THE BRITISH SYSTEM OF PENAL SERVITUDE
A substitute for transportation--Task entrusted to Colonel
Jebb--Initiates Public Works' Prisons in England--Plans to assist
in the construction of great breakwater at Portland--Rapid
progress--Much useful work executed by the convicts--Old War Prison
of Dartmoor prepared for convicts employed in the reclamation of
savage moorland--New prison at Chatham for extension of the naval
dockyard--Similar undertaking at Portsmouth--New system carried out
conscientiously--First results satisfactory--The
garroter--Insecurity of London streets--Discipline of penal
servitude lax--Royal commission advocates new principles and
insists upon greater severity--Strenuous industry enforced under
the "mark" system--Favourable results.
Transportation beyond the seas ended when the British colonies
positively refused to receive the penal exiles. One of them, Queensland,
lately founded in Australia, which was supposed to be favourable,
repudiated the idea entirely, and its citizens asked impertinently
whether they might be permitted in return to transport their own
malefactors to the British Isles. Then the geographers began to search
for new lands suitable for penal settlements. One suggested the Falkland
Islands, and another New Guinea, while Labrador was felt by many to be
exactly the place for convict colonisation. Western Australia, as a
matter of fact, did not object; it was a crown colony and could not
protest, but it was never very largely utilised.
The excessive costliness of transportation was the principal demerit of
this practice. A few figures will show this. As late as 1851, the gross
cost for one year was £586,294 for passages out to the antipodes,
establishments and staff, including the home depots, Bermuda and
Gibraltar. There was a certain set-off in the value of the labour of the
convicts, and when this had been credited, the net cost remained at
£419,476. To arrive at any general estimate, this annual expenditure
must be multiplied by the seventy years the system lasted. It cannot, of
course, be denied that the product was Australia, a substantial section,
no doubt, for the cash expended, but the evils entailed by the system
must be taken into account, and modern feeling revolted from repeating
the process even to gain such a large and prosperous dependency,
provided additional territory was available. As we have seen, the
territory did not exist. Thus the only alternative was to retain the
convicts at home, to house and dispose of them as economically as
possible, and at the same time utilise them effectively in such works
and public undertakings as might reasonably be expected to bring in some
adequate return.
The solution of the pressing problem was entrusted to Colonel,
afterward Sir Joshua, Jebb, a distinguished officer of the Royal
Engineers, who was already well known in connection with prison building
and with penal legislation generally. He had for some years past been
associated with the two official inspectors of prisons; after that he
had assisted in the superintendence of Millbank, when constituting a
convict depot, and he had been in reality the moving spirit of the
commissioners who built the model prison at Pentonville. In those early
years he gave undoubted earnest of his energetic character and great
powers, a promise more than fulfilled. His proposal was to construct a
great breakwater at Portland, largely assisted by the labour of convicts
which was abundant and running to waste. He meant in the first instance
to provide accommodation of some sort on the island of Portland wherein
the convicts might be securely lodged immediately adjoining their works.
He described, in a memorandum dated 1847, the style of place he proposed
to build. Naturally, he said, when the works on which the prisoners were
to be employed were likely to be completed within a limited time,
something less costly than a substantial prison would suffice. Safe
custody and the due enforcement of discipline must of course be secured;
but these might be obtained without any very extravagant outlay. He
suggested, therefore, buildings on wooden frames, with corrugated iron
partitions; the whole so constructed as to be easily taken to pieces
and removed to another site if required. In these buildings the convicts
might be kept safe and separate, at the probable cost of little more
than £34 per cell. Similar prisons might be run up anywhere, so that the
entire number of convicts for whom accommodation was required might be
housed for about two hundred thousand pounds. Colonel Jebb accompanied
this proposal with certain figures as an off-set against this outlay. He
assumed that the maintenance, including every item, would amount to
£158,000, but their earnings would be £180,000. The balance was
therefore a gain of £22,000--a sufficient interest on the original cost
of the prison buildings. These figures were speculative, of course, nor
were they found exactly accurate in practice; the cost of maintenance
proved undoubtedly higher than thus estimated, but in return the
earnings were also considerably more.
