Act was passed raising the minimum sentence of Penal Servitude from
three to five years. The Act also authorized any two or more Justices
of the Peace to exercise powers of corporal punishment for offences
against Prison discipline, hitherto vested exclusively in one of
the Directors, the Commission of 1863 having expressed the opinion
that acts of violence committed by convicts were not punished with
sufficient promptitude or severity. This measure also enacted the
principle that a convict on licence should report periodically to the
Police of the district in which he should reside, and any failure to
comply with the conditions imposed in the licence might result in its
forfeiture, and in the re-committal of the holder to Prison.
As a result of this measure, the Progressive Stage System, through
which convicts passed on their road to remission, was further defined
and elaborated, and the Mark System as now in operation was instituted.
Every convict was required to earn by actual labour a certain number
of marks, proportioned to the length of his sentence, to enable him to
purchase, as it were, any remission of sentence, or to advance from
the lower to the higher class. Although misconduct would involve a
forfeiture of marks, the marks are allotted simply for actual industry,
as shown by the amount of work done, and are checked by the actual
measurement of the work, where such is possible. The Directors, in
their Report for 1865, comment on the introduction of the system as
follows:--
"The value of the Mark System when honestly administered is, that it
gives a tangible idea to the convicts of the value of their daily
labour, and our endeavour has been to impress upon them that they
must earn these marks to gain the advantages held out to them of
remission of sentence and advancement in classes. Like any other system
of recording the conduct and industry of convicts, the Mark System
requires careful watching, to prevent it from degenerating into mere
routine, and to avoid favouritism or intimidation. We have under
existing circumstances the advantage that the convicts are employed
in important Public Works, which admit of accurate measurement and
valuation; and we think the checks we have adopted are sufficient to
guarantee that whatever the convicts do earn will be earned by fair
labour accompanied by good behaviour. It is very satisfactory to us
to state, that although none of the officers of the English Convict
Prisons had any previous experience of the working of the Mark System,
which might naturally be expected to be regarded with some kind of
suspicion, its success has far exceeded our expectations. The Governors
and the subordinate officers have devoted themselves very zealously to
master the principles and details of the Mark System, and have entered
into the spirit of the measure with great zeal, and the testimony of
the Governors to the beneficial results on the labour and industry
of the convicts is very gratifying. The convicts themselves take a
lively interest in the account of their marks, which they watch with
earnestness, and fully avail themselves of the privilege of bringing
before the Directors any grievance they think they have respecting
them."
The Mark System, as then introduced, has remained in operation ever
since, and may be regarded as the fundamental principle of the Penal
Servitude System. We have not at our disposal to-day the same amount of
"Public Work," strictly so-called, _i.e._, buildings, harbour-making,
&c., and the allocation of marks cannot be checked to the same degree
by actual measurement of work done, but the record of daily industry,
whatever the employment may be, is strictly kept. The gain or loss
of marks, either for remission or stage, constitutes the reward
or punishment lying at the root of convict discipline. As will be
explained in a later Chapter, this has been applied also to the Local
Prison System, _mutatis mutandis_, in common with many other features
in the Convict Prisons, which, previous to the Prison Act, 1877, were
alone under the direct control of the Government.
At the same time a considerable reduction was made in the large amount
of gratuity paid to convicts, and the maximum earnable was reduced to
£3, irrespective of length of sentence, with power to grant a further
bonus of £3.
The changes resulting from the Royal Commission of 1863, and the
Penal Servitude Act of 1864, were generally satisfactory as tested by
the number of persons sentenced to penal servitude. The Authorities
reported in 1871 that there was good reason to believe that great
progress had been made in solving the difficulty of forming an
effective system of Secondary Punishment. Although in that year
there was a considerable increase in the number of reconvictions to
penal servitude, this was due to an alteration in the law brought
about by the Habitual Criminals Act, 1869, and the Prevention of
Crimes Act, 1871, by which greater facilities were given to the
Police for the detection of habitual criminals, the proportion of
recommittals depending more on the activity of the Police and means
of identification at their disposal than on any changes in the Prison
System. The Act of 1871 provided that a person convicted a second time
on indictment might be sentenced to be subject to Police Supervision
for a number of years, not exceeding seven, after the expiration of
his sentence. During such period he is required to notify his place
of residence to the Police, and to report himself to them monthly, in
default of which he is liable to imprisonment. The Act also imposed
similar obligations and penalties on persons released from penal
servitude, and, further, if it were proved that the convict was
living dishonestly, he would be liable to be sent back to prison to
undergo the remainder of his unexpired portion of penal servitude.
The effectual supervision of a discharged convict, which resulted
from these provisions, began to show itself in an increase both in
the number of sentences to Penal Servitude and in the number of
reconvictions. In the year 1876, these latter had nearly doubled during
the past two decades, rising from 11 to 21 per cent.
At this time it appears that some disquietude arose in the public
mind, both with regard to the alleged severity of discipline to which
Penal Servitude prisoners were subjected, and also with regard to the
contamination due to the association of all classes of convicts on
public works. There was then no classification of prisoners sentenced
to Penal Servitude, and all herded together, irrespective of age,
antecedents, and habits. This disquietude led the Directors of Convict
Prisons to suggest to the Secretary of State that an independent
inquiry should be held into the Administration of Convict Prisons,
feeling confident that any full and impartial inquiry would tend only
to establish the soundness of the principle on which the Convict System
was founded and the care with which it was administered. A Royal
Commission was accordingly appointed in 1878, with Lord Kimberley as
Chairman, and their Report marks another epoch in the history of Penal
Servitude. The Committee advised an improved system of Classification
by placing in a distinct class those against whom no previous
conviction of any kind is known to have been recorded. This was the
origin of the "Star Class" System, _i.e._, the formal separation
of the First Offender from the rest, which is one of the peculiar
features of the English Convict System. Since those days this system of
classification has been greatly improved and extended, as will be shown
later; but the "Star Class" represents the first and most practical
attempt to introduce the principle of segregation of the better from
the worse, which has since become so familiar as an essential condition
of any well organized Prison System. The Commission approved generally
of the rigour which had been introduced into the Penal Servitude System
by the Act of 1864, and subsequent Acts, which imposed and facilitated
stricter police supervision on discharge. They condemned, however, that
provision of the Act of 1864, by which seven years was made the minimum
sentence after a previous conviction for felony. They were, however, in
favour of retaining the minimum of five years for a sentence of Penal
Servitude.
Another respect in which the Report foreshadowed the future development
of the System was the great stress laid on the importance of taking
steps to secure the inspection of Convict Prisons from time to time by
persons appointed by the Government unpaid and unconnected with the
Department. This idea was resisted in the minority Report by one of
the members of the Commission, and also by the Prison Authorities of
that day. It denotes the want of public confidence which, at a time of
awakening interest and curiosity in the administration, was sure to
arise from a system of control which was vested in a close bureaucracy,
such as almost from necessity, having regard to the history of the
case, existed at that time for the management of Convict Prisons.
It was nearly twenty years later that the principle, not only of
unofficial visitation and inspection, but of actual co-operation in the
government of Convict Prisons, was recognized by the Prison Act of 1898.
