so that they vied to have the best prisons.* They also emphasized the principle of free association in the United States (following the hint given them by the despised Charles Lucas):52 the excellent maison de refuge in New York had not been built by the state government, but by committees of private citizens formed for the purpose. They said further that associations, in the form of business corporations, were the engines of American economic growth; they were the means by which, in politics, ‘minorities succeed in resisting oppression by the majority’, and, in social life, the means to pleasure, education, science, religion and temperance.53 Beaumont and Tocqueville also found it necessary to discuss race, slavery and the slave states; the role of public opinion; the press; the separation of Church and state; the school system; and American religion. A careful reader of the Système pénitentiaire can still learn much about how American society and government were organized and how they operated in the 1830s; and will also be exposed to what may be called a trailer for the two works which were to follow – Beaumont’s Marie, ou l’esclavage aux États-Unis, and Tocqueville’s De la démocratie en Amérique. Indeed, the Système pénitentiaire may be classified as a case-study of Jacksonian democracy in action; it remained for Tocqueville to expound at full length the general system and its principles.
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