Three years later, in March, 1850, Colonel Jebb reported to the
Secretary of State that he had provided room for eight hundred and forty
prisoners at Portland. The main buildings consisted of four large open
halls, eighty-eight feet long by twenty-one broad, having four tiers of
cells on each side. The interiors of the halls were well ventilated and
could be warmed; the cells were seven feet by four, and furnished with
hammocks, tables and shelves for books. The cells were divided by
partitions of corrugated iron, and were sufficient to secure the
effectual separation of the men at night, and to admit of their taking
their meals in them, and reading or otherwise occupying themselves after
working hours, until they went to bed. In addition to the cell
accommodation there was, of course, full provision for officers'
quarters, chapel, kitchen, laundries and stores. Moreover, ample space
was reserved "within the boundary wall for the erection of additional
buildings, so as to increase the number of convicts to twelve or fifteen
hundred, if it should be found necessary or desirable." Everything was
now in fair working order. The foundation stone of the breakwater had
been laid in July, 1849, by Prince Albert, who visited the prison and
presented a Bible and prayer-book for use in its chapel; but till then,
and during the first year of the occupation of a "bleak and barren rock"
the convicts were chiefly employed in setting things straight within the
prison walls. They had to level parade grounds, make roads and
reservoirs, fit gates and doors, paint and clean up the whole
establishment. As soon as practicable they were set to work on the
breakwater. "The stone," says Colonel Jebb, "is to be removed from the
quarries by means of several lines of railways, which are arranged in a
series of inclined planes from the summit to the point where the
breakwater joins the shore. The wagons will be raised and lowered by
wire ropes, working on 'drums,' placed at the head of each 'incline,'
the loaded train in its descent drawing up the empty one from the
breakwater."
In the general detail of work, the share that fell upon the convicts
was the plate-laying, levelling, forming embankments and excavations,
getting out and stacking the stone, filling the wagons, sending them
down and bringing them back from the incline. Some five hundred men were
so employed during the first year, 1849, and their earnings were
estimated at about fifteen thousand pounds.
Portland, when thus fairly launched, became the starting point for the
new arrangements. Other prisons were needed, and they must be built like
Portland. But time pressed, and anything actually available at the
moment was eagerly pressed into the service. Down at Dartmoor, on the
high lands above Tavistock, was a huge building which had been empty for
five-and-thirty years. Its last occupants had been the French and
American prisoners of war, who were confined there until the peace of
1814. Ten thousand, some said twelve thousand, had been accommodated
within the walls--surely there must be room there for several hundred
convicts? Colonel Jebb, hearing that Captain Groves, from Millbank, was
staying at Plymouth, begged him to run over to inspect Dartmoor. The
place was like a howling wilderness; the buildings in places were
without roofs; the walls were full of holes, if not in ruins. But a few
repairs would soon make the place habitable, said Captain Groves, and
accordingly a gang of convicts, under Mr. Morrish, was sent down to
begin operations. In a short time Dartmoor prison was opened. Then
other receptacles were prepared. The hulks had been pressed into the
service, and were employed at the various dockyards to house the
convicts, but only as a temporary measure, until proper buildings on the
new plan could be erected. There were ships at Woolwich, and others at
Portsmouth. At the first station the old _Warrior_, and the _Defence_,
took the able-bodied, while the _Unité_ served as a hospital; at
Portsmouth there were the _York_, _Briton_ and _Stirling Castle_, until
1852, when the new convict prison was occupied. Soon after this,
contracts were entered into for the erection of a large prison at
Chatham, which was completed in 1858, and to which all those at the
Woolwich hulks were in course of time transferred. The intention at both
these stations was to devote a goodly portion of the convict labour to
further the dockyard extensions. At Chatham the object in view was to
construct, high up the tortuous Medway, a chain of artificial basins
capable of containing a fleet. Hither beaten ships might retire to
refit; while new ironclads, built in the dock close by, might issue
thence to retrieve disaster. From the first the work was of an arduous
character. The battle was against the tide and the treacherous mud. But
all of St. Mary's Island has been reclaimed, and marsh has given place
to solid ground. At Portsmouth a feat has been accomplished, not exactly
similar, but wonderful also in its way.