The succeeding ten years were marked by a remarkable fall in the number
of sentences to Penal Servitude. The average yearly numbers, which
for the five years ended 1864 had been 2,800, fell to 729 in 1890, or
about two per 100,000 of the population,--a point at which it remained
for many years; but during the last five years it has fallen to the
lowest on record, _viz_:--·9 representing only 340 committals during
the year. In 1891 an Act was passed reducing the minimum period of
Penal Servitude from five years to three, and various minor alterations
in the law affecting the practice of licensing convicts were also
made; thus, convicts were allowed to earn marks during the nine months
of separate confinement (with which each sentence commenced) in the
same way as during the remainder of their sentence, so that the
maximum remission to be earned is exactly one-fourth part of the whole
sentence: also convicts serving remanets of former sentences became
able to earn marks under remanets in the same manner as under original
sentences. The same Act also gave power to the Secretary of State to
remit the requirements as to reporting to Police on discharge.
CHAPTER IV.
PENAL SERVITUDE TO-DAY.
Three years later the principles of Prison treatment, as prescribed
by law for all Prisons, Local and Convict, were made the subject of
a fierce indictment in the public press. Criticism was directed,
not only against the principles of administration, but even against
the _personnel_ of the administering authority. An inquiry, which
was ordered by the Secretary of State, had reference mainly to the
administration of Local Prisons which had been taken over by the
Government in 1877, and were administered by a Board of Commissioners,
distinct from the body of Directors, but it also called in question
the principle of a long period of separate confinement which had for
many years been the preliminary stage of a sentence of Penal Servitude.
It also considered the question of offences committed by Habitual
Criminals, whether in Local or in Convict Prisons, and offered the
opinion that a new form of sentence should be placed at the disposal of
Judges, by which such offenders might be segregated for long periods of
detention under conditions differing from those either of Imprisonment
or Penal Servitude.
The changes that have taken place in the Penal Servitude System since
that date have been far-reaching and important.
1. The Progressive Stage System has been recast with the object of
increasing the inducements to good conduct and industry in each Stage,
and to bring the benefits of the System within the reach of the great
majority of convicts who, by the shorter sentence of three years,
under the operation of the Act of 1891, were excluded from them. At
this time no convict whose sentence was less than six years, and
who, after deducting one-fourth remission of sentence allowed to
all convicts, _was not more than four years in Prison_, could fully
profit by the System, and thus two-thirds of the convict population
were not in Prison for a sufficiently long time to be really subject
to the benefits which the Stage System offers. Only one-fourth just
got beyond the Second Stage, while one-third did not reach the Fourth
Stage, and none of these could reach the "Special" Class, which, with
the privileges it entails, may be regarded as the principal reward
which the Penal Servitude System affords. A convict in this Class earns
a special remission of one week and extra gratuity, wears a special
dress, and is eligible for special employment in positions of trust.
The wisdom and value of the system consists in its adaptation to each
period of sentence, so that it may be within the reach of each convict
who works hard and behaves well to gain privileges.
2. Another serious defect in the Penal Servitude system at that time
was insufficient classification. There was no classification except
that of the "Star Class" as already described. The object of the "Star
Class" was to segregate prisoners not previously convicted and not
habitual criminals from those versed in crime. There were only 370
convicts out of a total of nearly 3,000, or not much more than one in
ten, eligible for the "Star Class." The others were a heterogeneous
mass, who, although not considered eligible for the exclusive caste
of "Stars," yet, in age, character, and antecedents differed greatly.
To meet this, convicts are now divided into (_a_) the Star Class;
(_b_) the Intermediate Class; and (_c_) the Recidivist Class--each
class being, as far as practicable, kept apart by themselves, and not
allowed to associate with convicts of the other classes. (_a_) _The
Star Class._--Any convict may be eligible for this class who has never
been previously convicted, or who is not habitually criminal or of
corrupt habits. Convicts in this class may be liable to be removed to
the Intermediate Class if found to exercise a bad influence over other
convicts; (_b_) _The Intermediate Class._--Any convict may be placed in
this class who has not been previously convicted, but who, owing to his
general character and antecedents, is not considered by the Directors
to be suitable for the Star Class; or whose record shows that he has
been previously convicted, but not of such grave or persistent crime
as would bring him within the Recidivist Class. Convicts in this Class
may be promoted to the Star Class on their showing proof of a reformed
character, or they may be reduced to the Recidivist Class if they are
known to be exercising a bad influence over other convicts. (_c_) _The
Recidivist Class._--Any convict may be placed in this class who has
been previously sentenced to Penal Servitude or whose record shows that
he has been guilty of grave or persistent crime; or whose licence,
under a sentence of Penal Servitude, has been revoked or forfeited.
There is also a separate classification of convicts sentenced to Penal
Servitude who, on conviction, are under the age of 21 years.
If under the age of eighteen, they may be sent by order of the
Secretary of State to a specially selected Prison for treatment under
the Rules for Juvenile-Adult prisoners. To those that remain in a
convict prison, the principles of Borstal treatment are applied as far
as practicable.
A new category of convicts was also established known as the Long
Sentence Division, _i.e._, convicts sentenced to 8 years or more, and
who had served more than five years under ordinary rules. These men
are specially located: they wear a special dress, earn gratuity, and
may purchase articles of comfort or relaxation. The rules provide for
meals in association, and for conversation at exercise and meals; and,
latterly, a still further category has been established known as the
"Aged Convicts" Division, in which a convict may be placed when it is
clear from his advanced age, and the length of the sentence remaining
to be served, that (1) he is physically feeble and not dangerous,
and (2) that he has little prospect of surviving the sentence in
confinement. Subject to good conduct, a prisoner in this class is free,
as far as possible, from all penal conditions.
One of the recommendations of the Penal Servitude Commission of 1879
was that Weakminded Convicts should be concentrated in special Prisons,
and placed in charge of specially selected officers. The medical
evidence given before the Prisons Committee of 1895 was in favour of a
more effective concentration than had hitherto been carried out. Since
1897, all male convicts whose mental condition was considered doubtful
or defective have been transferred to Parkhurst Prison. The numbers
in this class increased, and the experience gained by the methods
adopted for their treatment enabled the Directors in 1901 to formulate
special regulations for their treatment. These regulations are of a
wide and general character, and admit of an elasticity of treatment
for the varying types classed as "weakminded"; at the same time they
ensure that the departure from the rules and routine applicable to
ordinary prisoners shall be minimised as far as possible, so that any
marked difference of treatment should not operate as an inducement
to malingering. A similar class for weakminded female convicts was
commenced at Aylesbury Prison in 1906.
