CHAPTER X

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.

Prisons Over Seas Deportation and Colonization; British and American Prisons of To-day · 第 10 / 13 章