So much for the framework--the bones, so to speak, of the new system;
let us see, next, something of the living tissues with which it was
filled up. Speaking broadly, it may be laid down that the plan of
treatment inaugurated by Colonel Jebb and his colleagues, was based on
persuasion rather than coercion. This, indeed, they openly admitted.
They were not advocates for a "purely coercive and penal discipline."
They conceived that there was sufficient punishment without that; the
convicts suffered enough in the "long periods during which they remained
under penal restraint," and there was further discomfort in "their
eventual deportation to a distant colony, and the somewhat severe
restrictions to which they are subjected when they gain the boon of a
ticket-of-leave," these regulations being drawn up at a time when
transportation was still practised, though only to a limited extent. The
directors of convict prisons hoped, therefore, to accomplish their
object by reward and encouragement rather than by strictness and terror.
They desired to put it plainly before every convict that if he would but
continue quiet and obedient, he would be sure to benefit in the long
run. It was really worth his while to be good, they said, and they
encouraged him by the statement: "It will convince us that you are on
the high road to reform, and the sooner we are convinced you are
reformed, the sooner you will be set at large." Everything was made to
depend on conduct--good conduct--in other words, the mere formal
observance of rules, a submissive demeanour, and a readiness to echo,
even with hypocritical hearts, the lessons the chaplains taught. The
word "industry" was tacked on to "conduct," but only in a subordinate
sense, and so long as the convict was civil he might be as lazy as he
liked.
Precise rules provided the machinery by which a due estimate of each
man's conduct was to be obtained. Every governor of a prison kept a
character-book, in which he was to enter concisely his observations upon
the character and conduct of every prisoner, so as thus to be enabled to
reward him by classification and good conduct badges, and more
especially "to report with confidence whenever he may be called upon in
conjunction with the chaplain to assist the authorities in determining
the period of detention of the different prisoners." The same rule went
on to say, "He (the governor) shall take every opportunity of impressing
on the prisoners that the particulars of their conduct are thus noticed
and recorded; and that while no effort at good conduct and industry on
the part of a prisoner will be disregarded by the authorities of the
prison, every act of wilful misconduct and punishment will be equally
noted, and will tend to prolong the period of his detention under penal
discipline." The governor's opinion was to be endorsed by that of the
chaplain, and even the subordinate officers were called upon to record
their views of the demeanour of the prisoners they especially
controlled. The whole object of this classification and this supervision
was to "produce on the minds of the prisoners a practical and habitual
conviction of the effect which their own good conduct and industry will
have on their welfare and future prospects."
These extracts from Colonel Jebb's earliest reports will be sufficient
to indicate the bias of his mind. He too, like others who had gone
before, was hopeful of reformation by purely moral means. As he has
himself declared in one of his reports, he thought he might more surely
gain the great end he had in view by leading than by driving. Upon this
principle the whole system of management was based. There can be no
question that those who were its authors took their stand upon the
highest ground. They were called upon to inaugurate a new order of
things, and they did so to the best of their ability, in the most
straightforward, conscientious fashion. The glaring evils of
transportation, as it had been administered, were then still staring
them in the face. "Speaking humanly," says Colonel Jebb, "the
demoralisation of every individual sentenced to transportation was
certain. No matter what might have been his previous character, what the
amount of his constitution, or what the sincerity of his efforts and
resolutions to retrace his steps, he was placed within the influence of
a moral pestilence, from which, like death itself, there was no escape."
The necessity for great and radical changes was imperative; and these
changes were carried out in the manner I have described. Great results
were expected to follow from them.
In the first few years everything appeared rosy. The reports continue:
"As a body, the men show a spirit of willing and cheerful obedience. The
strictest discipline is maintained with a very small proportion of
punishment. The industry of the working parties is remarkable." Again,
the same report asserts that "any candid and dispassionate inquiry into
the condition and prospects of the convicts who have passed through
periods of penal and reformatory discipline at Pentonville and Portland,
will prove beyond doubt that, to say the least of it, the majority of
those now serving are likely on their release to be respectable in their
station of life, and useful to those who engage their services; thus
realising the anticipations of the Pentonville commissioners, that a
large proportion of our convicts would be qualified on their discharge
to occupy an honest position in their own or any other country."