3. The period of Separate Confinement which, from the earliest days,
had preceded a sentence of Transportation or Penal Servitude, has,
during recent years, been the subject of much consideration. The
Separate System for convicts, as already explained, owes its origin
to a letter addressed in 1842 by the then Home Secretary, Sir James
Graham, to the Commissioners of Pentonville Prison. It was the
success realized at Pentonville in the early 'forties which has made
Separate Confinement part of the sentence of Penal Servitude in this
country from that day to this. When Transportation ceased, and with
it the system of selecting particular convicts, young and not versed
in crime, to undergo the Pentonville experiment with the hope and
prospect of freedom after eighteen months in a foreign but congenial
clime, the "System" still remained, but without the conditions which
had contributed to its success in the first instance. It seems that in
fact the _penal_ and _deterrent_, rather than the _reformatory_ value,
came gradually to be regarded as its basis and justification. It was
applied to _all_ convicts, irrespective of age and antecedents. In 1853
the period was reduced from eighteen months to nine months. It appears
that the former period of eighteen months was the subject of severe
criticism and of great prejudice by those who formed their opinion on
rumours very prevalent at the beginning of the last century with regard
to the effect of the so-called "solitary" system as carried out in the
United States, with the accompaniments of darkness, absolute solitude,
absence of any employment, and unwholesome sanitary conditions. On
the other hand, an extensive experience had been gained in Local
Prisons, where cellular separation was already in force previously to
the Act of 1865, and had become in many Prisons the regular method of
executing a sentence of imprisonment up to two years. This strengthened
the position of those who argued that strict separation for eighteen
months could be carried out without disadvantageous results, on the
condition that prisoners were supplied with occupation and employment,
kept in physically healthy circumstances, and separated, not from all
other human beings, but only from each other. The nine months' period
seems to have been adopted as a sort of compromise with the prejudices
above referred to; and it had this further advantage--that by its
adoption, the expense of having to provide accommodation for _all_
convicts during separate confinement was greatly reduced, as twice the
number could be passed through this Stage under the limitation of nine
months. The penal or deterrent purpose of Separate Confinement for
convicts was, no doubt, greatly intensified by the Report of the Royal
Commission of 1868. That Commission reported as follows:--
"The separate confinement to which convicts sentenced to Penal
Servitude are, in the first instance, subjected, seems to be regarded
with great dislike by most of them, and especially by those who are
criminals by profession. It appears that owing to the want of room
in the prisons for separate confinement, and the demand for labour
on Public Works at Portland and Chatham, the period of separate
confinement, during the last year, has fallen so short of the nine
months prescribed by the regulations, that the average has been only
seven months and twenty days. Arrangements ought at once to be made for
remedying this. We are of opinion that convicts ought to be kept in
separate confinement for the full period of nine months, except in the
case of prisoners who are found unable to undergo it so long without
serious injury to their bodily or mental health. No considerations of
expense, whether connected with the necessity for additional buildings,
or with the loss of the labour of the convicts, ought to be allowed
to prevent this stage of punishment from being continued for the time
prescribed by the regulations. We think, too, that though separate
confinement, even under the present system, is, as has been said,
extremely distasteful to convicts, this wholesome effect on their minds
might be increased. It has been already mentioned that in Ireland the
diet is lower during the first four months, and that no work is given
to the prisoners for the first three months, except such as is of a
simple and monotonous character, in which they require little or no
instruction. This practice has been adopted because it has been found
that by far the greater number of convicts have no knowledge of any
trade, and when first taught one must necessarily be constantly visited
by their Instructor, whose visits tend to mitigate the irksomeness
of separate confinement. There appears to us to be much force in the
reasons which induced the Directors of the Irish Convict Prisons to
adopt these means for rendering separate Imprisonment more formidable,
and we therefore recommend that attempts should be made with due
caution to give a more deterrent character to separate Imprisonment in
the English Prisons."
The Report of the Directors for 1863 shows that steps were at once
taken to enforce rigidly this stage of punishment. Fixed wooden
beds were substituted for hammocks; the assembling of convicts for
education in classes was discontinued, and the cell doors, which had
been formerly opened after two months, were kept bolted during the
whole period of separate confinement. The Governor and Chaplain of
Millbank both reported that these changes had been attended with a
visible improvement in the bearing and demeanour of the prisoners.
The Directors stated that their object was to render this stage of
punishment as _deterrent_ as possible; to habituate convicts to habits
of order and obedience preparatory to their going on Public Works, and,
at the same time, to avail themselves of this opportunity to educate
by means of cellular instruction.
The great fall in the convict population which was taking place at this
time, and continued during succeeding years (the fall between 1854 and
1874 was from 15,000 to less than 9,000) led the Directors in 1873 to
attribute this remarkable decrease to the severe system which had been
established. They say:--"Whatever may be the causes which combine to
produce an increase or decrease of crime, this system of punishment
is certainly one of them, and the records of past Commissions of
Inquiry show that an increase of crime has generally been attributed
principally to defects in the Prison System. If punishment alone is not
to be relied on to diminish crime, it is certainly one of the means of
doing so, and it should be carried out so as to make imprisonment a
terror to evil-doers, as well as the means of bringing those subject to
it into better habits of mind by placing them under the influences to
which they would not ordinarily be subject."
The last expression of public opinion on the point is in the Report of
the Committee of 1895. It was recognized that the purpose served by
the System was to give a more deterrent character to the sentence of
Penal Servitude. The practice of serving this period in Local Prisons
was regarded with disfavour; and it was suggested that the severity
of the System might be mitigated by a substantial reduction in the
period of separation, and by the introduction of such reformatory
influences as were brought to bear on convicts at Pentonville under
the original system. Soon after that date, there was a reduction in
the period for "Star" Class and "Intermediates," _viz_:--three and
six months, respectively, but nine months still remained for men
in the "Recidivist" Class. In 1909 the whole question of separate
confinement again came under review, when it was agreed that a short
period of separate confinement was a proper preliminary of a sentence
of penal servitude, in the same way as it is of an ordinary sentence of
imprisonment with "hard labour." It was regarded that to send convicts
direct to Convict Prisons from the outer world, fresh from a criminal
and disorderly life, to associate with those whom discipline had
sobered, and, possibly, improved, would be fraught with evil; and that
there would be a constant introduction of newcomers from the outer
world with fresh news and incidents, causing general unrest in Convict
Prisons. It would give to the "old lag" what he most desires,--a
prompt renewal of association with his old companions, while to the
less criminal man it would be an intolerable suffering to be placed at
once in association at Public Works. After the fullest consideration,
the Commissioners advised that a change be made both in the duration
of the period of separate confinement for convicts, and in the method
of its execution. The Commissioners recognised that the difference of
the periods, three, six, and nine months served, respectively, by the
"Star," "Intermediate," and "Recidivist" Classes under the Rules then
in force, emphasized in a way which it might not be easy to defend,
the penal or deterrent effect of Separate Confinement. It was thought
simpler and more defensible to rest the Penal Servitude System on the
analogy furnished by the Local Prison Code, where a month's cellular
confinement precedes an ordinary sentence of Hard Labour, and that, by
analogy, three months' cellular confinement might be deemed a fitting
prelude to a sentence of Penal Servitude. Eventually, however, it
was decided that three months should be the period for "Recidivists"
only, and that the period for the convicts classed as "Star" and
"Intermediate" should be for one month, subject, of course, in every
case to medical advice, having regard to the convict's mental and
physical condition.
