SINCE 1872: (B) THE WAR 1914-18. 216
(A) Classification of offences proceeded against in Criminal Courts.
Fall in serious crime since 1871. Decrease of non-indictable offences
of a criminal nature. Statistics of non-criminal offences. Prison
Population, statistics since 1881. Decrease in total number of sentences
to Penal Servitude. Great decrease in prisoners under 21 years
of age. Statistics of recidivism. Petty Recidivism and vagrants
and mentally defective persons in prisons.
(B) Prison statistics during the War: the effect of the Criminal Justice
Administration Act, 1914, and payment of fines. Statistics of the
decrease in various offences. The effect of the Central Control Board
(Liquor Traffic) and committals for Drunkenness. The great fall in
Vagrancy. Criminal statistics in times of industrial prosperity and
distress. Closing of penal institutions during the War. Statistics of
charges tried and proceeded against. The maintenance in the future
of the present low criminal population.
Appendix:--
(a) Regulations &c., for Borstal Institutions. 231
(b) " " Preventive Detention Prisons. 265
Index 268
PREFACE.
In October, 1910, I conveyed to the International Prison Congress at
Washington the invitation of the British Government to hold the next
Quinquennial Congress of 1915 in London. The invitation was accepted
with enthusiasm. The London Congress of 1872 had prepared the way for
the creation of the International Commission, which was founded a few
years later; but, though supported and encouraged by the Government
of the day, it owed its origin to American influence, notably that of
the celebrated Dr. Wines. Great Britain did not formally adhere to
the International Commission till 1895, when Mr. Asquith, then Home
Secretary, nominated the present writer as British Representative to
the Paris Congress of that year. Since that date, the Quinquennial
Congresses had been held at Brussels, Buda-Pesth, and Washington in
1900, 1905, and 1910, at all of which the British Government was
represented, the reports of the proceedings being duly submitted to
Parliament.
The preliminary arrangements for the Congress in London in 1915 had
been carefully prepared by meetings of the Commission representing
the United Kingdom, the United States of America, Baden, Bavaria,
Belgium, Bulgaria, Canada, Denmark, France, Greece, Holland, Hungary,
Italy, Japan, Luxemburg, Norway, Russia, Servia, South Africa,
Spain, Sweden, and Switzerland. It was intended also to invite our
Dominions-over-Sea--India, and Egypt, to send special representatives.
These meetings were held in Paris in 1912, and in London in 1914, the
British Committee consisting of the Chairmen of the Prison Boards for
Scotland and Ireland (Lord Polwarth, and Mr. Max Green), Sir Basil
Thomson, K.C.B., and Mr. A.J. Wall, O.B.E., the late and present
Secretaries of the English Board, and myself, as President of the
International Commission.
But man only proposes, and the Great War intervened to prevent the
realization of those plans. It has, also, of course, for the time
being, arrested the development, and thwarted the purpose, of what
promised to be a great international movement for the discussion and
improvement of all methods affecting the punishment and treatment of
crime.
It was for the purpose of the Congress of 1915 that I prepared this
short manual, in order that the history and leading features of the
English Prison System might be understood by our foreign visitors, and
especially its more notable developments of recent years, since England
joined the Congress in 1895.[1]
I had been greatly impressed with the singular ignorance that existed,
both on the Continent and in the United States, of the character of
British penal methods.
In my Report on the Brussels Congress, 1900, I wrote as follows:--
"It is often asked, "What is the value of these Congresses?" It must
not be supposed that an Englishman, going to hear discussions on penal
subjects in a foreign country, where the laws, habits, and character
of the people are entirely different, is going to bring back new ideas
of Prison administration, which he will be able at once to apply,
with advantage, in his own country; nor must it be supposed that he
is going to carry with him instructions and opinions on these matters
which other nations will readily adopt. With a pardonable pride in
his national institutions, he is disposed to think that his Prison
system is the best in the world; but when he goes abroad he must not
be surprised to hear the same claim raised by other countries. He will
find that where the English system is not known or is misunderstood,
it is but little appreciated. There is a general idea that our
punitive methods are harsh, if not barbarous. Legends circulate as to
the terrors of the "_fouet_," the ingenious torture of "_la roue_,"
and the grinding tyranny of "_travaux forcés_." It is not surprising
that even an intelligent foreigner fails to grasp the distinction
between a sentence of "hard labour" and one of "penal servitude:" so
misleading are our terms. At the recent Congress, the Head of the
Russian Prisons asked me what is the minimum time for which a sentence
of "hard labour" could be imposed, thinking that it was something in
its duration and severity comparable to the "_katorga_" of his own
country. When I explained that it might be inflicted for one day only,
he turned to his Secretary with a smile, saying, "How little do we
understand the English system!" There is a minority, and I hope an
increasing one, who understand and appreciate the efforts that have
been made of late years to improve the conditions of the treatment of
crime in this country."
The comparatively few foreigners who had a personal acquaintance with
our Institutions did not conceal their admiration for the order,
method, discipline, and exactness which characterize our methods of
dealing with crime; but, generally speaking, these legendary ideas
prevailed.
The shadow of transportation, of the dark days of penal servitude, and
of grievous floggings, hindered a true conception of English methods.
I looked forward to the London Congress as the occasion to dispel these
illusions.
A short historical retrospect will show that it is only in
comparatively modern times that '_Imprisonment_' became the recognized
method for the punishment of crime, and that prison reform, in the
sense of _moral_ improvement by imprisonment was formulated as a
political duty, and became an earnest pre-occupation of statesmen and
philosophers. Prisons, as places of punishment, were unknown to ancient
Roman law. The '_carcer_' was known only as a place for 'holding'
prisoners, not for 'punishing' (_ad continendos, non ad puniendos
homines_), and the object of punishment was frankly held by Roman
legists to be only that of deterrence by fear. The '_carcer_' is not
mentioned in the list of Roman penalties: death by hanging, by being
hurled from the Tarpeian rock, drowning in a sack; with exile, beating
with rods, &c., were the methods with which as schoolboys we were
familiar.
In that dark period of penal law, based, as it was, on the ideas of
vengeance and intimidation alone, which lasted down to the French
Revolution, we find little, or no, reference to Imprisonment as the
punishment for crime. In the long list of punishments under the old
French Code we find '_réclusion perpetuelle_' as a punishment for women
and a substitute for the galleys and banishment. There is too '_la
prison perpetuelle_,' but this was not an organized system, but really
a euphemism for that mysterious disappearance of persons obnoxious to
the Crown or the State by '_lettres de cachet_,' or otherwise.
The Declaration of the Rights of Man in 1789 marks the beginning of
the reaction against these ideas, and the substitution of an orderly
and methodical system of punishment. We find 'Imprisonment' formally
installed for the execution of offences against the law in the French
Code of 1791. At this time Mirabeau is said to have anticipated modern
penitentiary science by publishing a remarkable report, declaring
Prisons to be '_maisons d'amélioration_,' founded on the principle of
labour, separation, rewards under a 'mark' system, conditional licence,
and aid-on-discharge. We seem to be reading a modern treatise on
Prisons--a sudden gleam of light, bursting on an age darkened by the
shadow of much unutterable cruelty in the punishment of crime.
But there were certain influences that had been silently operating
for some time before this, and leading men's minds to a juster and
truer conception of the purpose of punishment. Those influences were
both ecclesiastical and secular. The influence of the Church in the
middle ages has profoundly affected the modern idea of punishment. '_Le
système pénitentiaire_' is the direct heir of the '_pénitences_' of the
Church. In days when no distinction had yet been created between crime
and sin, these were the expiation of both. The public '_pénitence_'
effected both repentance and example, as a warning to others. The
private '_pénitence_' worked by 'solitude,' to the moral value of which
the early Church attached very great value--"_Quoties inter homines
fui, minus homo redii_" was the guiding maxim which separated the monk
from his fellow-man. 'Solitary confinement,' as we understand the
phrase, dates from the old '_Detrusio in Monasterium_' of Canonical law.
But while religious custom had rendered familiar the idea of
deprivation of liberty as a means of effecting both repentance and
expiation, the influence of the French philosophers and encyclopædists
of the eighteenth century had destroyed the claims of the State to
deprive a person of liberty by arbitrary process for indefinite
periods, or for any period beyond that warranted by the strict
necessity of the case. The famous treatise of Beccaria in the middle of
the same century further determined the reaction against all arbitrary,
unjust, and cruel penalties. He was the first of the utilitarians;
every punishment which did not arise from actual necessity of social
defence, was, to him and his school, tyrannical and superfluous. Its
object was not to torment or afflict a sensitive human being beyond
the strict limit of social utility. His propositions have become
commonplaces now; but they were new in the age when they were written,
and probably no work has exercised a greater influence in the domain of
penal law.
It is true that, irrespective of the influence of the Church, and
of the writings of philosophers, isolated experiments in the way of
prison reform had been made in different parts of Europe during the
seventeenth and eighteenth centuries. Some of these anticipated in a
remarkable way the principles in vogue to-day.
The Protestants of Amsterdam in 1593 built a prison for women, which
had for its object their moral reform by work and religious influences.
There are records of similar establishments in Germany and Hanseatic
towns. In 1703, Clement XI. built the famous Prison, St. Michel, for
young prisoners, and, later in the century, Villain XIV. built the
celebrated cellular prison at Gand, which excited the admiration of our
own Howard.
It was the immortal Howard who first stirred public opinion in England
to consider the question of prison reform. As Burke finely said of him
"He surveyed all Europe, not to view the sumptuousness of palaces, but
to survey the mansions of sorrow and of pain: to collect the distresses
of men in all countries. The plan was original, and full of genius as
of humanity. It was a voyage of discovery."
The names of Howard and Bentham will always stand in the forefront of
those who in those dark days tried to enlist public sympathy for the
prisoner and captive,--the former by his keen humanity, protesting
against the abuses and barbarisms which he found to exist at home and
abroad: the latter, as utilitarian and economist, devising a new system
to secure, firstly, a rational system of legal punishment for the
offence committed, and, secondly, a rational system of treatment while
in prison after commitment.
To the casual student of English Prison history, Bentham is known
chiefly as the author of the somewhat whimsical scheme known as the
'Panopticon'--a structural device for securing, in the first place, the
safe custody of prisoners and economy of administration. Because he
said boldly that he rejected sentiment in his construction of a Prison
System, his influence has been sometimes regarded as hostile to the
reformatory idea which was beginning to gain ground in Europe; but in
rejecting sentiment, he, at the same time, admitted that, controlled
by reason, it was a useful monitor, and, indeed, it is the great merit
of Bentham that, in an age when there was grave need of adjustment of
the essential factors of punishment, he worked for a compromise between
a too great pre-occupation with its moral purpose, and a too severe
insistence on its penal and terrifying effect. Though in vigorous
language he preached the gospel of 'grinding rogues honest,' it was
part of his plan to educate, to classify, to make methodical provision
for discharge, and, lastly, he may be said to be the founder of the
modern school of criminology in laying stress on the absolute necessity
of preventing crime by discovering and combating its causes.