This was in 1852 and for the following ten years the new plans were
persevered in with very general satisfaction. The public heard with
pleasure of the notable results achieved. All indeed were a little weary
of the subject of secondary punishment, and were content to leave the
problem in the hands of officials whose duty it was to deal with it. How
long this indifference might have continued it is impossible to
conjecture, but all at once a panic fell upon people that was long
remembered. It is only when touched by the sharp sense of personal
insecurity that people are universally roused to take an interest in
such affairs. The moment came when--in presence of a real or imaginary
danger--England awoke to the fact that her penal system was all a
mistake.
It was in the winter of 1862 that robberies with violence--garrote
robberies, as they were called--suddenly increased to such an alarming
extent, and were accompanied with such hideous details of brutality,
that general consternation prevailed. The streets of London were less
safe, said the leading journal, than a capital in the throes of
revolution and under no government at all. No man could walk abroad,
even in crowded thoroughfares, without feeling that he carried both his
life and his money in his hand. Both might be wrested from him by an
insidious malefactor before the victim was even conscious of his danger.
On all sides instances of these treacherous assaults multiplied; and
though varying somewhat in their method of execution, each and every one
of them belonged unmistakably to the same class of crime. One day it was
reported that a young lady of fifteen had been attacked in Westbourne
Crescent in the afternoon. She was half throttled, and a pistol held to
her head, while they rifled her pockets, and tried to tear off her
necklace, and the pendants from her ears. Her head was to have been
shorn, too, of its magnificent hair, which, as one of the ruffians
cried, would certainly fetch a goodish sum; but just then the sound of
approaching wheels frightened these human vultures from their helpless
quarry. Next, a poor old woman, a feeble tottering creature advanced in
years, was knocked down and wantonly maltreated for the half-dozen
coppers she carried in her pocket.
These attacks were made at all hours and in all neighbourhoods. Daylight
was no protection, nor were the crowds in a thoroughfare. One gentleman
was felled to the ground in the afternoon near Paternoster Row, another
in Holborn, a third in Cockspur Street. Later on, at night, the dangers,
of course, multiplied a hundredfold. Poor musicians, tramping home after
performing in some theatrical orchestra, were knocked down and robbed of
their instruments as well as their cash. It was a service of danger to
take the money at the door of any entertainment. A gang of garroters,
for instance, had their eye on Michael Murray in the early part of the
night as he stood at the door of the Teetotal Hall in Chelsea, and as
soon as he left for home, they followed with stealthy step till they
overtook him in Sloane Square, and knocked him down, having first
throttled and rifled him. If you stood still in the street, and refused
to give a drink to any man who accosted you, he would probably then and
there give you a hug. Those who took a delight in attending public
executions did so at their own peril. A Mr. Bush, who was standing in
front of the Old Bailey when Cooper was hanged, was hustled by several
men, who first forced his hands up over his head, then unbuttoned his
coat and stole his watch.
In every case, whether the victim resisted or surrendered, he was nearly
certain to be shamefully ill-used. Now and then the biter was bitten, as
when three men fell upon a certain foreign gentleman who carried a
sword, and was a master of the art of self-defence; or when another, who
knew how to hit out, was attacked by two ruffians, both of whom he
knocked down. But as a general rule the victim suffered tortures. When
down on the ground, as often as not he was kicked about the face and
head, usually with savage violence; his teeth were knocked down his
throat, his eyes closed, and he was left insensible, streaming with
blood.
In most cases, there was every appearance that the outrage was
deliberately planned beforehand. There were accomplices--women
sometimes; and all were banded together like Hindoos sworn to the
practice of "Thuggee." For months these crimes continued to be
prevalent. Every morning's news chronicled "more outrages in the
streets;" until, as the fogs of November settled down on the devoted
heads of the honest inhabitants of London, men's hearts failed them for
fear, and life in sequestered streets or retired suburban villas seemed
hardly worth an hour's purchase. Every journal teemed with complaints;
_Punch_ took up the question with grim humour; at the theatres
audiences roared at some amusing actor, then shuddered to think they had
still to get home after the play was over.
At length the horrors of garroting culminated in the arraignment of a
crowd of such offenders in one batch at the central criminal court.