4. The Prison Act of 1898 effected far-reaching changes in the Convict
System. (_a_) It placed the control of Local and Convict Prisons under
one Board: (_b_) It gave power to the Secretary of State to make
Rules for the government of Convict and Local Prisons, subject to
Parliamentary sanction, so that henceforth the whole Prison Code has
Parliamentary sanction, and can be altered at any time by Parliamentary
rule without the necessity for fresh legislation: (_c_) A Board of
independent Visitors was established for every Convict Prison with
judicial powers analogous to those exercised by Visiting Committees of
Local Prisons: (_d_) Corporal punishment for offences against prison
discipline, which had hitherto been ordered by one of the Directors for
any serious offence, was limited by this Act to cases of gross personal
violence to an officer of the Prison, and to acts of mutiny. Such cases
are reported to the Board of Visitors and determined by them, subject
to confirmation by the Secretary of State. These provisions of the Act
of 1898 have been attended with remarkable success. Constant criticism,
which for many years had been directed against the System, has been
silenced. It is no longer contended that secret tribunals administer
unauthorized floggings, or that what goes on in Convict Prisons is
concealed from the light of day, without the opportunity of free and
independent inspection and inquiry. Floggings in Convict Prisons,
without any apparent effect on order or discipline, which, prior to
1896-7, averaged about thirty yearly, have gradually diminished, until,
for the past five years, the average has been less than two--and, at
the same time, offences against discipline amongst males have fallen,
only 21.7 per cent, last year incurring punishment, as compared with 31
per cent, in 1896-7. The whole character of the administration has been
largely affected by this important Act, and the gloom and the mystery
which was popularly supposed to envelope the Convict System has largely
disappeared, and greater public confidence in the administration has
taken its place.
Penal Servitude is the same in its essential features for men as for
women, except that the latter under the Progressive Stage System are
able to earn marks entitling them to a maximum remission of one-third,
and, in certain cases, are eligible to be sent to a Refuge under
conditional licence for the last nine months of their sentence. The
number of female convicts in the country has been steadily falling.
Since the Penal Servitude Act of 1864 the number received has decreased
from 468 in that year to an average of about 38 annually. Towards the
end of 1918, in view of the increasing number of young women committed
to the Borstal Institution at Aylesbury, the Convict Prison there was
closed, and a wing of Liverpool Prison has been temporarily set apart
for women sentenced to penal servitude.
The System pursued for rendering aid to discharged convicts, and the
means taken for their rehabilitation will be dealt with in a subsequent
Chapter.
CHAPTER V.
PREVENTIVE DETENTION.
Preventive Detention is the name given to a form of custody, provided
by the Prevention of Crime Act, 1908, for the protection of the
public from the Habitual Criminal. The Judge has the power of passing
a sentence of penal servitude for the particular crime charged in
the indictment, and to pass a _further_ sentence ordering, from the
determination of the sentence of penal servitude, that the prisoner
shall be detained for a period not exceeding ten years in Preventive
Detention. Such a sentence cannot be passed unless the jury finds on
evidence that the offender is an "Habitual Criminal", that is to say,
that since the age of 16 he has been at least three times previously
convicted of crime, and that he is persistently leading a dishonest or
criminal life. During the public inquiry into Prison administration
of 1894 the question had been raised whether a new form of sentence
should not be placed at the disposal of the judges for dealing with
persons convicted of "professional" crime. The word "professional" is
used in a technical sense to denote men whose Penal Records show that
they have lived systematically by thieving and robbery, and that their
acquisitive instincts have not been controlled by the fear and example
of punishment. It appears from a census of the convict population of
1901 that of the total convict population of 2,879, no less than 1,342
had been previously sentenced to penal servitude or to three or more
terms for serious crime involving sentences of six months and over. Of
these, no less than 1,213 were convicted of offences against property,
and it is interesting to observe that as we descend from the best to
the worst, there is a proportionate increase of crime against property,
until it can be almost said that the "professional" criminal as defined
constitutes a separate and peculiar class which demands a special and
peculiar treatment. As stated in the volume of Judicial Statistics for
1897, "It is a fact that has to be faced that neither penal servitude
nor imprisonment serves to deter this class of offender from returning
to crime. His crime is not due to special causes such as sudden
passion, drunkenness, or temporary distress, but to a settled intention
to gain a living by dishonesty." It was proposed in 1903 to set up
in Convict Prisons a "Habitual Offenders" Division, and that Courts,
when satisfied that a person convicted on indictment of an offence
punishable by penal servitude after more than two previous convictions
on indictment, was leading a persistently dishonest or criminal life,
and that it was expedient for the protection of the public that he
should be kept in detention for a term of years, should have power,
after passing a sentence of penal servitude for not less than seven
years, to order that he should pass a certain period of his sentence in
the Habitual Offenders' Division.
The object of the Bill was to make better provision for dealing with
persons who habitually lead a life of crime. In a Memorandum explaining
the Bill it was stated that "in the case of such persons, a sentence
of imprisonment has neither a deterrent nor a reformatory effect, and
in the interest of society, the only thing to be done with them is to
segregate them from society for a long period of time. It may not be
necessary, during that period of time, that their punishment should
be a severe one. All that is wanted is that they should be under
discipline and compulsorily segregated from the outside world. In the
case of a conviction for a small offence, _e.g._, stealing a pair of
boots, both judges and public opinion would be averse to the passing of
a long sentence of penal servitude, such as would be appropriate to a
grave crime, however notorious an evil liver the offender may be. The
new prison rules have created a new Division of long term convicts,
for whom the ordinary convict discipline will be greatly mitigated,
and this Bill authorizes judges to relegate habitual offenders, after
a brief period of punishment, to that Division, and thereby seeks to
encourage in appropriate cases the passing of long, as opposed to
severe, sentences." The project, however, did not pass into law, and
it was not till five years later, in 1908, that Parliament enacted
the very important Statute establishing a system of what is known as
"Preventive Detention," it being deemed expedient for the protection
of the public that where an offender is found by the Court to be a
habitual criminal, the Court should have power to pass a special
sentence ordering that, on the determination of sentence of penal
servitude, he may be detained for a period not exceeding ten nor less
than five years, under a system known as that of "Preventive Detention."
In laying before Parliament the Rules for carrying out the Act, the
Secretary of State, Mr. Churchill, stated:--
"Only the great need of society to be secured from professional or
dangerous criminals can justify the prolongation of the ordinary
sentences of penal servitude by the addition of such Preventive
Detention. It appears a matter of much importance that this should
be clearly understood, and that the idea should not grow up that
Preventive Detention affords a pleasant and easy asylum for persons
whose moral weakness or defective education has rendered them merely a
nuisance to society. The Secretary of State is satisfied that no case
has been established, either from the statistics of crime or otherwise,
for an increase in the general severity of the criminal code, and
certainly no increase of general severity was within the intention of
Lord Gladstone in proposing, or the House of Commons in passing, the
Prevention of Crime Act. On the contrary, it was intended to introduce
such mitigation into the conditions of convict life as would allow the
longer detention of those persons only who are professional criminals
engaged in the more serious forms of crime. This is indicated in the
Act by the fact that Preventive Detention cannot be imposed except for
a crime of such a character that it has justified the passing of a
sentence of penal servitude. It was, moreover, repeatedly stated by
Lord Gladstone in the course of the debates that the Bill was devised
for 'the advanced dangerous criminal,' for 'the persistent dangerous
criminal,' for 'the most hardened criminals': its object was 'to give
the State effective control over dangerous offenders': it was not
to be applied to persons who were 'a nuisance rather than a danger
to society,' or to the 'much larger class of those who were partly
vagrants, partly criminals, and who were to a large extent mentally
deficient.' On the 12th June 1908, he explained to the House of Commons
that the intention was to deal not with mere habituals but with
professionals: 'For sixty per cent the present system was sufficiently
deterrent, but for the professional class it was inadequate. There
was a distinction well known to criminologists between habituals and
professionals. Habituals were men who drop into crime from their
surroundings or physical disability, or mental deficiency, rather
than from any active intention to plunder their fellow creatures or
from being criminals for the sake of crime. The professionals were
the men with an object, sound in mind--so far as a criminal could be
sound in mind--and in body, competent, often highly skilled, and who
deliberately, with their eyes open, preferred a life of crime, and knew
all the tricks and turns and manœuvres necessary for that life. It was
with that class that the Bill would deal.' Although, therefore, the
term 'habitual' is used, it is clear that not all habituals but only
the professional class is aimed at by the Act, which not only restricts
the use of Preventive Detention to those already found deserving of
three years' penal servitude, but provides many safeguards against the
too easy use of the new form of punishment."