But Bentham was in advance of his age in these matters, though his
writings exercised a considerable influence in France, where jurists
were busy preparing the Penal Code of the First Empire. History, by
the pen of Professor Lecky, has severely condemned the statesmen of
that period for their callous indifference to all questions relating
to the treatment of crime and of prisoners. He says: "England, which
stood so high among the nations of the world in political, industrial,
and intellectual eminence, ranked in this matter shamefully below
the average of the Continent." There was, in fact, no penal system,
strictly so-called. It was simply a policy of '_débarras_,' under which
all offenders against the law were shipped to the Colonies; young
and old, grave and petty offenders were all banished under a rough
and ready scheme of Transportation, (as explained in my Chapter on
the history of Penal Servitude). So long as this System lasted--from
1787 to 1845--the modern problems, which are involved in keeping
our prisoners at home, did not occupy the public mind. This apathy
and callousness was not due entirely to the sense of security which
Transportation gave by the practical elimination from the body politic
of persons presumed dangerous to the State: it was due also to the want
of imagination, which is the parent of cruelty. For this, the absence
of any system of National Education must be held responsible. It was
not until imagination was quickened by the great religious revivals,
by the gradually increasing power of the Press--(the champion of all
forms of unnoticed suffering) and by the spread of education among
the masses, that Philanthropy, in its modern garb, the Inquisitor
of prisons and of the dark places of the world, came down to the
earth, and demanded that all those cruelties which were associated
with English penal law should cease, and that it should no longer be
possible to say with Sir S. Romilly (1817) that "the laws of England
were written in blood." _Excidat illa dies ævo nec cetera credant
secula._
But dawn was breaking, and the impulse that was to compel attention to
'_la question pénitentiaire_' came from the other side of the Atlantic.
I have shown, in tracing the history of imprisonment for short
sentences (Local Prisons) in this country, how paramount was the
influence of America in the first half of the last century. The
echo of the controversy between those who upheld the Auburn and the
Philadelphian Systems--the Cellular and Associated plans--respectively,
still lingers. In America, the movement which determined the reform of
Prisons was essentially religious. It was the old idea of '_Pénitence_'
borrowed from the Canonical Law, which there, as in Europe, dominated
the minds of men who regarded a sentence of the law as the instrument
for bringing back the mind of the offender, by solitude and meditation,
to remorse for the sinful act, and amendment for the future. The prison
cell, as with the monks of old, was the method of redemption--"_cella
continuata dulcessit_." If by its positive effect the cell worked
redemption of the soul, its negative result was claimed to be equally
efficacious in preventing contamination by means of segregation.
Pressed severely to its logical conclusion, cellular seclusion became a
refinement of cruelty, while, on the other hand, promiscuity, resulting
from unregulated association, was admitted in this, as in other
countries, to be the nursery of crime. From that day, the course of
Prison Reform has been in the direction of finding a compromise between
these two opposite principles; an effort to reconcile the deterrent
effect of punishment with the object of so improving the mind and body
of a prisoner that he shall leave Prison a better and not a worse man.
Because it is a more inspiring and a nobler task to reform a man by
punishment, than to use punishment merely as the means of retribution
by exacting from him the expiation of his offence by a dull, soulless,
and a monotonous servitude, public sentiment, in all its zeal for the
rehabilitation of the offender, is apt to overlook the primary and
fundamental purpose of punishment, which, say what we will, must remain
in its essence retributory and deterrent.
It is a curious and interesting fact that a dispute between two
neighbouring States in America as to the best plan to follow in dealing
with offenders--whether it was better to keep them in their cells
day and night, or during the night only, should have determined for
England, France, and other parts of Europe the method of imprisonment
to be adopted, _viz_:--the Cellular System. The System found favour
in Europe, as in America, for its moral or religious value; in
other words, the _reform_ of the prisoner from this date takes its
place deliberately as one of the essential factors of punishment,
side by side with retribution and deterrence. As I have said, it
was essentially a religious movement, but to the success of the
propaganda, which elevated the cellular system almost to a fetish,
there were contributing causes of a more practical nature,-the
admitted evils of unregulated association, the urgent need of a new
method of construction, the greater security of prisoners, and the
economy of administration, resulting from the employment of a smaller
staff for supervision. These latter considerations soon became the
principal pre-occupation of those engaged in prison administration.
For many years following the triumph of the cellular system, the
originally dominating idea of moral reform, as the principal purpose
of punishment, seemed to be lost sight of in a hurried rush, both in
England and on the Continent, to build new prisons on the cellular
plan, to improve their sanitary conditions, to regulate dietary, to
organize labour, and generally to concentrate on the economic, rather
than on the moral, improvement of those suffering imprisonment.
The writings of De Tocqueville and Beaumont, the delegates sent out by
France to study the cellular plan in America, had a wide influence in
restraining that excessive zeal for aiming at the moral or religious
reform of prisoners, which had inspired the Quakers of Pennsylvania in
their crusade against the abuses of the old system. The words of De
Tocqueville are worth quoting, as they called back the minds of men
at a time when such a warning was greatly needed, to a just and wise
appreciation of the function and purpose of punishment, and corrected
a tendency which is always asserting itself, to exaggerate the
necessity for moral and spiritual reform, at the expense of the other
essential attributes of punishment. He says, "I say it boldly: if the
penitentiary system has no other purpose than reform, the lawgiver must
abandon the system, not because it is not admirable, but because it
is too rarely attained. The moral reform of the individual is a great
thing for the religious man, but not for the statesman: a political
institution does not exist for the individual, but for the mass. Moral
reform is then only an accident of the system. Its value is in the
habit of order, work, separation, education, obedience to inflexible
rule. These have a profound moral value. If a man is not made honest,
he contracts honest habits: he was a useless person, he now knows how
to work: if he is not more virtuous, he is at least more reasonable: he
has the morality of self-interest, if not of honour."
MM. De Tocqueville and Beaumont had been commissioned by the French
Government in 1831 to visit the United States, and to report on the
comparative advantages of the Auburn and Pennsylvania systems. They
were followed in 1837 by M. Demetz, the famous founder of the Colony
of Mettray. It was due to the influence of these men, aided by the
writings of MM. Lucas and Bérenger in France, and of Ducpetiaux in
Belgium, that a remarkable impulse was given in Western Europe to the
adoption of the cellular system. Two International Congresses were held
at Frankfort in 1846, which declared in favour of the separate system.
It was to this period of keen interest in the question of prison reform
that in England we owe the model prison at Pentonville, 1842, the
Prison of Louvain in Belgium, and a large number of cellular prisons
built in France, Switzerland, Prussia, Sweden, Norway and Denmark. We
have here the beginning of the later International movement, which
afterwards found expression in the International Prison Commission-a
formal body of experts nominated by most of the leading States of the
World, whose periodical meetings in different centres since the London
Congress of 1872 are recognized as a great civilizing influence in
all that relates to the treatment of prisoners, the construction of
Prisons, and the revision of penal law.
It may be stated broadly that to France and America must be given
the credit for the impulse and energy which lit and kept alive the
torch of prison reform during those years of the last century, say
1830-70, when, by reason of dynastic changes on the Continent, and
political struggles at home, the flame might have been obscured, or
even extinguished. Although, in many countries, as in our own, eminent
men and women, whose names will always live, had even from the middle
of the eighteenth century, inspired by a lofty humanity, raised their
voices in protest against the callous indifference which tolerated
much cruelty and barbarity in the system of punishments, yet, the
main impulse came, on the one hand, from the religious zeal of the
Pennsylvanian Quakers who tried to utilize deprivation of liberty, by
means of imprisonment, as an instrument for effecting the spiritual
regeneration of the offender; on the other, from the political zeal for
the rights of man--even the reversionary rights of the prisoner,--which
dominated French thought, under the influence of the encyclopædists.
These currents, reacting on each other, determined the course of
public opinion in the direction of regarding a good, just, and humane
prison system as the index of a progressive civilization. It was the
combination of these two influences in concrete, which, just fifty
years ago, inaugurated what may be called the 'modern system.' The
famous Commission of enquiry into the state of Prisons, appointed by
the National Assembly in France in 1871, and with which the names of
d'Haussonville, Bérenger, and Félix Voisin will always be honourably
connected, was followed immediately by the mission to Europe of
Dr. Wines, the Secretary of the Prison Association of New York. To
his energies we owe the London Congress of 1872, the parent of the
International Prison Commission, established on a secure and lasting
basis a few years later. In 1877, was founded in Paris the _Société
Générale des Prisons_--the French Academy of penal science--a body of
men distinguished in law, medicine, science, and philanthropy, who
have consistently since that day, through their Journal, '_La Révue
Pénitentiaire_'--a monthly publication,--informed and educated public
opinion throughout the civilized world on all questions relating to the
treatment, and, notably, the prevention of crime.
The first International Congresses--known generally as 'Prison'
Congresses, were concerned more with 'Prison' than with penal law,
with visits to penal establishments, and with comparisons of Prison
systems. The _régime pénitentiaire_ was the principal pre-occupation,
but the subjects of discussion soon outgrew the original limits. The
sphere of inquiry gradually broadened. The prison régime is only the
expression of the penal law, which itself again is only the expression
of the public sentiment or opinion, which is the final arbiter in
deciding the methods to be followed in maintaining the rights of the
community against those who threaten its peace and security. Succeeding
Congresses, therefore, as was to be anticipated, composed, as they
were, not only of Prison officials and experts in prison management,
but of persons from all countries, distinguished in law, medicine, and
science, claimed for themselves a larger field and a more ambitious
title. _La 'Science' pénitentiaire_ is declared to be the new scope
and title of the work. It is an all-embracing phrase, and, from the
necessities of the case, of ambiguous meaning. It includes both
practical knowledge of administration, and the knowledge by which
Science, in its strict sense, can inform and instruct in dealing
with the problem of crime, and of criminal man. To these must be
added Social Science, and all implied by that wide term. The reaction
that became manifest at the close of the last century was against
what is called the "classical" conception of crime and punishment.
Professor G. Vidal, the eminent author of 'Droit Criminel et la science
pénitentiaire' has shown how rigid and mechanical, under the influence
of the French penal code, the administration of criminal justice had
become. The accused was simply a '_type abstrait_' a "_mannequin
vivant sur lequel le juge colle un numéro du code pénal_." A reaction
against this abstract conception of crime came in the early 'eighties
from a school of Criminologists known as the Italian School, of which
the chief was Lombroso. Theories of the _criminel-né_--i.e., a human
being fore-doomed to crime by atavistic propensity, and distinguishable
physical stigmata, or '_tares physiologiques_'--created considerable
sensation at the time, and it cannot be denied that, though refuted by
later enquiry, they exercised a profound influence in Europe, and gave
a direct impulse to the scientific study of the _causes_ predisposing
to criminal acts. This study has since become the principal
pre-occupation in all countries of those interested in what, by a
misnomer, is spoken of generally as Prison Reform. The phrase remains,
but it refers no longer to questions concerning the construction and
management of prisons, the comparative merits of the cellular or
associated plan, forms and methods of prison industries, staff and
discipline. The Prison Reformer of to-day has adopted from Continental
writers a phrase, which is at once the motto and the principle of
his faith. '_L'individualization de la peine_' sums up concisely the
new tendency. This phrase aptly expresses the efforts now being made
throughout the civilized world to grapple with the problem: not by
dealing with prisoners as 'abstract types,' or in the mass, by imposing
hard and fast regulations to be adopted for one and all irrespective of
individuality, but to deal with each case on its merits: to note its
peculiarities, and above all things, by 'preventive' measures to avert
an otherwise certain gravitation towards crime.