There were twenty-seven of them. The cases of all bore a certain family
likeness: though differing somewhat in detail, there was in each the
same insidious method of attack, followed by the same brutality and
wanton violence. Speaking to the most hardened, the judge, Baron
Bramwell, said, as he passed sentence, that it was his belief that they
were "utterly destitute of morality, shame, religion, or pity, and that
if they were let loose they would do what any savage animal would do,
namely, prey upon their fellows." Therefore he was resolved to keep them
out of mischief as long as he possibly could. All got heavy sentences,
ranging from "life" downward, and all were consigned to prison, where
they are still well remembered--strong, able-bodied, determined looking
scoundrels; top-sawyers in the trade of thieving, ready for any kind of
daring work, treating their incarceration with the utmost contempt, as
indeed they might, for it was nothing new to them. One or two had
graduated in crime during the days of the Penitentiary; but neither Mr.
Nihil, then the chaplain-governor, nor any one else had succeeded in
reforming them. One of them, Leats, had actually at one time been a
prison officer, a warder. Formerly a soldier in the marines, his career
had been checkered. He had been present at the siege of St. Jean d'Acre,
and was at that time servant to the admiral, through whom he obtained a
situation at Millbank, from which he was soon dismissed for drunkenness.
After this he went rapidly to the bad; was caught, and sentenced for
obtaining goods under false pretences, next for robbing a lady at
Richmond Park, and now for the third time he entered prison as a
garroter. Although they maintained throughout, from the moment of their
capture, in the dock and after sentence, an insolent and defiant
demeanour, yet in the prison these murderous rogues conducted themselves
fairly well; only two of them got into serious trouble. These were Dixon
and another, Needham, who together made a vigorous attempt to escape.
Dixon cut out, by means of a sharpened nail, the panel in his cell door,
unbolted it, got out, and then set Needham also free. Their idea was to
surprise the night patrol, and seize his keys. With this object they
concealed themselves behind a passage door, and as he appeared struck
him behind the ear. Fortunately the blow fell light, and the officer
turned to grapple with the prisoners.
Such were the men, and such the work they did. Was it strange that the
public should complain of a system of penal repression which left them
to the tender mercies of ruffians like these? Transportation had been
abandoned and what had been given them in exchange? A system which, as
administered, had completely failed. It may have been a necessity, but
it clearly had not been a success. They might perhaps be compelled to
retain, or even to extend it; but its administration must be altered. As
it was it had no terrors whatever for the evil-doer, while it gave but
little protection to society. So said the _Times_; and it spared no
pains to support its views with tangible evidence. Its columns teemed
with letters on the subject, and special correspondents visited the
chief convict establishments to spy out their nakedness and report their
inefficacy as places for the punishment of criminals. Convicts, it was
agreed on all sides, quite scoffed at the terrors of penal servitude.
Barring the loss of actual liberty, which is doubtless the dearer to a
man the closer he approaches to a lower species of animal, the convict
prison was made so comfortable to the convict that he was loth to leave
it, and hardly dreaded to return. Well-housed, well-fed, with labour
just sufficient to insure good digestion and a healthy circulation;
debarred only by a fiction of the luxuries he chiefly loved; let free
from prison as soon as he chose to evince signs of amendment, a convict
was altogether master of the situation. So said the critics. Penal
servitude was like going down into the country after "the season." A
little slow, perhaps; but very healthy and re-invigorating after a
racket in town--just the discipline, in fact, to which men careful of
themselves are ready to submit for a time, so as to issue forth
afterwards braced and strengthened for a fresh campaign of pleasure. In
these retired residences there was rest for the tired thief, for the
burglar whose nerves had suffered, and for the playful miscreant who had
been able only to half kill his victim, and who wished to recruit his
strength. Here they found congenial society, such as a man meets at his
club: others of his own set, with whom he could chat about the past, or
concoct new plans for the future. His creature comforts were well looked
after; he never worked as free labourers did, in the rain; and if, by
mischance, he wet his feet, there were dry stockings for him on his
return to his cosy well-warmed cell. If he had any special "whims" which
called for gratification, an attentive official almost forestalled his
wish. The leading feature of the whole system was to keep the convict
comfortable and contented.
All this, and more, the panic-stricken public, speaking through the
press, found fault with. Reform was called for, and immediate reform.