A new Prison for the reception of these cases has been constructed at
Camp Hill in the Isle of Wight, where it has been possible to secure
not only an admirable site, with sufficient ground for cultivation,
and for additional buildings, if necessary, but a locality which,
from the point of view of climate and salubrity, and opportunity for
agricultural work of a severe nature, is well adapted for the custody
and treatment of a new class of prisoner, for whom, in conformity
with the words of the Act, it has been necessary to devise a treatment
which, while subject generally to the law of penal servitude, shall
admit of such modification in the direction of a less rigorous
treatment as may be prescribed; while, at the same time, they shall be
subjected to such disciplinary and reformative influences, and shall
be employed on such work as may be best fitted to make them able and
willing to earn an honest livelihood on discharge. The rules made,
attempt to follow, with as much precision as possible, the prescription
of the Act, which, it will be recognized, does not admit of a simple
or easy solution. They have been framed generally with a view that,
consistently with discipline and safe custody, there should be a
considerable modification of the severer aspects of a sentence of
penal servitude. Promotion from the ordinary to the special grade is
earned by good conduct and industry, as in penal servitude, but certain
privileges, such as association at meals, and in the evenings, smoking,
newspapers and magazines, &c., can be earned, as well as a small wage,
not exceeding threepence a day, part of which can be expended on the
purchase of articles of comfort from the canteen. Special provision has
recently been made for the location in what are called "Parole lines,"
of such men as are, in the opinion of the authorities, qualifying for
conditional discharge. The rules permit a considerable relaxation of
discipline and supervision, so that each man may be tested as to his
fitness for re-entry into free life.
It would, perhaps, in any case, have been impossible to have given a
definite opinion on the value of the system until a longer period of
time had elapsed. Such a judgment is rendered more difficult by the
fact that the operation and effect of the System has been, of course,
greatly affected by the intervention of the Great War. However, reports
of the Central Association, to whose care these men are entrusted
after release on conditional licence, and the reports of the Advisory
Committee (an unpaid body unconnected with official administration
appointed by the Secretary of State, under the Act, to advise him when,
in their opinion, conditional liberation may be opportune without
danger to the community, and _with reasonable possibility of good
behaviour_), furnish material on which an estimate may be formed, both
as to the future working and the success of the system.
Since the Act came into operation on the 1st August 1909, 577 persons
have been sentenced to Preventive Detention. Of 389 cases released,
no fewer than 325, or 84 per cent., were considered sufficiently
promising to be released on licence, while of the remaining 64 who
served their whole sentence of Preventive Detention, many were mentally
or physically deficient. Of the 389 cases, the Central Association has
recently reported that no unsatisfactory report has been received in
the case of 210, or 54 per cent.
The singular success of the Central Association in dealing with these
cases on discharge, representing, as they do, the worst and most
dangerous class in the community, naturally suggests reflection as to
the comparative merits of the systems of licensing on discharge from
Penal Servitude and Preventive Detention, respectively. Under the Penal
Servitude system, a convict can, by industry and good conduct, reduce
his sentence by as much as one-fourth. On discharge he remains, during
the unexpired portion of his sentence, under a licence which compels
him to report his place of residence to the Police of the district,
and to notify them of his intention to remove, and of his arrival in
a new district, and to report to the Police once a month. A prisoner
under Preventive Detention remains in custody only until the Advisory
Committee are able to report that, if licensed, there is a reasonable
probability of his abstaining from crime; but he is licensed, not to
the Police Authorities, but to the Central Association--a voluntary
Association subsidized by the Government for the after-care of
convicts. The form of licence is quite different from that used on
discharge from Penal Servitude, and compels a man to proceed to an
approved place, not to move from that place without permission, to be
punctual and regular in attendance at work, and to lead a sober and
industrious life to the satisfaction of the Association. The Police
licence may be described as negative in character, _viz_:--it only
prescribes that a man shall abstain from crime. The licence to the
Central Association is positive, as prescribing that, under careful
and kindly shepherding and supervision, a man shall actually work where
work is found for him, and shall remain at work under the penalty of
report for failing to observe the conditions of licence. The difference
between the negative and positive forms of licence has been the subject
of much discussion in the United States of America, where the English
methods, as prescribed by the Penal Servitude Acts of last century,
have been ruled out of court by a strong public opinion, which insists
that for many of the crimes for which men are sentenced to Penal
Servitude, it is neither necessary nor reasonable to inflict a long
period of segregation under severe penal conditions. It is felt there,
as it is by many people in this country, that a comparatively short
period, followed by discharge on _positive_ licence, with liability to
forfeiture on relapse, would restore many men to normal conditions of
life before the habit of hard work had been blunted by imprisonment,
and family and other ties broken, and would save large sums of public
money now spent on imprisonment.
The application of the principle of Preventive Detention to our
Penal Servitude System would, of course, involve the question of the
Indeterminate Sentence. That opinion is hardening in the direction of
some such system in lieu of Penal Servitude is demonstrated by the
fact that at the last International Congress in Washington in 1910, a
resolution in favour of the Indeterminate Sentence, as a punishment for
grave crime, was carried unanimously by delegates representing most of
the countries of Europe and of the civilised world.
The successful working depends almost entirely on the capacity and
discretion of the Advisory Committee, appointed under Section 14(4)
of the Act of 1908, and what success has been attained is due to the
care taken by the Committee in the investigation of each individual
case, and in the suggestions offered to guide the Secretary of State
in deciding the question of conditional release. By the death of Sir
Edward Clayton, Chairman of this Committee since 1914, a great public
loss has been sustained. He devoted himself during the latter years
of his life with untiring energy to the duties of this office, for
which he was pre-eminently qualified by his long experience in prison
administration, as well as by largeness of view and understanding of
the criminal problem. From the elaborate Memorandum which he wrote
shortly before his death, it appears that his experience at Camp
Hill made him a strong advocate of the Indeterminate Sentence, and
he feared that the fixing of a definite limit, irrespective of a
man's reformation, may defeat eventually the intention of the Act.