In the working out of this problem, the International Commission is
a sort of 'League of Nations,' ever striving by the invention of new
Preventive measures, not so much to improve the habitation, custody,
and treatment of offenders who are committed to prison, but to prevent
them from arriving at that stage where commitment to prison becomes
necessary, for long or short periods, in the interests of the security
and protection of the community.
The aid of science is more and more invoked, and it is with reason and
good purpose that the International movement professes to be a movement
for the discovery and propagation of '_la science pénitentiaire_.' Of
all the sciences invoked in the cause of prison reform, medical science
is assuming more and more a preponderating _rôle_ in the domain of
criminal justice. The mysterious laws of 'psychiatry'--a word of common
use and application in all discussions in the problem of crime,--now
engage, especially in the United States, a keen and close attention.
The 'psychical laboratory' is, in many States, a necessary appanage of
a penal institution. In theory, the knowledge of the mental state of
a person committing an offence is a condition precedent to a correct
assessment of guilt. Such investigation includes not only the diagnosis
by scientific test of mental state, but of all those pathological
conditions resulting, perhaps, from physical or external causes,
hereditary or otherwise, which may be held to attenuate responsibility
for any given act. The psychical laboratory as a system in aid of
justice assumes, of course, a normal or reasonable being, and to such
a being alone can full responsibility be attached. It is obvious to
what extravagance such a system can be pushed, but the underlying
principle is sound, and a perfect prison system, based on science,
would adapt its treatment to a far greater degree than at present to
the varying categories of offenders, who, under the old classical
system, which recognized only the uniform and abstract type of crime
and criminal, would be consigned equally to the one abstract and
uniform type of penalty--the prison cell.
But it is not only medical science which claims this preponderating
_rôle_. If the Lombrosian School erred in asserting the predominant
influence of what was called the 'physio-psychical' conditions of
crime: if the right to punish man be based not on the character of the
crime, but on the constitution of the criminal, the doctor would usurp
the function of the judge, and the bankruptcy of the old penal system
would be complete. It was in protest against this extravagant assertion
of the claims of medical and mental science (medico-légale expertise)
that a succession of Congresses was held on the Continent in the latter
part of the last century (_Congrès International d'anthropologie
et sociologie_), at the last of which--the Congress of Geneva,
1896--the English Government was represented. The general result of
the discussions that took place was to reject the Lombrosian idea of
the physical or constitutional causes of crime, and to assert the
importance of '_milieu_' (nurture and environment) as the predisposing
factor in anti-social conduct,--in the words of Dr. Lacassagne,
Professor of Legal Medicine at Lyon--words which sum up tersely the
familiar view that crime is entirely the result of social conditions,
'_le milieu social est le bouillon de culture de la criminalité, le
microbe c'est le criminel_.'
The relative part played by inherited propensity and social environment
remains to-day the leading subject of controversy with those interested
in the philosophical aspect of crime. England has contributed its
share to this controversy in the remarkable work of Dr. Goring "The
Study of the English Convict," of which I have given a brief account
in the Chapter "A Criminological Inquiry in English Prisons." His
early death has robbed penal science of a brilliant and earnest votary;
but his work will always remain as the first attempt to analyze the
causes of crime by strictly scientific method. An abridged edition of
his work has lately been published, with an Introduction by Professor
Karl Pearson, under whose auspices and guidance it was compiled at
the Biometric Laboratory of the London University. An Introduction by
Professor Pearson not only marks the great scientific value of this
attempt to probe the causes of crime, but gives a just and merited
appreciation of a singular effort by a very remarkable man to test the
observations and experience that came to him as a Medical Officer of
Prisons by the latest methods of scientific investigation.
On the Continent of Europe there has been proceeding since 1869 an
attempt to reconcile the extreme views of the Italian School as to the
predestination by atavistic or innate disposition to criminal acts
with the theory that the causes of crime are to be sought exclusively
in social condition. In that year, was founded _l'Union Internationale
de droit pénal_, of which the most distinguished founders were three
Professors of Law--Van Hamel, Prins, and Von Liszt, Professors of Law
at the Universities of Antwerp, Belgium, and Berlin, respectively.
Since that date, Congresses have been held at Brussels, Berne,
Christiania, Lisbon and Buda-Pesth. The object of this School,
while admitting the value of experimentation by anthropological and
sociological study and research, was to encourage preventive work, so
that the occasion of crime might be anticipated, be it that of social
circumstance which induced the predisposition to the anti-social
act (the occasional criminal), or the psycho-physiological state
which, unless discovered and checked in the beginning by appropriate
preventive handling, medicinal or institutional, is likely to become
the parent of conduct dangerous to the community (the habitual
criminal). The two factors, external and internal, often co-exist,
and the difficulty of the problem must be intensified by their
co-existence. It is, therefore, only by the 'individualization of
punishment' i.e., by a careful, and exact, and scientific system of
preventive diagnosis that a true and correct assessment of criminal
responsibility can be attained. This is the modern system--the point
to which the long road of penal device, theory, and invention leads.
The problem is scientific and social. To deal with it effectively we
require not only what science can disclose in the sphere of mental
diagnosis, and therapeutics (psychiatry), but what the improvement of
social condition can effect in raising the standard of life.
It may not occur to those who observe casually, and perhaps carelessly,
the phenomenon of crime to what an extent it depends on, and can
be explained by, strictly social conditions. What is summarized by
criminologists under the title of '_l'hygiène préventive_' comprises
all those social and political reforms which make up the 'Social
Programme,' which is engaging the attention of our statesmen to-day.
Better housing and lighting, the control of the Liquor Traffic, cheap
food, fair wages, insurance, even village Clubs, and Boy Scouts, in
fact, all the special and political problems in vogue to-day--all react
directly on the state of crime. The great War--terrible and hard school
of experience though it has been--has given us the great object lesson
of what new conditions of life, resulting notably from the control of
the Liquor Trade and facility of employment, can effect. A century of
legislation directed to the changes of the penal code, or the methods
of punishment, would not effect what social legislation, induced by
the War, and affecting the daily habit and living of the people, has
revealed during the last five years,--the numbers coming to prison
reduced 75 per cent! 71 per 100,000 committed to prison in 1918, as
against 369 in 1913: the committals for Drunkenness reduced from 70,000
to 2,000: the almost complete disappearance of Vagrancy--a reduction
from 24,000 to 1,200--the "_plaie sociale_"--the despair and the
problem of the prison and social reformer.
By recapitulating shortly in this Preface the history of punishment in
its successive phases since the question of Prison Reform first began
to occupy the minds of statesmen and philanthropists in the middle of
the eighteenth century, I have endeavoured to make it clear to those
who, in the future, will be responsible for the law and practice of
Prisons, the direction in which progress lies. Given firm, thoughtful,
humane administration in all that concerns the actual custody of
all offenders of both sexes of the various categories, given a wise
classification and treatment according to age, sex, and nature of
the offence--the future lies in Preventive Science; on the one hand,
medical science, strictly so-called, which shall, by diagnosis and
therapeutics of the mental and physical state, _in early age before
it is too late_, correct and restrain by suitable preventive means,
institutional or otherwise, the tendency to anti-social conduct; and
on the other, social or political science, which, by raising the
standard of life among the masses, will re-constitute the '_milieu_'
whence vice and misery spring. Let not the reproach again be made by
an English historian that "England falls shamefully below the level
of foreign countries" in this great matter. If foreign countries
rightly admire the method, discipline, firmness, and impartiality of
our penal system, let them also recognize that we are not behindhand
in what Preventive Science has to teach in the domain of medicine,
law, and social hygiene. While firmly maintaining the system of human
rights unimpaired, and while not failing in the protection of the
State from any attack made on that system by persons, individually
or collectively, let us exhaust every means for saving the potential
offender from succumbing inevitably, in the absence of prophylactic
methods, to the temptations to commit anti-social acts, which from
causes mental, physical, or social he is unable to resist. This is
the meaning of the 'individualization of punishment'--it is quite
consistent with a firm administration of penal justice, but it destroys
for ever the old classical idea of the 'abstract type of criminal.' In
other words, justice demands that the old formula of 'Imprisonment with
or without hard labour' indiscriminately applied, shall no longer be
held to satisfy all her claims.
The reaction against this so-called '_dosimétrie pénale_' i.e.,
the abstract conception of crime and the mechanical application of
punishment 'according to code' is a growing force. It is marked
in the United States of America by the universal adoption of the
'Indeterminate sentence,' and on the Continent of Europe by various
degrees for conditional conviction and liberation which find their
place in the latest penal codes. In England and America, Probation:
in France and Belgium, the '_sursis à l'exécution de la peine_'--all
mark the reluctance to resort to fixed penalties when Justice can be
satisfied by other means. England, I believe, stands alone in its
adoption of the system of Preventive Detention--one of the most notable
reforms of recent years for dealing with the Habitual Criminal. The
success of the system, so far as it has gone, goes far to justify
belief in the virtue of Indetermination of sentence. Public opinion
may not be ripe for this yet, as applied to ordinary crime, but the
principle which the system of Preventive Detention illustrates,
_viz_:--the careful observation of the history, character, and
prospects on discharge by an Advisory Committee on the spot, with a
view to the grant of conditional freedom, furnishes in a different
sphere an interesting example of the value of 'individualization.' The
strict condition of release is that a man places himself under the
care and supervision _not of the Police_, but of a State Association,
organized and subsidized by the Government, but entirely controlled
by a body of unofficial workers, who keep him under strict but kindly
supervision, provide him with employment and lodgings, but unfailingly
report him to the Authorities if he fails to observe any one of the
conditions on which freedom has been granted. The singular success of
this system applied to the worst and most inveterate criminals, each
of whom has been found by a Jury to belong to the habitual criminal
class, has naturally induced the opinion which is gaining ground,
that similar methods might, with advantage, be used in dealing with
the ordinary penal servitude population, and be substituted for the
old ticket-of-leave system, under which remission of sentence can be
earned by a more or less mechanical observance of prison rules, on the
condition that the unexpired portion of the sentence is passed under
Police Supervision. It is possible that comparison of the two systems
may engage public attention in the future, when interest in prison
reform, obscured and diminished by the greater problems which the war
has created, again asserts itself.