The usual panacea was prescribed, a royal commission, which was that of
1863, long famous in British records as paving the way for the system of
secondary punishment which, with various modifications, has existed to
the present day. It was admitted on undoubted evidence that the régime
established by Sir Joshua Jebb erred on the side of overmuch tenderness
to the criminal. Far-seeing and able as was Sir Joshua Jebb, however
skilful and capable as an administrator, on one point he was weak. It
was an amiable weakness, but it did both himself and his system
incalculable harm. He had formed too high an opinion of the criminal
class; he was too hopeful, too ready to accept the shadow for the
substance, to be satisfied with promise rather than performance, and to
view the outward whitewashed semblance of purity for the radical
transformation of the inner man. This was the key-note of his system,
and this, as time passed, grew and gained strength, till at least there
was some semblance of truth in the allegations so freely made by his
opponents. It became known, beyond contradiction, that the diet in those
days was far too generous; that the care taken of the convicts was
tender to the extent of ridiculous coddling; that the labour exacted was
far below the amount that each might be expected reasonably to perform.
These facts are fully borne out by the traditions of the department
itself. Old officers have told me that in all the prisons discipline was
almost a dead letter. The convicts themselves ruled the roost. They did
not break away, because there were troops at hand who would shoot them
down; but otherwise they did just what they pleased. Their warders,
taking their cue from the supreme power, sought to humour them into
obedience by civil speeches rather than by firmness and resolution. The
officers were afraid to enforce their orders, and the convicts saw that
they were afraid. Men who are over-fed, if they are also idle, are sure
to prove untamable and run riot. Some of the scenes at the convict
prisons were disgraceful, almost rivalling, at times, the anarchy and
disorder of Norfolk Island. That the convicts were thus insolent and
insubordinate was undoubtedly due to the petting and pampering they
received. But another cause was the unsettled, dissatisfied spirit
evoked by several successive alterations in the law--alterations which
it was absolutely necessary to make, but which none the less produced
unevenness of treatment between various classes of prisoners.
The net result was stated in the report, to the effect that the system
was clearly not sufficiently dreaded by those who had undergone it, or
by the criminal classes in general. The number of re-convictions, they
thought, proved this; moreover, the report continues, "the accounts
given of penal servitude by discharged convicts, and the fact that they
generally come back so soon to their original haunts, tends to prevent
its being regarded with fear by their associates. Indeed, in some
(though doubtless exceptional) cases, crimes have been committed for the
sole purpose of obtaining the advantages which the offenders have
supposed a sentence of penal servitude to confer." The system therefore
stood condemned, and the commissioners attributed its shortcomings in a
minor degree to defects in the discipline maintained, but thought the
blame lay really in the shortness of the terms of imprisonment awarded
in the courts of law.
To speak first of the latter point: the commissioners reported that
there had been a notable reduction for some years previous in the length
of sentences, and to make them still lighter a remission of time was
granted under the new rules. It was a curious fact that the recent
increase of crime had corresponded in point of date with the discharge
of prisoners who were first sentenced for short terms under the Act of
1857, and was probably mainly attributable to their release from
custody. They had come out unchastened. "The discipline to which
convicts are subjected," declared the commission, "does not produce its
proper effect in short periods of punishment."
Next as to the discipline. It was clearly a mistake to lay so much
stress on conduct only. It was wrong, too, that the convicts should be
allowed to earn enormous "gratuities," the cash presents handed over to
them upon discharge. Many left prison with £30, £40, sometimes £80, in
their pockets. The effect of this was to make a sentence of penal
servitude an object of desire, rather than of apprehension. Besides, the
longer a man's sentence--presumably, therefore, the greater his
crime--the larger the sum he was entitled to take away with him. Again,
the measures to keep the prisoners in submission were far too mild.
Punishment did not follow fast enough on acts of violence and
aggravated misconduct. The infliction of corporal punishment was too
restricted, and the "cat" used was too light. There should be more power
to use it and greater promptitude in its infliction. Then came the
question of work and diet; but on these points the committee spoke with
less confidence. Last of all, there was an entire absence of supervision
of those who were at large on ticket-of-leave.