The intention of the Act was, it will be remembered, primarily that
there should be no fixed limit of detention, but Parliament thought
otherwise, and the present limit of ten years, with a minimum of five,
was decided upon.
Sir Edward Clayton was succeeded by Mr. Arthur Andrews, J.P., as
Chairman of this Committee. Mr. Andrews has devoted himself for many
years with great zeal to the functions of the Committee over which
he now presides. He has lately reported to the effect that, in the
opinion of the Advisory Committee, after reviewing the history of the
Scheme since its inception in 1912, "it is an unqualified success."
They consider the Scheme, as now applied, "is highly satisfactory, and
productive of the best results; and that great credit is due to all
concerned in its administration. The reformative influence of Camp Hill
and the Parole Line System deserve commendation, and the fact that none
of the 175 prisoners who have been located in the Parole Line Cabins
made any attempt to break parole, and that it has only been necessary
to remove three for misconduct, testifies to the success of the plan
which provides a stepping-stone from imprisonment to liberty."
"The Committee also desire to make special reference to the work of
the Central Association, and to the excellent system of providing
employment and keeping in touch with the men under their supervision.
The success of the Preventive Detention Scheme is greatly due to the
exhaustive efforts of the officials of the Association."
On reviewing and comparing the figures afforded by the Central
Association's Reports, there can be little doubt that Preventive
Detention, as a supplement to our penal system, has, so far, yielded
much more favourable results than could have been originally expected.
The Committee recognise that the high proportion of successes is
probably, to a considerable extent, attributable to the war, inasmuch
as the Army provided a wide field of employment, and the labour market
offered almost unlimited work for both skilled and unskilled men.
As a result, many habitual criminals have renounced their criminal
tendencies in favour of honest work, and those who have joined the Army
are there the subjects of a disciplinary organisation which is probably
an important factor in their reformation.
There is, of course, an element of doubt as to whether all these men
would have abstained from crime in a normal environment, but the manner
in which they responded to their country's call indisputably proves
that in the worst of criminals there is a latent moral strain which can
be brought to the surface under favourable conditions; and, moreover,
the splendid example afforded by those who acquitted themselves so well
has probably a more far-reaching effect on their late fellow prisoners
at Camp Hill than is apparent.
These facts certainly justify the hope that a successful attempt
has been inaugurated for dealing with the problem of Habitual Crime
and of Recidivism. As an additional security that the great powers
vested in the judge may not be appealed to lightly, and without the
fullest consideration, the Act provides that the consent of the
Director of Public Prosecutions must be obtained before a charge
for dealing with a prisoner as an Habitual Criminal can be inserted
in the indictment. This is sufficient guarantee that the intention
of Parliament, _viz_:-that the somewhat drastic provision, by which
the offender guilty of a grave crime can, after expiating a sentence
of penal servitude for that offence, be deprived of his liberty for
another period of ten years in the general interest, and for the
protection of society, shall not be applied to persons who, as stated
in Mr. Churchill's Memorandum, are "a nuisance rather than a danger to
society, or to the much larger class of those who are partly vagrants,
partly criminals, or who are, to a large extent, mentally deficient."
In other words, it must be clearly understood that this defensive power
is not meant to be used as a protection against Recidivism in petty
offences. It does not touch that large army of habitual vagrants,
drunkards, or offenders against bye-laws and Police Regulations, who
figure so largely in the ordinary prison population. It is a weapon of
defence to be used only where there is a danger to the community from
a professed doer of anti-social acts being at large, and reverting
cynically on discharge from prison to a repetition of predatory action
or violent conduct. Used in this way, with caution, it is, I think,
an invaluable instrument for social defence. It has remained rusty
during the war, only 80 having been sentenced under the Act during the
last four years; but it remains ready for application in the event of
the recrudescence of grave habitual crime, and it is earnestly to be
desired that both Judicial and Police Authority may make use of the
great powers conferred upon them by the Act to relieve society, at
least for a time, of those who are its professed enemies. The Act also
applies to women, but only eleven have been sentenced to Preventive
Detention since the Act came into force, and at present there are none
in custody.
CHAPTER VI.
IMPRISONMENT.
Under the Common Law all gaols belonged to the King and by 5 Henry 4.
c. 10, it was enacted that none should be imprisoned by any justice
of the peace, but only in the "Common Gaol," saving the franchises of
those who have gaols. Except in special cases the gaols were under
the control of the sheriff, but the gaols which great noblemen and
bishops were allowed to maintain must have been governed by these
dignitaries, while the gaols which towns, liberties, or other bodies,
having no sheriffs, were empowered by charter or otherwise to keep,
must have been under the governing authorities of those bodies. By the
39th Eliz., another place of imprisonment was established for certain
classes of offenders, under the name of "House of Correction," and 7
James 1. c. 4, directs that, in every county, such a house should be
established, and means provided for setting rogues and idle persons
to work. These establishments were under the justices. The custom
gradually grew up of committing criminals of all classes to Houses of
Correction, and was legalized by 6 Geo. 1. c. 19 and 5 & 6 Will. 4. c.
38. s. 3, by which latter Act even sentence of death might be carried
out at these places; but debtors could still be committed only to the
Gaol and vagrants only to the House of Correction; and though it became
common to unite the two buildings under one roof, with one governing
staff, the two superior jurisdictions of the sheriff and the justices
over what was virtually one establishment were still maintained.
The title "House of Correction" was subsequently abolished by the
Prison Act, 1865, and since that date "Local Prison" has been the
official designation of the place of detention of persons sentenced
to imprisonment. A "Convict Prison" is a place of detention for a
person sentenced to penal servitude. There are fifty-six Local Prisons
in which sentences of imprisonment are served, (though 14 have been
temporarily closed during the war). They vary in size, from the large
Local Prisons in London, Manchester and Liverpool, with an average
population of 1,000 or more, to the small prisons in country districts
with a daily average of less than 100. By the Prison Act of 1877, the
entire management of these prisons was transferred from the various
local jurisdictions to the State, and the cost incidental to their
maintenance from the local rates to the Imperial Exchequer. They are
vested in the Secretary of State for the Home Department, and are
administered, subject to his approval, by a body of Commissioners
appointed by the Crown.
Although by Common Law imprisonment only involves deprivation of
liberty, yet by a series of statutes extending from the middle of
the eighteenth century to the present day, the nature and methods of
imprisonment have undergone successive modification. These I propose to
trace shortly, so that the present system of imprisonment, in its two
principal forms--"with," and "without hard labour"--may be understood.
There is probably no legal phrase so imperfectly understood, or which
in its application has been so embarrassing to the administration, or
which has to a greater extent misled the Courts of law in assigning
punishment, as the phrase "hard labour." By its comparison with the
French "_travaux forcés_" it has created an impression in foreign
countries that it is a very severe penalty, applied only for the
greatest crimes; at home it obscures the principle that in prison all
labour is hard, _i.e._, that all prisoners are punished with an equal
prescribed task, whether they be sentenced to imprisonment with or
without hard labour: and in penal servitude, where the manual labour is
of the hardest, the phrase has no legal existence.