I have shown in the Chapter on Discharged Prisoners the
indispensability of a good system of 'Patronage' or aid-on-discharge.
Much has been done in this respect in recent years. The action of the
Government in 1911 in recognizing the supreme importance of regulating
the discharge of persons from penal servitude by the establishment of
a State Association for this purpose, was a great step forward. To the
Central Association for the aid of discharged convicts, then created,
may be attributed a large and an honourable share in that remarkable
decrease of recidivism which prison statistics illustrate, and to which
reference is made in my Chapter on "Patronage, or Aid-on-discharge." It
is also a remarkable example of the value of a co-operation by which
the resources of the State, and the enthusiasm and _freedom of action_
possessed by a voluntary association, can contribute to the diminution
of crime.
The retrospective study of crime in this country since the London
Congress, 1872 (Chapter XVII.), must suggest many reflections, both
concerning its treatment in the past, and its prospect for the future.
If we eliminate the period of War, 1914-18, the special conditions of
which I have already referred to, the broad deduction may be made that
so long as the classical conception of punishment remained, i.e., the
mechanical application of the letter of the law to an abstract type
of offender, no great impression was being made either in the number
or character of offences. Statistics varied from year to year under
the influence of special circumstances; but the great stage army of
offenders in all the categories continued its unbroken array, with a
monotonous regularity, and it seemed almost a mockery to talk of social
progress, when, in the background was the silent, ceaseless tramp of
this multitude of men, women, and children, finding no rest but behind
prison walls, and only issuing thence to re-enter again.
In Chapter VII. (The Inquiry of 1894), I have shown how the public
conscience awoke at the end of the last century. It declared in a
voice that could be heard that a determined effort must be made to
grapple with this problem, and in two ways in particular, (a) It
asserted the new policy of _Prevention_, _not_ Prevention in the sense
of the old penal servitude Acts, by which a criminal was prevented
after a series of offences by strict supervision of Police from
repeating his crimes, but Prevention which would strike at the sources
of crime, by cutting off the supply _by concentration of effort on
the young offender_; and (b) by the organization of such a system of
Patronage, or Aid-on-discharge, that no prisoner could say with truth
that he had fallen again from want of a helping hand. Prevention, in
this sense, has been the watch-word of the Prison System since that
time, and its effect is distinctly traceable in the statistics of crime
since the beginning of the century.
Enough has been said to show that the future of crime is with the
statesmen and men of science. The prison administrator plays only
a small and obscure executive part--but from his experience and
observation of the causes that make for crime, he may be able to denote
the direction in which its gradual solution may be found. A quarter of
a century spent by the Author in directing the prison administration of
this country is his excuse for offering his humble contribution to this
absorbing and all-important theme--
"Enough if something from our hands gives power
To live, and act, and serve the future hour."
E.R.B.
December, 1920.
FOOTNOTES:
[Footnote 1: Although the greater part of this work was prepared in
1915, where it has been possible, the statistics furnished are of a
more recent date.]
THE ENGLISH PRISON SYSTEM.
CHAPTER I.
THE MEANING OF
"PRISON REFORM."
"Prison Reform" is a phrase of many meanings. It is used indifferently
by the publicist who is seeking a correct definition of the function
of punishment: by the utilitarian who doubts if the official system of
administration is fulfilling its State purpose: by the humanitarian
whose pity is stirred by the inevitable austerity of a system,
inflexibly applied to all who suffer deprivation of liberty, and whose
mechanical operation might, in their opinion, be relaxed relatively to
the vastly different mental and physical states of all the categories
of human beings coming, in one way or another, within the domain of the
criminal law.
All agree that the System should be, as far as possible, 'Reformatory,'
but many are tempted to overlook that it must be also, if punishment
is to have any meaning, coercive, as restraining liberty; deterrent,
as an example; and retributory, in the sense of enforcing a penalty
for an offence. When Plato said that the object of punishment is to
"make an offender good," he did not intentionally underestimate the
'retributory' theory of punishment. He only meant that, in the language
of modern philosophy, we must respect the reversionary rights of
humanity, and while inflicting punishment for an anti-social act, must
not lose sight of the duty of restoring, if possible, the offender to
society as a better man or woman. As stated by the Committee of 1894,
we must not regard him or her as "a hopeless and worthless element
of the community." It must be admitted that chastisement by pain
(_i.e._ temporary deprivation of liberty and all that that implies)
appeals only to the lower nature, but it is effective in suggesting
the consciousness of what the system of human rights means--the system
which is maintained by a strong collective determination that it shall
not be violated with impunity. This is commonly called 'retribution,'
but it has nothing to do with vindictiveness or private vengeance.
Society without such a collective determination to resent and punish
anti-social acts would be a welter of anarchy and disorder. Let us not
then be tempted in the goodness of our hearts, and in the strength of
our human pity and sympathy, to overlook the necessary foundation of
punishment, which is the assertion of the system of rights by pain
or penalty--not pain in its physical sense, but pain that comes from
degradation and the loss of self-respect.
There is some confusion in the everyday use of the phrases 'Prison
Reform' and 'Penal Reform'. Formerly, 'Prison Reform' meant the
structural reform of prisons, sanitation, order, cleanliness. To-day,
it means the reform of the "prisoner" by improved methods of influence
and treatment while in prison. 'Penal Reform' means strictly the
reform of penal law, or of the system of punishment--a question of
State policy, with which Parliament and the Judiciary are primarily
concerned. These are, of course, greatly influenced by public sentiment
and opinion. It is a difficult, complex, and subtle problem, for
the solution of which we require legal knowledge, administrative
experience, and a nice judgment of the temper of the community, and
of the balance which should be kept between the just, and even stern,
maintenance of the system of public rights and the rights of the
individual human being, which must always be respected, even under
chastisement. 'Prison Reform' is not a theory of punishment: it is an
incident of it: it is a question how far we can assert the rights of
the State without unnecessary, or excessive, or unprofitable moral and
physical damage to the individual.
Of physical damage we need not speak, for it must, I think, be conceded
that the medical care of prisoners in this country is as exact, and
patient, and considerate, as can be secured by an able, humane, and
untiring medical staff.
With moral damage it is different. The most sanguine would hardly
expect that, even with the most approved methods, the '_flétrissure_'
of punishment can be entirely avoided: the blow to pride and
self-respect, and of the respect of one's fellow creatures, must
constitute a damage which, if not irreparable, must be heavy and
even lasting. A humane administration will try and mitigate this
inevitable incident of all punishment. Its first and primary function
must be, of course, to secure obedience, discipline, order, and the
habit of industry. These things alone have a great moral value.
Many cruelties have been enacted in the past in the name of prison
discipline--solitude, darkness, chains, floggings, tread wheels and
cranks, even until a comparatively recent period, were regarded as
the essential accessories of punishment. In studying the history of
punishment, we cannot fail to be struck by the singular inventiveness
of the human mind in designing forms of suffering for those who
broke the law--crucifixion, mutilation, stoning, drowning, torture.
It was not until the folly of unprofitable and cruel punishment had
been illustrated, as in this country, by its failure to correct, or
prevent, or until the certainty of punishment was recognized as the
real deterrent for crime, that the penal system was rationalized, and
by a slow process, due to a progressive widening of the circle of
humanity, to what M. Tarde describes as "_la propagation ambiante des
exemples_," the civilized races of the world laid down the sharp and
cruel instruments by which alone it had been believed that society
could be avenged, and justice secured. It came slowly to be recognized,
not only as a religious, but as a political truth, that the worst
criminal possessed 'reversionary rights of humanity,' and that it was
only by respecting these that there existed the chance, and the hope,
that a man might be reformed by punishment, and not thrown back again
into the world with only one burning desire to avenge himself for the
cruelties which society had indicted upon him. This is the meaning of
the Platonic maxim that the purpose of punishment is "to make men good."
How do we try and 'make prisoners good in English Prisons'? Admitting
the necessity for strict regulation to secure order, discipline, and
obedience, what are the Reformatory influences in English Prisons?
Let us first consider the nature and character of the population to
whom these influences are to be applied. True, that they are all human
beings, with 'reversionary rights of humanity'; but what an infinite
variety of mental and physical states: what an infinite degree of
will-power, of self-conciousness, and of self-control, of capacity
to realize and to understand. Let us regard them as a College or
University of persons of all ages, sexes, and dispositions, and let
us not forget that this '_corpus_' on which our reforming influences
are to be brought to bear is, for the time being, not subject to
all the impulses, stimuli, hopes, rewards and temptations to which
persons in free life are subject. It was well and truly said by the
Home Secretary (Mr. Churchill) in the House of Commons, in 1910, "the
mood and temper of the public with regard to the treatment of crime
and criminals is one of the most unfailing tests of the civilization
of any country. A calm, dispassionate recognition of the rights of
the accused, and even of the convicted, criminal against the State--a
constant heart-searching by all charged with the duty of punishment--a
desire and eagerness to rehabilitate in the world of industry those who
have paid their due in the hard coinage of punishment: tireless efforts
towards the discovery of curative and regenerative processes: unfailing
faith that there is a treasure, if you can only find it, in the heart
of every man. These are the symbols, which, in the treatment of crime
and criminal, mark and measure the stored-up strength of a nation, and
are sign and proof of the living virtue in it." There could not be
better words than these to inscribe as a phylactery on the brow of
every prison administration throughout the world. They are, indeed, the
test of civilization. Do our works in this country correspond to this
profession of faith?
Of what does this '_corpus_' consist? In the year before the war there
were, in round figures, 90,000 males and 32,000 females sent to prison
for periods of less than 6 months: about 7,000 of both sexes sent for
long periods over 6 months: about 1,000 sent to penal servitude: and
about 6,000 Juvenile-Adults came within the jurisdiction of the Prison
authority, either in Borstal Institutions or ordinary prisons. Of
these, the percentage of recidivism in Convict Prisons was no less than
87% for males and 70% for females. Of those sentenced to imprisonment,
63% of the males, and 79% of the females had been previously convicted,
while no less than 17% of the males and 31% of the females had incurred
eleven or more previous convictions. Amongst the young male prisoners,
16-21, sentenced to imprisonment, about 60% had incurred no previous
conviction. The system of classification to which all these are subject
in prison, is described in Chapter VII.
All are subject alike under general prison rules to the reforming
influences of religion. The Chaplain, Priest, or Minister walks
noiselessly among them all, gleaning wheat among the tares, and calling
back those who will come to the bidding of the divine Imperatives,
which if they have been imparted in youth, have, in many cases, almost
faded from memory; and who can tell how often in the silent communings
of the cell, the spark of life and regeneration may not light again
at the voice of the patient, pleading Minister of God. It is not
only by the call of the Chapel services, with the hymns and simple
prayers, but by the regular visitation of each in their cells, that
this spark latent, but not quite extinguished, may rekindle. Do not
let us undervalue the quiet, patient, and unwearying task of those who
minister spiritually to those in bondage in prison cells. The door is
wide open to all creeds and denominations who seek to enter in; and not
only to Ministers of religion, but to lay visitors and missionaries who
find their prompting to this work by their desire to realize the holy
precept "I was in prison and you visited me." Let us not forget the
gentle and comforting influence of our Lady Visitors, and the thousands
of forlorn and despairing women, young and old, who perhaps find, for
the first time, the voice of sympathy and encouragement, which, like a
ray of sunshine, lifts the gloom from off their souls.