Having enunciated these propositions, the commissioners recommended
certain important changes in the manner of carrying out penal servitude,
chief among which were:
That in future no sentence should be passed of less than seven years.
That re-convicted criminals should be treated more severely than others.
That convicts, after enduring separate imprisonment for nine months,
should pass on to public works, where they might be permitted to earn by
industry and good conduct an abridgment of a part of their imprisonment.
That all males, if possible, should be sent to Western Australia during
the latter part of their sentences, "it being highly desirable to send
convicts, under proper regulations and without disguise, to a thinly
peopled colony, where they may be removed from their former temptations,
where they will be sure of having the means of maintaining themselves by
their industry if inclined to do so, and where facilities exist for
keeping them under more effective control than is practicable in this
country with its great cities and large population."
That all who were unfit to go, and, gaining a remission of sentence,
were discharged at home, should while on license be subjected to close
supervision by the police.
Such was the substance of the report. But it is right to mention here
that the commissioners were not quite unanimous in the conclusions
arrived at. Two of them, Mr. Henley and the Lord Chief Justice, would
not sign the report. Mr. Childers put his name to it, but under protest.
He could not agree to the proposals as to transportation. His view was
that of Australia, and he was of opinion that "the measures
recommended--while costly to the country and odious to her
colonies--would at best afford only a brief delay in the solution of a
question daily becoming more difficult."
By far the most important of the dissentient voices was that of Sir
Alexander Cockburn, the Lord Chief Justice, who appended to the report a
long memorandum giving his reasons for not concurring in it. After a
careful perusal of this memorandum any one would, I think, be ready to
concede that the Lord Chief Justice was nearer the mark than his
colleagues. They hesitated to admit that the penal system was entirely
defective. Sir Alexander Cockburn had no doubt of it, and maintained
that the same impression was pretty generally abroad. But if there were
faults in it, said the commissioners, then the administration of the law
was to blame; it was too lenient. To this the Lord Chief Justice would
by no means agree. The leniency of the judges, as it had shown itself of
late, was nothing. "The spirit in which the law is administered," he
observed, "is not the growth of yesterday. It has arisen gradually out
of the more humane and merciful disposition of men's minds in modern
times, whereby punishments inflicted without scruple in former days
would now be regarded as cruel and inhuman." No; the inefficacy of penal
servitude did not lie in the shortness or inequality of sentences, but
in the manner in which the punishment was inflicted. "Moderate labour,
ample diet, substantial gratuities," he maintained, "are hardly
calculated to produce on the mind of the criminal that salutary dread of
the recurrence of the punishment which may be the means of deterring
him, and, through his example, others from the commission of crime."
And then the Lord Chief Justice proceeded to put forth the following
pregnant sentences, which I quote in full. In taking up the question of
punishment, he says, "It is necessary to bear in mind what are the
purposes for which the punishment of offenders takes place. These
purposes are twofold: the first, that of deterring others exposed to
similar temptations from the commission of crime; the second, the
reformation of the criminal himself. The first is the primary and more
important object: for though society has, doubtless, a strong interest
in the reformation of the criminal, and his consequent indisposition to
crime, yet the result is here confined to the individual offender; while
the effect of punishment as deterring from crime, extends, not only to
the party suffering the punishment, but to all who may be in the habit
of committing crime, or who may be tempted to fall into it. Moreover,
the reformation of the offender is in the highest degree speculative and
uncertain, and its permanency in the face of renewed temptation
exceedingly precarious. On the other hand, the impression produced by
suffering inflicted as the punishment of crime, and the fear of its
repetition, are far more likely to be lasting, and much more likely to
counteract the tendency to the renewal of criminal habits. It is on the
assumption that punishment will have the effect of deterring from crime,
that its infliction can alone be justified; its proper and legitimate
purpose being not to avenge crime but to prevent it.
"The experience of mankind has shown that though crime will always exist
to a certain extent, it may be kept within given bounds by the example
of punishment. This result it is the business of the lawgiver to
accomplish by annexing to each offence the degree of punishment
calculated to repress it. More than this would be a waste of so much
human suffering; but to apply less, out of consideration for the
criminal, is to sacrifice the interests of society to a misplaced
tenderness towards those who offend against its laws. Wisdom and
humanity no doubt alike suggest that, if, consistently with this primary
purpose, the reformation of the criminal can be brought about, no means
should be omitted by which so desirable an end can be achieved. But
this, the subsidiary purpose of penal discipline, should be kept in due
subordination to its primary and principal one. And it may well be
doubted whether, in recent times, the humane and praiseworthy desire to
reform and restore the fallen criminal may not have produced too great a
tendency to forget that the protection of society should be the first
consideration of the lawgiver."