The reform of the English Prison System originated towards the end
of the eighteenth century with the public exposure made by the great
Howard on the deplorable condition of our gaols, and his statue in St.
Paul's Cathedral fitly commemorates the gratitude of his country for
the services he rendered to humanity. The story of his life is well
known: how, being seized by a French privateer on his way to Lisbon
in 1755, he was thrown into a dungeon at Brest, and so had personal
experience of the horrors of imprisonment: how in 1773 the duties of
his office as High Sheriff of the County of Bedford led him to inquire
into the state of Prisons in England and Wales: how in 1774 he was
examined by the House of Commons on the subject, and had the honour of
receiving the thanks of that Body: how he devoted his later life to
the inspection of prisons at home and abroad until his celebrated work
on the "State of Prisons," published modestly at his own expense in a
provincial town, awakened the public conscience to all the horrors of
imprisonment; how, owing to his influence, not only statesmen, lawyers,
and philosophers, but all the uninstructed public opinion of the day,
now, for the first time, began to realize that the whole penal system
was a scandal and a disgrace.
The Prison Act of 1778 is the beginning of the English Prison
System. This measure, the result of the joint labours of Mr. Howard,
Sir William Blackstone, and Mr. Eden, was due, not only to the
newly-awakened interest in the treatment of prisoners, but to the
political necessity for making provision for keeping our prisoners at
home, which had resulted from the loss of the American Colonies. In
this Act the principle of separate confinement with labour, and of
religious and moral instruction, is clearly laid down and enforced.
In the year 1781, a further Act was passed, making it compulsory for
Justices to provide separate accommodation for all persons convicted
of felony who were committed for punishment with hard labour, it
being recited in the preamble to the Act that in the absence of such
provision "persons sentenced for correction frequently grow more
dissolute and abandoned during their continuance in such houses."
The principle of separate confinement having been thus recognized
by Parliament, the Justices of some Counties, including Sussex and
Gloucester, respectively, started the local prisons of Horsham,
Petworth, and Gloucester, on the separate plan, and they furnish
interesting historical record of the formal adoption in this country
of a system which, a few years later, under American influences, became
generalized throughout the civilized world.
The proposition of Mr. Jeremy Bentham for a new and less expensive mode
of employing and reforming convicts, by the construction of a large
establishment, called by him a "Panopticon," appears to have diverted
public attention from the real end and object of imprisonment; and this
proposition, being finally abandoned in 1810, led to the consideration
of fresh plans, which ended in a system of so-called "_Classification_"
as established in 1822, by the Act of 4th George IV., Cap. 64. Until
Mr. Crawford's visit to the United States, separate confinement, though
established in 1775, and only ceasing to be enforced when broken in
upon by numbers for whom the accommodation was insufficient, appears to
have been almost entirely lost sight of. An approximation to it existed
at Millbank since the completion of that Prison in 1821, and a fair
example of the system had been in operation at Glasgow since the year
1824. It is very doubtful, however, after the enormous expenditure made
to effect classification, whether these traces of the system would have
rescued it from oblivion without the aid derived from its practical
development in the United States, and the concurrent testimony given in
its favour by eminent men in France, Prussia, and Belgium.
By some curious growth of sentiment, which cannot be accurately
traced, _Classification_ rather than _Separation_, became the leading
idea of those interested in prison reform. Howard was quoted as the
authority for Classification, but it must be remembered that Howard
was chiefly moved by the physical suffering of prisoners, and, with
him, classification did not mean much more than to separate the debtor
from the felon, the guilty from the innocent, the men from the women,
and the adult from the child,--and this by a system of separate
confinement described in the Act of 1778. The classification in the
sense in which it affected the movement of opinion in the first quarter
of the last century went further than this. It seems to have assumed
that if prisoners in the same categories, and, therefore, presumably
of more or less the same moral characters, were associated together
in common rooms or dormitories, no evil results were likely to follow,
and facilities for labour, according to Bentham's ideas, would be
greatly improved; and thus we find that in 1823, the Act of 4 Geo.
IV., c. 64, in so far as discipline is concerned, gave effect mainly
to this principle. Many extensive and important prisons were erected
in conformity with this Act, notably at Maidstone, Derby, Westminster,
Chelmsford, and Leicester, in which the Governor's house was usually
placed in the centre with detached blocks of cells radiating from it.
The average size of the cells was only about eight feet by five feet,
with a day room and yard of proportionate size for each different
class or category of prisoners. The only inspection was from the
central building, and there was no interference with the unrestricted
association of prisoners, and the greatest neglect, disorder, or
irregularities might go on unperceived; and it soon became manifest
that, to whatever extent classification might be carried, there was
no moral standard by which it could be regulated, nor any limit short
of individual separation that could secure any single prisoner from
contamination. The mischievous effect of this Act was soon condemned
by public opinion, and two Parliamentary inquiries were held in 1832
and 1836, which concurred in the strong opinion that more efficient
regulation should be established in order to save all prisoners,
especially the untried, from the frightful contamination resulting
from unrestricted intercourse. It was at this time that the great
controversy between the so-called "Silent" and "Separate" Systems
sprang up in the United States, and its echo was felt throughout the
civilized world. The rival systems of Auburn and of Philadelphia became
the historic battleground in which was fought out the great and burning
controversy which centred round the question of the proper treatment of
prisoners, and established the importance of the now accepted principle
that prison discipline shall be reformatory at least to this extent,
_viz_:--that the prisoner shall not be exposed to contamination by his
fellows. The Silent System at Auburn meant a separate cell at night,
and work in association by day under a Rule of Silence. The Separate
System at Philadelphia meant entire separation both by night and day.
The criticism on the former was that the Rule of Silence could only be
maintained by harshness and severity, and the criticism of the latter
was that continuous separation for long periods was unnatural and
bad, both for body and mind. Mr. Crawford, one of the newly-created
Inspectors under an Act of 1835, was sent to America to examine and
report upon the rival Systems. MM. De Beaumont and De Tocqueville
went from France; Dr. Julius and M. Mittermeyer from Prussia; and M.
Ducpetiaux from Belgium. All travelled at the same time through the
United States for the same purpose, and their practically unanimous
views in favour of the principle of separate confinement had a great
effect on public opinion throughout Europe. In England, Lord John
Russell, then Home Secretary, issued a circular to Magistrates calling
attention to its advantages, and in 1839 an important Act was passed
containing a permissive Clause to render it legal to adopt the separate
confinement of prisoners. It was, however, an express condition that
no cell should be used for such purpose "which was not certified to
be of such a size, and ventilated, warmed, and fitted up in such a
manner as might be required by a due regard to health." Also that a
prisoner should be furnished with the means of religious and moral
instruction, with "books and labour or employment." These were the
first substantial steps taken in England since 1775 for establishing
separate confinement. No prison in Great Britain, excepting perhaps
that at Glasgow, was of a construction to enable magistrates to take
advantage of the clause referred to. Lord John Russell, therefore,
determined on the erection of a model prison at Pentonville.
It was completed in 1842, and a strong body of Commissioners was
appointed by the Secretary of State to work out the great experiment.