In addition to the carefully prescribed orders for the education up to
a certain Standard of such prisoners as are shown after examination on
reception to be in need of it, there are, too, other means by which
"the spark of life and sympathy" can be kindled in prison. Of late
years, great progress has been made in the systematic introduction
of outside influences in the form of lectures and addresses on lay
subjects, calculated to interest and inspire, and to afford matter
for reflection, and to mitigate the evil of morbid introspection
inseparable from long and monotonous seclusion. The value of such
influences is manifested in a wonderful degree by the reference made
to them in letters from prisoners to their homes and friends. In many
cases, a new outlook on life begins. Men and women who have almost
lost their humanity by habitual association with the lower conditions
of life,--its cupidities, baseness, and greed--whose minds have never
risen above the gratification of sensual desires and impulses, have
a new vista of things opened to them. Such 'conversion' may arise
quite unexpectedly and fortuitously from some simple story, from some
appealing incident in world history, even from simple explanation of
the wonders of nature or of science. During the war, the practice was
instituted of giving a weekly account of the great events occurring on
the battlefields of the world: of the heroic deeds that were done: of
the noble sacrifices that were made. There was a unanimous agreement
as to the moral value of these addresses; and it has recently been
decided to continue the system of imparting news of the world to
all prisoners by the same method of weekly addresses, Governors and
Chaplains having a discretion as to the subjects they shall select, and
the manner in which they shall deliver them. It has often been made a
reproach against the Prison System that prisoners are cut off from all
knowledge of outside events, and are thrust back again into the world
like children pushed into a dark room, and obliged to grope and feel
their way before they can stabilize themselves in the current of normal
life. This is no longer the case.
It is another reproach against the system that prisoners are doomed to
an unnatural existence by the so-called 'law of silence.' Since 1898,
there has been no 'law of silence,' strictly so-called. Previously to
that date, the order ran "The Governor shall enforce the observance
of silence throughout the Prison." The Committee of 1894 said on this
subject: "We think that the privilege of talking might be given after
a certain period as a reward for good conduct on certain days for a
limited time, and under reasonable supervision, to all long-sentence
prisoners, local as well as convict, who have conducted themselves
well, and who are not deemed unsuitable for the privilege. The present
practice of imposing silence except for the purposes of labour and
during the visits of officials and authorised persons, for a period
it may be of 15 or 20 years, seems to us unnatural. We recognize that
careful supervision would be necessary if this privilege is allowed,
but we do not think that the disadvantages which might, perhaps,
from time to time, occur would be at all equal to the good likely to
result from a partial and judicious removal of this very unnatural
restriction." The existing rule made under the Prison Act, 1898, is as
follows:--
"The Governor shall, subject to the provisions of these rules, prevent
all intercourse or communication between the prisoners, so far as the
conduct of the business of the prison or the labour of the prisoners
will permit, and shall take care that all intercourse or communication
between them shall be conducted in such manner only as he may direct.
But the privilege of talking may be given after a certain period as
a reward for good conduct on certain days, for a limited time, and
under reasonable supervision, to such long-sentenced prisoners as have
conducted themselves well, and who desire the privilege and are not
deemed unsuitable for it."
Conformably to this rule, a prisoner who desires this privilege (and
many do not desire it) and is not unsuitable for it, may, on Sundays,
after a certain period of sentence, walk and converse with another
prisoner, provided that such prisoner is of the same class, and that,
in the opinion of the Governor, the association is not likely to be
injurious. Female prisoners and invalids in hospital are allowed a
large latitude in this respect.
The object of the regulations is not to impose a strict 'law of
silence,' which is reasonably deemed 'unnatural,' but to prevent
harmful and profitless gossip, and inter-communication between
prisoners, which is not only dangerous from the point of view of order
and discipline, but as furnishing a fertile source of corruption. Those
who declaim against the 'law of silence,' in the same breath denounce
the prison régime as a 'manufactory of criminals,' or as a 'nursery
of crime.' In what way could criminals be better manufactured than by
allowing a free intercourse, where evil designs and plottings, both
for mischief inside and concerted crime outside the prison, would be
fostered and encouraged?
Apart from the organized privilege of talking, allowed to
well-conducted prisoners, there are many other ways in which their
humanity is respected--the brightening of the daily Chapel service,
with arrangements for choirs, singers, and instrumentalists taking part
in the services: weekly missions in prisons: the delivery of moral and
religious addresses by lay persons or members of religious bodies of
any denomination: weekly classes, for which prisoners can be taken from
labour, and where they may discuss among themselves selected subjects.
These classes, referred to in a later Chapter, may be composed of
'Star' and Second Division prisoners, and even ordinary Third Division
prisoners may be chosen to participate.
Lectures, with or without magic lantern, may be arranged on lay or
sacred subjects, calculated to elevate and instruct prisoners, and
containing an undoubted moral purpose and value.
Another innovation of recent years has been the issue to well-behaved
prisoners who have completed six months of their sentences, of
note-books and pencils, by which they are enabled in their leisure
moments, to make a special study of some particular subject, which is
likely either to be of benefit to them on discharge, or where their
prospects on discharge might be impaired by the absence of any special
means for maintaining the knowledge of any special subject which they
previously possessed. Notes also may be taken from books regularly
furnished from a well-stocked library, where such literary extracts are
deemed to be of value to a prisoner for the improvement of his mental
equipment.
By such methods and strivings to find the 'treasure that is in the
heart of every man,' I venture to assert that there is, and has been
now for many years, what Mr. Churchill described as the "tireless
effort towards curative and regenerative processes," and this is the
test of the virtue of a prison system, as it is also the test of the
degree of humanity in the nation.
Our prison System has, in recent years, been subjected to a very
severe test by the fact that, of necessity, penal treatment in
prison, primarily designed for the criminal class, has been applied
to thousands of individuals in no way belonging to that class, whom
it has been necessary to commit to prison under the Defence of the
Realm Acts, either as Conscientious Objectors to Military Service, or
otherwise, for the safety of the realm. It is not denied that prison
rules and regulations press hardly on men and women who, under normal
circumstances, would never have become the subject of those punitive
and repressive conditions, which are inseparable from the deprivation
of liberty by the State. It may be said generally that the restraints
of bondage were borne with courage and patience by the great majority
of those who, under the special circumstances referred to, came within
the jurisdiction of the prison Authority. To persons of refinement
and education (as many were), the many restrictions necessary for the
safe custody of criminals would naturally seem harsh, unnecessary, and
even unnatural. No doubt their experience has given an impulse to the
Prison Reformer, who, in his honourable zeal to soften the lot of the
unfortunate captive, is apt to overlook the necessity for strict rules
and regulations in dealing with a class to whose habits and instincts
he himself is a total stranger. I think that, on the whole, it may be
claimed for our Prison System that it has stood the test, and emerged
from the search-light thrown upon its inner workings, with at least the
admission that the humanities are not neglected: that it is doing its
best with the very difficult material with which it deals, to save,
encourage, and rehabilitate, when that is possible.
But good influence in prisons, and on prisoners, is a very subtle
and mysterious thing. I remember being struck by a passage in the
life of 'John Smith of Harrow', lately published. It was as follows:
"In the conduct of school-life, it is the personal factor that works
for inspiration: no perfecting of methods or machinery can ever
replace this." This can be applied literally to prison life; and the
first and principal duty of those who administer prisons is in the
effort to secure this factor of personality in the selection of the
superintending staff, not only of the superior staff--Governors,
Chaplains, Medical Officers, and Matrons, but of all the subordinate
grades, who are in daily touch with prisoners, and who by their
conduct and bearing, and example, exercise a profound influence. We
are fortunate in this country in possessing such a staff. It is not
given to every man and woman to be capable of combining discipline with
kindness: to be at the same time firm and gentle, to be inexorable in
securing obedience, while, at the same time, adapting tone and method
to the infinite mentalities and moralities to be found in Prison. It
is not an exaggeration to say that harshness and abuse of authority
are as rare in English Prisons as instances and examples of kind and
considerate treatment are abundant; and this is the more admirable when
we consider the temptations and difficulties of the task. It is in
the upright and manly attributes of our Warder class, typical of the
English national character, that a great reforming influence is to be
found. Discipline with kindness is the watch-word of our Prison Staff,
both in the higher and the lower ranks, and I can say confidently,
having examined the condition of Prisons in many foreign countries,
that in this respect, the 'tone' of English Prisons is unrivalled.
I have been referring so far to general reformatory influence of
the Prison régime, so far as it operates generally with regard to
adult prisoners, convicted of ordinary crime. There are two special
categories of prisoners, where in recent years a notable departure has
been made from prison regulations, in the direction of bringing to bear
all those special 'stimuli' and encouragements which appeal to any
better instincts that may be latent, and may inculcate laws of conduct
which shall protect the offender from a relapse into evil-doing. These
categories are (1) the Borstal lad, (2) the habitual offender. These
represent the opposite poles of criminality--the beginning and the end
of a criminal career.
In the Appendix will be found the special regulations for dealing with
each, and from their perusal it will be seen that the motive power
used is in the appeal to the sense of Honour. This appeal is conducted
primarily, and necessarily, through the natural instincts which desire
comfort and rewards in ordinary human beings. They are simple enough,
but in their simplicity is their value, because they teach the homely
lesson, which the older criminal may have forgotten, and the younger
not yet learnt, _viz_:--that by good behaviour and industry, and a
proved effort to profit by the encouragement they receive, they may
pass from a lower to a higher grade, with increasing privilege and
comfort, until in the ultimate stages they are placed entirely upon
their Honour, employed in positions of trust, free from supervision,
and even outside the walls of the establishment. In this way the
re-entry into free life is facilitated: semi-liberty precedes full
liberty, and by breaking the abruptness of the change, rehabilitation
or re-settlement under normal conditions of life is achieved.
Thus the lesson is slowly learnt that there is a reward for industry
and good conduct--not only in what can be gained in material comfort,
but that the delicate plant of self-respect, in many cases withered,
but not quite dead, can blossom again; and from self-respect follows
the respect of others, of those in authority; and after release, of
those with whom they associate in the outer world.