By far the most important improvement that followed this report was the
adoption of the "mark system;" in other words, of a method by which
remission was to be regulated, not by conduct as heretofore, but solely
by labour actually performed. For it must be understood that the
commissioners unhesitatingly accepted the principle of remissions. In
this they were at issue with the Lord Chief Justice, who thought that no
prisoner should escape one particle of the whole sentence laid upon him
by the judge. "It was most material," he said, "to the full efficiency
of punishment that its infliction should be certain." The door was
opened to doubt and uncertainty the moment the precise term of the
sentence was interfered with.
The objection was cogent if the remissions were to be granted in a
haphazard, capricious fashion and not by regular rule. But surely, if
the scale were drawn up on a regular plan and worked without deviation,
a sentence with remission might be just as certain as one without. The
former might, perhaps, be shorter than the latter--the judges, being
perfectly aware of the possible remission, would regulate their
sentences in proportion to this abridgment. And, on the other hand,
there was a clear and distinct gain to be expected from the practice of
remitting sentences. This was fully recognised by the commissioners, who
considered the hope of earning some remission the most powerful
incentive to industry and good conduct which could be brought to act
upon the minds of prisoners.
The commissioners perhaps laid more stress on good conduct than was
absolutely imperative, although they pointed out, very pertinently, that
"good conduct in a prison (apart from industry) can consist only in
abstaining from misconduct, which gives no just claim for reward." But
this harping upon good conduct was a weak point in their armour which
the Lord Chief Justice quickly discovered. He would not admit the
necessity for thus coaxing convicts into obedience by promising them an
earlier release if they behaved well. That was no argument, he said, for
remissions. Discipline ought to be strong enough to be independent of
such questionable support. "I can see no reason to think," he
continues,--"considering the powers of coercion, discipline, and
reduction of diet, possessed by the prison authorities--that, by the
application of firmness and determination with a sufficient force of
officers, convicts, especially if not massed in too great numbers, but
judiciously distributed, may not be kept under perfect control and
discipline."
No doubt the commissioners over-estimated the necessity of remission as
a means of insuring good conduct; but they were clearly in the right in
recommending the principle as a certain incentive to industry. The
experience, both of this and of other countries, has demonstrated that
it is impossible to compel convicts to work hard by mere coercion, the
attempt to do so having invariably failed, while it has produced a
brutalising effect on their minds and increased their previous aversion
to labour. On this ground the late Captain Maconochie many years ago
recommended that the punishment to be inflicted on criminals should be
measured, not by time, but by the amount of labour they should be
compelled to perform before regaining their freedom; and he devised an
ingenious mode of recording their daily industry by marks, for the
purpose of determining when they should have a right to their discharge.
Captain Maconochie himself experimented on his own suggestions in
Norfolk Island, but not with any great success. The state of Norfolk
Island, indeed, was never such as to encourage experiments of any kind.
It was really reserved for the officials who superintended the working
of transportation in Western Australia to give the system its first
practically successful trial. There a convict was allowed to earn by
each day's labour a number of marks, and as soon as they amounted to a
total previously calculated according to his sentence, he was granted a
ticket-of-leave. Industry became the test, and not good conduct; the
latter was only recognised by making misconduct carry with it a
forfeiture of some of the marks already earned by industry.
The convict's early release was no longer a matter of certainty provided
only that he avoided certain acts of rebellion, but it was made
contingent on something he had to earn. His fate rested in his own
hands; it was not to depend upon an opinion of his character formed by
others. The success which was shown to have attended the adoption of
this principle in Western Australia has been equally apparent in Great
Britain. The mark system is the keystone, the mainspring of the latest
British method of dealing with convicts, and the valuable results which
have grown out of it, as now clearly apparent, will be set forth
presently in the final chapter of this volume.