Those who have watched these two movements--at Borstal and Camp
Hill--have been struck by their boldness; but in their boldness has
been their great success. The Borstal and Camp Hill experiments exactly
illustrate the true meaning of 'prison reform,' _i.e._, the building
up of character on the basis of strict discipline, obedience, and
order, tempered by progressive stages of increasing trust, liberty,
and material improvement of status. When to these influences operating
inside, while the man or woman is still in custody, is added the
ever-watchful care of a highly organized system of help and protection,
on which all can rely on discharge, if ready and willing to respond to
advice given and help offered, 'Prison reform', in the sense of the
reform of the individual prisoner, is realized in its best and most
practical way. It is not Utopian: it is a fact which can be verified
by the records of the Borstal and Central Associations, which deal on
discharge with these two special categories. It is not achieved by
newspaper articles or angry denunciation of the existing system, or
by the formulation of abstract theories concerning prison treatment.
It is achieved by "personality," inside and outside the penal
institution--personality stimulated by a lofty conception of duty to
God and man. To deny these reforming influences in English Prisons is
to misrepresent wilfully, and in ignorance of the facts, the great and
good work that is being done.
As to the future, there seems to me to be three directions in which
those who are pressing for prison reform might usefully proceed:--
1. The organization of Probation on large and well-considered national
lines.
2. The application of some of the principles of Preventive Detention
to our Penal Servitude system.
3. The co-ordination, with a view to the prevention of crime, of all
organized effort, collective and individual, now existing in this
country, and of which most of the value is wasted from the absence of
unity of aim, and of mutual co-operation.
1. Though Probation is ancillary to the Prison System, and is closely
allied to the actual administration of justice in the Courts of law,
its method and working must be of profound interest and importance to
all who desire to find alternatives, consistent with the due assertion
of the law, to commitment to prison. This, as is so often said, should
be the last and not the first resort. Custom, routine, and the fatal
ease, and saving of trouble to all concerned, has, in the past, induced
the tendency to regard the warrant of commitment to prison as the
ordinary and only expedient for satisfying the claims of Justice. It
is only of late years that the successful operation of Probation, or
_sursis á l'exécution de la peine_ in foreign countries, and notably
in some of the States of America, has awakened a lively and growing
interest in this method of finding an alternative to imprisonment; and
here we have to steer a wise and prudent course between the Scylla of
harsh infliction of a '_peine déshonorante_' which imprisonment for a
few days really is, and the Charybdis of undue leniency. This is the
function of the Magistrate: on him depends a successful working of the
system, and he must have a deciding voice as to its application. Put
consistently with the free authority and discretion of the Court, it
ought to be possible to create a national system, for which the Lord
Chancellor, or Secretary of State, as Chief of the Magistracy, would be
responsible. I would not advise the imposition of any official system
independently of the Courts, but only that the political heads of the
Judiciary should take steps to satisfy themselves that Probation,
as a system, is working efficiently at every criminal court in the
country, before whom offenders of all ages, liable to the penalty of
imprisonment, are brought. It is the function of the Secretary of
State to take steps to satisfy himself that the Police Forces of the
country are working efficiently, without in any way interfering with
the discretion of the local Police Authority in the management of their
respective forces. This is done by a system of State-Inspection, and a
certificate of efficiency when all is reported well. The same system
might be applied to Probation. State control would only be exercised
through an Inspector-General at Whitehall, who would be assisted by
Chief Probation officers in the various judicial areas. These would
be paid by the State, and a system could be devised by which the
State granted a subsidy in aid of the salaries of the general body of
Probation officers, who would be appointed locally under regulations
approved by the Secretary of State. Such aid would be dependent, as in
the case of Police, on an annual certificate of efficiency. By such
means an admirable 'Salvage Corps' would be created. By 'Salvage'
I mean a body of devoted men and women who, from knowledge of the
character and history of individual cases, would be in a position to
furnish the Courts with information and suggestions which would enable
them to exercise a wise direction whether or not in any case Justice
would be satisfied by granting a '_sursis_', subject to satisfactory
conditions and guarantees, to the penalty of imprisonment. Such a
system would not conflict with the full authority and discretion of
the Court, and would, at the same time, prevent Justice from striking
blindly at the offender, by being in possession of material facts,
which, under the present system, are often concealed from it.
Such a system would be a striking advance on the road of the
individualization of the offender, which is the aim and purpose of the
modern penal system in all civilized countries.
2. The principle of Preventive Detention, which might perhaps be
extended with advantage, but with great care and prudence, to our
Penal Servitude System, is that expressed by the Advisory Committee
(Section 14 (4) of the Prevention of Crime Act, 1908, Part II), and the
provision for After-care (Section 15 of the same Act).
Long sentences of penal servitude are now reported periodically to the
Home Office for review and consideration. Without impinging in any way
on the authority of the Court, which fixes the term of the sentence,
it might be arranged that such reports should be accompanied by a
report of an Advisory Committee, set up at each convict prison, whose
opinion would be of value to the Secretary of State in deciding whether
conditional licence under adequate safeguards could be granted, or
whether the stern penalty of a sentence of penal servitude having been
sufficiently expiated, there might be a commutation of the sentence to
the less rigorous conditions of Preventive Detention. The great success
which has attended the work of the Advisory Committee at Camp Hill
seems to justify the extension of the principle, quite consistently
with a due and exact regard for the interests of Justice and the
protection of society.
Section 12 of the Prevention of Crime Act, 1908, gives power to the
Secretary of State to commute in certain cases to Preventive Detention.
An Advisory Committee could fitly advise as to the occasion for the
exercise of this power.
3. In addressing the Central Committee of Aid Societies last year,
I ventured to propose the foundation of a National Society for the
Prevention of Crime. I was led to this proposal by the experience which
has come to me in watching the operation of the great network of effort
now employed in diverse capacities throughout the country, not only
in the aid of prisoners discharged from ordinary or local prisons,
but in the supervision of Borstal, Penal Servitude, and Preventive
Detention cases through the admirable machinery of the Borstal and
Central Associations. In addition to these recognised, and more or
less State-aided, instruments for dealing with the actual offender, we
have the preventive agencies for the supervision of cases discharged
from Industrial and Reformatory Schools, as well as the large field of
care and tutelage for those placed on Probation,--all these methods
for after-care and prevention are co-ordinated with the help given by
other benevolent or religious Societies, thus forming a compact whole
of altruistic effort of what is known in France as '_Patronage_', or a
National life-saving apparatus.
My idea was to stabilize and unify all this somewhat unconnected
effort by the formation of a Central Council, on which all persons or
societies working in the field of reclamation, either of young or of
old, could be brought, so to speak, under 'one umbrella'.
There would be Committees of such Central Council in every selected
area or district, on which would be represented the local Aid Society,
the local Probation officer, the Associate of the Borstal and Central
Associations, agents of the Reformatory and Industrial School
Department, and any local representatives for dealing with the care and
employment of the young.
To such a body would be affiliated the associations which exist in many
parts of the country for the care of the mentally defective.
There is a growing appreciation on the part of Magistrates, and the
public generally, of the close and often undiscovered association
between crime and mental deficiency. Steps are now being taken,
notably in the Midlands and the North of England, for establishing
a co-operation between the Police Authority, the Courts of law, and
Committees of the County Council, working under the Mental Deficiency
Act. If such co-operation could become general throughout the country,
a new and formidable 'preventive' against many acts of petty and
repeated lawlessness would be created, and there is little doubt that
many persons of both sexes who hitherto have spent their lives in and
out of Prison--the despair of the Courts, a source of perpetual trouble
to Police, and of nuisance to their neighbours, would, on inquiry,
and mental observation, be found to be 'irresponsibles', and proper
subjects for medical care, rather than the grim severity of ceaseless
and useless imprisonment. The long and mournful roll of incurable
recidivists would cease to haunt our prisons, and public places; and
under Institutional care, would, at least, be removed from evil-doing,
if they did not regain, under medical care, their opportunity for
reinstatement in normal industrious life.
It is in these directions that I think that the hope of dealing
effectively with the ever-present criminal problem lies. Let those
who are anxious to get to the heart of this problem know that the
solution lies, not in abstract theories of so-called Prison Reform: not
in academical discussion of the best prison system to adopt: not in
the old vexed controversies of the comparative value of the cellular
or associated plan, but in patient observation of every human being,
while in the custody of the State for an infraction of its laws,
and in aiding the reconstruction of a life that has failed, by the
adoption of a system of After-care, on the lines I have described, or,
which is far better still, in endeavouring to create such a network of
preventive work throughout the land, that, as a nation, we may rejoice
in being able to feel that, at least so far as human effort can avail,
Prison, with all its consequences, shall be the last and not the first
resort, which, in the absence of well-organized preventive and curative
measures, it has too often been in the past.
CHAPTER II.
THE PRISON COMMISSION: OFFENCES, AND PUNISHMENTS.
The prisons in England and Wales are divided into (_a_) Convict, and
(_b_) Local.
(_a_) Convict Prisons were created specially to contain convicts
under sentence of transportation prior to, or in lieu of, removal
to the penal colonies, and were constituted by special Acts of
Parliament passed from time to time, which provided for their separate
administration and inspection. In 1850, they were all placed under a
Board of Directors who exercise all the powers formerly vested in the
various bodies who managed them.
(_b_) Local Prisons.--By the Prison Act, 1877, county and borough
prisons, which formerly belonged to the local authorities, were
transferred to and vested in the Secretary of State, a permanent
Commission, not exceeding five members, being created for the purpose
of aiding the Secretary of State in carrying out the provisions of the
Act.
In 1878, when the local prisons were thus transferred, there were,
therefore, a Board of Directors of Convict Prisons, consisting of
four members (including the Chairman) and a Board of Commissioners,
consisting of four members (including the Chairman). The then Chairman
of the Directors was appointed also Chairman of the Commissioners;
but, except to this extent, at that time no further amalgamation took
place, each class of prisons being administered separately. The two
Boards still have separate legal existence, but under the Prison Act,
1898, every Prison Commissioner is, by virtue of his Office, also a
Director of Convict Prisons. The Boards are now, in fact, if not in
law, amalgamated.
The control of all Prisons is thus vested in a body of Commissioners,
who act subject to the control and authority of the Secretary of
State, who is himself directly responsible to Parliament for the whole
administration.
In addition to the Convict and Local Prisons, the Commissioners are
also responsible for the administration of the Institutions established
by the Prevention of Crime Act, 1908, for dealing with:--
(a) young offenders, 16-21--Borstal Institutions.
(b) habitual criminals under 'Preventive Detention.' They are also
responsible for the care and control of Habitual Inebriates sentenced
under the Act of 1898; but, as pointed out later in dealing with the
question of Inebriety, there are, at the present time, no inmates in
custody.
* * * * *
Offences against the criminal law can be classed generally into two
divisions--Indictable (_i.e._ tried on indictment before a Superior
Court): Summary (_i.e._ tried before a Court of Summary Jurisdiction).
The Superior Courts are (1) Assizes: (2) General Quarter Sessions.
(1) The _Assize Courts_ are itinerant criminal tribunals created by
Commission to Judges of the High Court to try prisoners presented for
trial by the grand juries for the several Counties in which the Assize
is to be held. They can try any indictable offence whatever, and are
the most important of criminal Courts of first instance. In London, a
special Court, known as the Central Criminal Court, has been created
by Statute, having the same powers as Courts of Assize, and sits
monthly. (2) _Quarter Sessions._ These are held once a Quarter, and
were originally meetings of the Justices of the Peace of a particular
County. More recently, certain cities and boroughs have obtained the
privilege of a local Court of Quarter Sessions, presided over by a
Recorder, who must be a barrister. These Courts can try all indictable
offences except such felonies as are punishable by Penal Servitude for
Life or by Death.
Summary Justice is administered generally by Petty Sessional Courts
composed of unpaid local Magistrates, not necessarily of legal
experience, nominated by the Lord Chancellor; but in the Metropolis
and other Cities and populous places, _e.g._, Birmingham, Leeds,
Liverpool, _etc._, by paid Stipendiaries who are barristers of standing
and repute, appointed by the Crown. The great mass of petty offences
against the law is dealt with by these tribunals. Of late years, the
powers of the Summary Courts have been extended so as to include
certain indictable cases. Thus, young persons under 16, when charged
with any indictable offence whatever, except homicide, may be dealt
with summarily, subject to certain conditions; also adults, when
charged with various forms of larceny, theft, embezzlement, &c., where
the value of the property stolen does not exceed twenty pounds.
The punishments that the Superior Courts can impose are, generally
speaking, penal servitude for grave offences, and ordinary imprisonment
for lesser offences. The special penalty of commitment to a Borstal
Institution, or to a State Inebriate Reformatory, may only be imposed
by a Superior Court. Superior Courts have, in addition, the power to
order Whipping in the case of Robbery with Violence, and of persons
deemed to be Incorrigible Rogues under the Vagrancy Act, and for
the offence of Procuration, under the Criminal Law Amendment Act,
1912. They have power also to order a person to be placed under the
Supervision of Police for a fixed period after his punishment. In the
Summary Courts the principal punishment is by fine. According to the
Judicial Statistics for 1913, fines were inflicted in about 88 per
cent. of the cases convicted for petty offences. Where a fine is not
paid, imprisonment is generally ordered to take place in satisfaction
in lieu of the fine. Out of 128,686 persons committed to Prison by
the Summary Courts in 1913-4, no less than 74,461 were imprisoned in
default of payment of fine, the amount of imprisonment being regulated
by statute in proportion to the amount of fine. Under the Criminal
Justice Administration Act, 1914, it is now obligatory on the part of
the Courts to allow time in which to pay the fine imposed. In 1918-19,
the number of persons received into prison in default of payment had
fallen enormously, only 5,264 being received, or about 2 per cent. of
the total sentenced by the Courts to pay a fine, as compared with 15
per cent. in 1913-14. Though the maximum term which may be imposed by
Summary Courts is limited to six months, in practice the great majority
of the sentences awarded do not exceed three months.
There are also the Juvenile Courts which deal with offenders under
sixteen, as to which particulars are given in a later chapter.
There is power also under the Probation of Offenders Act, 1907, for
any Court (either Superior or Summary) to release an offender on
probation--the former, in lieu of imposing a sentence of imprisonment,
or in the case of the latter, without proceeding to conviction. The
offender may be discharged conditionally on entering into recognizances
to be of good behaviour, and to appear for sentence or conviction at
any time within three years. The Court may, in addition, order the
offender to pay damages for injuries, or compensation. A recognizance
under this Act may contain a condition that the offender shall be
placed under the supervision of a Probation Officer, and other
conditions may be that he shall not associate with undesirable persons,
and that he shall abstain from intoxicating liquors, and, generally,
that he shall lead an industrious life. Details as to the operation of
the law will be given in a subsequent chapter.
Previously to 1907, there was no Court of Criminal Appeal. The general
principle had been that in criminal cases no appeal was allowed
to either party on any question of fact; the only resource for a
wrongfully convicted man was to petition the Secretary of State. A
prisoner now has an absolute right to appeal on any question of law,
and, if leave be obtained, on any question of mixed fact and law.
He also has the right to appeal against the sentence passed on him.
Neither the Crown's Prerogative of Mercy, nor the powers of the Home
Secretary to institute such inquiry as he may think fit, are affected
by the Act.
The penalty of death is now practically restricted to cases of murder,
although permitted by law in the case of treason, and certain forms of
piracy and arson. The average number of capital sentences for the last
ten years has been 25, and of these, 13 suffered the extreme penalty of
the law.
I propose to commence the Study of the English Prison System by a short
survey of the history of Penal Servitude,--an essential preliminary to
an understanding of the System as it exists to-day.
CHAPTER III.
THE HISTORY OF PENAL SERVITUDE.
Penal Servitude was substituted for Transportation in the year 1853.
It will be necessary to trace shortly the history of Transportation,
so that the features of Penal Servitude, as they exist to-day, may be
understood. Transportation is first mentioned as a punishment under an
Act passed in the reign of Charles II, which empowered Judges to exile
for life the moss-troopers of Northumberland to any of H.M. Possessions
in America. It is stated that in the Bloody Assizes of 1685 Judge
Jeffries sent no less than 841 persons to Transportation. It appears to
have been the practice to subject these transported offenders to penal
labour, and to employ them as slaves on the estates of the planters.
An Act was passed in the reign of George I., giving to the persons
who contracted to transport a property and interest in the service of
such offenders. A great want of servants in the Colonies is one of
the reasons assigned for this mode of punishment. In spite of this,
however, many of the Colonies, especially Barbadoes, Maryland and New
York, objected to having their wants supplied by these means, and with
the War of Independence, transportation to America ceased.
It was about this time that, under the influence of Blackstone, Howard,
and others, what was known later as the Penitentiary System for the
treatment of Crime began to be considered in England, and an Act was
passed in the year 1778 for the introduction into the Prison régime of
the three factors on which the so-called Penitentiary System rested,
_viz_:--separate confinement, hard labour, and instruction--secular and
religious. Although the System was commenced in good earnest in a few
places, _e.g._, Petworth and Gloucester, under the auspices of keen
prison reformers (at these places, the Duke of Richmond and Sir G.O.
Paul) it was not till some fifty years later that general interest was
attracted by the experiments being made in the United States, where
the rival Systems--"Cellular" and "Associated," as carried out at
Philadelphia and Auburn, respectively, have become historical.
Although historically our Prison System may be said to date from
the Prison Act, 1778, a long, dismal history of ill-considered
administration was destined to intervene before the principles of
penal science, as now understood, obtained expression. It is probable
that the discovery of Australia by Captain Cook was the "_mésure de
circonstance_" which determined the prison history of this country for
nearly fifty years. The easy methods and means of transportation which
this great Colony afforded, relieved Parliament of the necessity of
inventing any new and wise methods for the punishment of crime. The
system instituted in 1788 for the transportation of offenders to the
Australian Colonies was regularly organized and extensively acted upon
up to 1840. It could not, however, survive the condemnation of the
Parliamentary Inquiry of 1837. It was condemned absolutely, as being
unequal, without terror to the criminal class, corrupting to both
convicts and colonists, and extravagant from the point of expense. This
condemnation of the Colonial System followed closely on another Inquiry
of the previous year into the Hulks, and the System of Imprisonment at
home.
Transportation to New South Wales was abolished by Order in Council
in 1840, and in the case of those still transported to Van Dieman's
Land, a "progressive stage" system was instituted, under which
convicts were able to gain a succession of privileges in different
classes, terminating either in a ticket-of-leave in the Colony, or
in a conditional or absolute pardon. This plan, however, failed, as
the benefits of a gradually improving condition could not be realized
from the fact that the supply of convicts was greater than the demand,
and so they could not be absorbed when they had qualified for private
service or employment. There was no employment to prevent these men
from starving, and the Government were obliged to furnish subsidies
and work. By 1846, accounts which had been received of the moral
degradation of the convicts, crowded together in depôts, were of so
alarming and deplorable a nature, that public opinion was deeply
roused, and the two Ministers who were then responsible (Lord Grey at
the Colonial Office and Sir George Grey at the Home Office) took the
matter in hand. Transportation was stopped for two years, and it was
generally agreed that it could not be resumed on the former plan. It
was arranged that all convicts should undergo (1) a limited period
of separate confinement at home, the advantages of which as a basis
of discipline had been fully proved at Pentonville Prison: (2) that
they should then be sent to associated labour on Public Works in this
country, or at Gibraltar, and Bermuda, and (3) thence they should be
removed on Ticket-of-Leave to any Colony disposed to receive them.
The history of Pentonville Prison is an essential guide to a clear
understanding of the actual basis of our Penal Servitude, as well as of
our ordinary Prison System. I have already stated that the Penitentiary
idea, of which the basis is separate or cellular confinement, had found
expression in an Act of Parliament of 1778, and that the idea had,
owing to many circumstances, remained obscure till it was revived in
the United States of America. In the second quarter of the last century
Mr. Crawford, an Inspector of Prisons appointed under the Prison Act,
1824, (which had again endorsed the principle, although little or no
effect was given to it) was sent to America to report on the question.
Papers drawn up by himself and Mr. Russell, also an Inspector of
Prisons for the Home District, were submitted to Parliament, and were
widely discussed. In 1837, Lord John Russell, the then Home Secretary,
issued a Circular to the Magistracy expressing his own conviction on
the efficacy of separate cellular confinement, as a means both for
the punishment of crime, and for the reformation of the offender. It
was then decided to erect Pentonville Prison as a model Prison on
the cellular plan for the purpose of practically working out a new
system of Prison discipline. The Prison was occupied in December 1842.
Commissioners were appointed to superintend the experiment, drawn from
leading members of the social and public life of the community. Two
Medical Commissioners were also appointed to watch narrowly the effect
on the health of the prisoners. The period of separate confinement was
limited to eighteen months. The Second Report of the Commissioners
expressed the opinion that the adoption of separate confinement, as
established at Pentonville Prison, promised to effect a most salutary
change in the treatment of criminals, and was well calculated to
deter, correct, and reclaim the offender; and in their Fourth Report
they stated that the Separate System was safe and efficient, and
that generally the moral results of the discipline had been most
encouraging, and were attended with a success which was without
parallel in the history of prison discipline, and that it was the only
sound basis on which a reformatory discipline could be established with
any reasonable hope of success.
In virtue of these strong and unanimous opinions, the principle of
Separate Confinement for the first stage of Penal Servitude was
established, the period in the first instance not to exceed fifteen
or eighteen months. At the end of that period the principle of
employing convict labour on national works of importance was adopted,
as affording, in connection with the reformatory influences brought
to bear in separate confinement, the best means of training the men
to those habits of industry which would fit them to earn an honest
livelihood on discharge, either at home or abroad. The abolition of
the Hulks was at the same time decided upon. The employment of a large
body of convicts on what was called the "Public Works" System commenced
a new era in the history of Prison Administration in England. It was
a combined system applicable to all convicts: (1) a fixed period of
separate confinement: (2) employment in association on Public Works
at home for a period apportioned to the term of the sentence: (3)
disposal with a Ticket-of-Leave in the Colonies. It was ordained that
a convict "shall not pass out of the custody of the Government in the
Colony until he shall be engaged, for at least a year, for service
with some private employer. If suitable service cannot be obtained,
the convict shall be employed by Government." The condition of the
Ticket-of-Leave was that "the holder is required to remain in a
particular district, must be at his dwelling from 10 o'clock at night
to day-break, and must report himself periodically to the Police
Officer of the district." This combined system of home discipline and
colonial disposal depended for its success (1) on the character and
conduct of the convict being such, while under the discipline of a
Public Works Prison, that remission could reasonably be accorded with a
view to expatriation: (2) that the Colony should be willing to receive
convicts on Ticket-of-Leave, _i.e._, in a state of semi-liberty. In
fact, convicts were able to render themselves ready for transportation
after serving less than half the period of their sentence, _e.g._,
two years, in a seven years' sentence, two-and-three-quarters in ten
years, and so on. The claims to this remission were carefully estimated
from daily records of conduct and industry kept by the subordinate
officers. No Mark System, as now understood, was then in operation. A
system of Badges (worn on the arm of every prisoner) was the principal
incentive to good conduct. As soon as the letters "V.G." (Very Good)
were inscribed on the Badge, he became eligible for a Ticket-of-Leave.
Gratuities were also credited to well-conducted convicts for conduct
and industry, respectively. There were three degrees of conduct,
carrying 6_d._, 4_d._, and NIL per week. There were three degrees of
industry--VERY GOOD, GOOD, and NIL, carrying 9_d._, 4_d._, and NIL.
The first prisoners were embarked from Portland in 1849. Favourable
accounts were received of their conduct from Van Dieman's Land and
Australia. The System, however, which was bearing good fruits, only
remained in operation till 1852, when Van Dieman's Land refused any
longer to be made the receptacle for the disposal of malefactors from
the Mother-Country, and the cessation of Transportation, and the
release of so many desperate characters at home, caused the gravest
apprehension in the public mind. There were at that time about 8,000
male convicts in the Convict Prisons in England, and at Bermuda and
Gibraltar. The question arose whether the men should be released
perfectly free, as had previously been the case of thousands discharged
from the Hulks, or whether the plan of granting a Ticket-of-Leave
on a principle which had long been established in the Colonies,
should be adopted. The Penal Servitude Act, 1853, represents the
decision of Parliament on the matter. That Act substituted sentences
of Penal Servitude for those of Transportation, four years of the
one being deemed equivalent to seven years of the other; and the
Secretary of State was empowered to grant to a convict a licence to
be at large during the unexpired portion of the original sentence
of Transportation. Public opinion remained, however, restless and
dissatisfied with the discharge of so many Ticket-of-Leave holders
in the Mother-Country, and a formidable public agitation led to the
appointment of a Select Committee of the House of Commons in 1856.
The Penal Servitude Act of 1857 embodies their recommendation,
_viz_:--that the terms of Penal Servitude should be extended to a
period corresponding with former sentences of Transportation, and that
every punishment by Penal Servitude should, in addition to separate
Imprisonment and labour on Public Works, include a further period
capable of being abridged by the good conduct of the convict himself,
_i.e._, that there should be a remission of part of a sentence of
Penal Servitude in the case of those convicts whose conduct in Prison
was such as not to deprive them of the indulgence. The portion to
be remitted varied from one-sixth in the case of a three years, or
minimum, sentence, to one-third of a sentence of fifteen years and
upwards. The principal punishment for serious crime became then what it
has remained ever since, and involves a triple responsibility on the
part of the Judge who passes the sentence, the Secretary of State who
fixes the maximum amount of remission, and the Prison Authorities whose
duty it is to keep a just account of the conduct and industry which
will enable them to reckon the amount of remission to be granted.
What has since been known as the Progressive Stage System was
introduced by regulations passed subsequently to the Act of 1857.
They prescribed a period of nine months in separate confinement, the
remaining term of the sentence being divided into three stages of
discipline, representing three equal portions of the residue of the
sentence. On passing from the first to the second Stage, prisoners were
rewarded in the way of extra gratuities, badges, etc. On arriving at
the third Stage, there was a further increase of privileges of the same
nature, and a different dress from that of ordinary convicts was worn.
The object aimed at was to devise a useful system of progressive
reformatory discipline, based upon a nice adjustment of the elements of
hope and repression, but subject to the principle that the punishment
due to the crime is the primary object, and that, consistently with
that, no effort to reform should be neglected.
This idea of progressive reformatory discipline had, therefore, an
entirely English origin, and was the result of the tireless efforts
made at that time by Sir Joshua Jebb, and his colleagues, to devise a
system for the punishment of serious crime in lieu of Transportation.
It retained such features of the Colonial System as it was practicable
to engraft on the system of Penal Servitude at home, although this
latter involved a longer term of detention in actual custody with
diminished prospect of employment on discharge.
It betrays a curious ignorance of the English System that the origin
of this idea has become historically attributed to an Irish source.
Idle principle which had been established with so much care at
Pentonville and Portland was introduced into Ireland by Sir Joshua
Jebb himself, when, in consequence of the number of convicts in that
country rising from 700 to two or three thousand, he was ordered by
the Government to proceed to Dublin, and advise the Prison Authority
there with a view to the adoption of the Progressive System. The
English Rules were, as far as possible, applied at Spike Island and
at Mountjoy. In 1850, a few years later, Sir Joshua Jebb was again
ordered by the Government to proceed to Ireland, but as he was unable
to go, Captain Knight, Governor of Portsmouth Prison, took his place,
with the result that a Board of three Directors was formed, (of which
Captain Knight was a member) who entered upon their duties in 1854.
Captain Crofton, Chairman of the Board, stated in evidence before
a Committee of the House of Commons that he had followed out the
English System, and in the Report for 1855 it is stated that the
System of Progressive Classification continued to have an excellent
effect. The only difference in the Irish System was the adoption of an
Intermediate Stage before discharge followed by Police Supervision,
both the conditions having been established as elements of the
English System in the Colonies. This part of the Colonial System was
not, however, adopted in England, as the Government naturally shrank
from the great and novel responsibility of finding employment in
England for discharged convicts. Ireland, however, with its rural
and scattered population, its demand for labour, and its centralized
police, afforded facilities both for securing employment, and, with
it, police supervision, which should not be hostile, as a system of
_espionage_, but friendly in its character, and from knowledge of
local circumstances, calculated to promote the welfare of the convict.
The relatively small number of convicts in Ireland rendered easy the
introduction of the so-called Intermediate System, which was simply
the collection of the better-disposed convicts previous to their
discharge in centres under easy discipline, with a view to disposal
under favourable conditions. The strong belief which existed at the
time that the so-called Irish System was producing results which were
unprecedented was due to the economic history of the country. During
the years when the system was introduced, it happened that Ireland was
passing through a crisis without parallel in the history of Europe.
The crisis included a famine, a pestilence, an exodus, a transfer of
large areas of land to a new proprietary, and the introduction of a new
Poor Law. The population was decimated three times between 1845 and
1861. Towards the end of this period, work became plentiful, and wages
rose as much as one hundred per cent. At the same time, in England
the population was increasing, work was difficult to find, there was
no centralized police as in Ireland, and any comparison between the
results of the two Progressive Systems would have been valueless, the
conditions being so entirely different.
Owing to an increase of serious crime in the early 'sixties, public
attention was again called to the system of punishment in force, and a
Royal Commission was appointed to enquire into the operation of the
Penal Servitude Acts. It was found that the late increase in crime
coincided in point of time with the discharge of convicts sentenced
for short terms, _i.e._, for three years under the Act of 1857; and
it was proposed that the minimum term of penal servitude should be
increased, and that longer sentences should be passed on persons guilty
of habitual crime. The Commissioners pointed also to defects in the
methods of identification: they objected to reconvicted convicts not
receiving remission, and believed that it would be more effectual to
pass long sentences on reconvicted prisoners than to remove the chief
inducement to industry and good conduct. They found fault with the
Regulations made under the Act of 1857, on the ground that they did not
indicate to convicts with sufficient clearness that remission could
only be earned as a reward for industry and conduct. They objected
to giving credit for general good conduct as well as for industry,
on the ground that the mere abstaining from misconduct gives no just
claim for reward. They advocated the adoption of the Mark System as
introduced into Australia by Captain Maconochie, and, subject to a
considerable remission of punishment earned under this system, they
were in favour of longer sentences. They came further to the opinion
that the Irish System of Police Supervision should be adopted in
England. They thought that the sentence of Penal Servitude should be
for not less than seven years, subject to the concession that the third
of a period would be remitted under the operation of the Mark System,
when the highest industry had been maintained. They were in favour of
continuing Transportation to Western Australia: they pronounced against
the high rates of gratuities which convicts in England were entitled to
receive, and regarded favourably the system by which convicts in the
Irish Intermediate Prisons, and the "road parties" in Western Australia
were allowed to spend a weekly portion of their earnings in procuring
for themselves certain indulgences. Appended to the Report of the
Commission was a Memorandum by Lord Chief Justice Cockburn, which has
become historical as laying down the principles which, in his opinion,
ought to be observed in the punishment of offenders, _viz_:--
"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 calculated 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."
The views of the Lord Chief Justice on the value of Police Supervision,
and Ticket-of-Leave, and the aspect from which he regarded the value of
the Irish Intermediate System attracted much attention at this time. He
stated:--
"Those who advocate remission, make supervision an essential element
in their system, as necessary not only for the security of the public,
but also for the protection of the convict himself when first set free
and exposed anew to temptation. But it may be questioned first, whether
supervision is practicable; secondly, whether, if practicable, it is
not more mischievous than beneficial. There can be little doubt that by
change of name, and change of locality, which, as we have just seen,
is largely resorted to for this purpose, holders of Tickets-of-Leave
can without much difficulty elude the vigilance of the police; and
no adequate means have been suggested for satisfactorily overcoming
this difficulty. But a far more serious objection arises from the
fact that, at least in this country, any supervision by the police,
or other officer appointed for the purpose, would be fatal to the
convict's chance of employment, on which his continuing in the right
course, if so disposed, so materially depends. Police supervision is
incompatible with the concealment of the man's antecedents, while, in
the great majority of instances, the well-doing of the convict must
depend on his secret being kept. Few masters would employ a man who
was known to be a convicted felon, and an equal obstacle would be
found in the disinclination of other labourers to be associated with
one thus degraded. It would seem, therefore, that if remission is to
be continued, it would be better that it should not be attended by
any attempt at supervision, the beneficial effects of which, from the
difficulty of carrying it out, are doubtful, while its mischievous
tendency, so far as relates to the welfare of the convict, is apparent.
It would seem to be better to leave the liberated convict to take
his chance of finding employment and making his way as he can, than
to fetter him with a clog which may prevent the possibility of honest
exertion."