The Commissioners, in their Report for 1847, gave it as their final and
deliberate opinion that the separation of one prisoner from another
was the only sound basis upon which a reformatory discipline could be
established with any reasonable hope of success. The satisfactory
progress of the experiment, and the confidence of the public in the
Commissioners, under whose superintendence the experiment had been
conducted, led to a general desire for its adoption throughout the
country, and within a very few years many Prisons which had been
recently erected for a Classification System were altered.
In 1850, a Select Committee of the House of Commons, presided over
by Sir George Grey, the then Home Secretary, expressed the opinion
that, under proper regulation and control, separate confinement is
more efficient than any other system which has yet been tried, both in
deterring from crime and in promoting reformation, but that it should
not be enforced for a longer period than twelve months; and that hard
labour is not incompatible with individual separation.
The student of the English Prison System must be careful to bear in
mind at this juncture that the Secretary of State was not, as he
now is, the supreme head of all Prisons in the country. He only had
control over prisons where persons sentenced to Transportation might
be confined. Pentonville, therefore, was not a local prison to which
prisoners of the Metropolis would be committed in the ordinary course,
but was specially built in order that an experiment of the System of
Separate Confinement might be made by the authority of the Government
under the best possible direction and superintendence. The corpus on
which this experiment was made were first offenders between eighteen
and thirty-five sentenced to Transportation, for whom a period, not
to be prolonged beyond eighteen months, should be one of instruction
and probation, rather than of severe punishment before the convict
was shipped to Van Diemen's Land. Everything was done to render the
separation real and complete: exercise was taken in separate yards, and
masks were worn to prevent recognition. While primarily the Pentonville
system was applied to convicts only, and became in fact the basis of
our penal servitude system, as explained in the former chapter, yet it
led indirectly to the establishment of the separate system in Local
Prisons throughout the country. Although the Secretary of State had
no control over the administration of Local Prisons, yet, apart from
the influence which the Secretary of State would naturally exercise
in directing public opinion in such a matter, an Act of 1835 had
made provision that all Rules framed by local Justices for Prisons
should be subject to his approval; and the Act of 1844 authorised the
appointment of a Surveyor General of Prisons to aid the Secretary of
State by ensuring that due attention was given by local Authorities to
the requirements of proper prison construction as prescribed by Act of
Parliament.
Thus the Separate System became gradually established throughout the
country, both for convicts in the early stage of their imprisonment,
and for those committed to the County and Borough Gaols, although
uniformity was very far from being established owing to the absence of
any central control. It was this absence of uniformity which led later,
as we shall see, to the complete centralization of the Prison System,
which was effected finally by the Prison Act, 1877.
At the same time, two principal features of our prison system--Separate
Confinement and Hard Labour--began to assume a definite shape at
this period, which has been retained, subject to modification, until
the present day. The duration of the period of Separate Confinement,
and the regulation of the task of hard labour, consistently with
cellular confinement, remained the problem of prison administration
for many years, and cannot yet be said to be finally settled. There
will be found running through all this period an earnest attempt to
reconcile the claims of the two admitted objects of imprisonment,
_viz_:--deterrence and reform. On the one hand there was strict
separation, and on the other hand it was ordained that provision
should be made in every prison for enforcing sentences of hard labour
as enjoined by the Act of 1823, although that Act, as already stated,
did not contemplate separate confinement, but a system of associated
labour, and the word "Hard Labour" only assumed its narrow and
technical meaning when the advocates of the Separate System, as the
means of reformation, were unwilling altogether to lose sight of the
necessity for some deterrence in the shape of hard work. The question
thus arose, and was warmly agitated, as to how hard labour could be
adapted to the cellular system, and we find great ingenuity expended
in devising forms of labour, such as cranks and treadwheels, in which
each prisoner occupied a separate compartment. These particular forms
of labour were recognized as "hard labour" _par excellence_, and as
necessary for the due punishment of the offender, consistently with his
occupation of a separate cell by day and night. With these problems
unsettled: with a strange and general ignorance of the true principles
of punishment: with conflicting views and diverse authorities, it is
not to be wondered at that, during the following years, our Local
Prison System was in a very confused and chaotic state, although
nominally professing adhesion to prescribed principles, until inquiry
made by Committees of the House of Commons and House of Lords,
respectively, into the state of Local Prisons, in 1850 and 1863, led
practically to the modern Prison System.
The Committee of 1850 condemned the state of existing prisons in
unmeasured terms, declaring "that proper punishment, separation, or
reformation was impossible in them." They anticipated by a quarter of
a century the legislation of 1877 by advising the establishment of a
Central Authority for enforcing uniformity on the lines of Rules laid
down by Parliament. They advised that the Separate System, as carried
out at Pentonville, should be generally applied to all prisons, but
not for a longer period than twelve months. No action was taken on
this Report until, in 1863, a Committee of the House of Lords again
condemned the want of uniformity of punishment and treatment of
prisoners, and the bad construction of prisons. They again urged that
separation should be the rule in all prisons, and strongly advocated
greater severity as a means of making punishment really deterrent,
and their proposition that prisoners should endure "hard labour, hard
fare, and a hard bed," has become historical, and was translated into
practice by the Prison Act, 1865, which, for the first time, gave legal
sanction to the principle of uniformity, by enacting a code of Rules as
a schedule to the Act. These Rules, having statutory authority, were
only capable of alteration or repeal by Parliament itself. The great
rigidity thus given to the System remained a barrier to real progress,
and it was not until 1898, as I shall show later, that an elasticity
was given to the System by the repeal of this schedule, by vesting in
the Secretary of State the power to make Rules for the government of
Prisons, subject to the condition that the new Rules should be laid
formally before Parliament before they could be adopted.
However, the Act of 1865 was a great step forward. Prisons still
remained under the control of the local Justices, but every prison
authority was required to provide separate cells for all the different
classes of prisoners. These cells were to be such as could be certified
by an Inspector of Prisons that they satisfied all the requirements of
the Rules. Elaborate provisions were introduced for regulating "Hard
Labour," (a phrase carried on from early Acts of Parliament, framed
before the days of scientific accuracy). It was divided into two
classes: (1) the treadwheel, shot-drill, crank, capstan, stonebreaking,
&c. (2) any other approved form of labour. All prisoners over sixteen
were required to be kept to first class labour for at least three
months, after which time they would qualify for the second class.
Dietaries were to be framed by the Justices, and approved by the
Secretary of State, and any Rule they might make was to be subject
to the approval of the Secretary of State. If they failed to comply
with the Act, the Secretary of State was able to stop the Treasury
contribution towards expenses of the Prison. It was also authorised,
for the first time, that a prison authority might make a grant in aid
of prisoners on discharge. The Schedule to the Act comprises details of
the Rules regulating the administration of the Act on matters of Prison
treatment. The power of punishment was restricted to Justices and the
Governor of the Prison, the latter having power to order an offender
to be placed in close confinement for three days on bread and water;
the former could order one month in a punishment cell, or, in the case
of a convicted felon sentenced to hard labour, could order flogging.
Regulations were also made for the use of irons or other forms of
mechanical restraint. The important principle was enacted, which has
since remained in force, _viz_:--that no prisoner may be employed in
the discipline of the prison, or the service of any officer, or in the
service or instruction of any other prisoner.
Many years had not passed before it was perceived that the uniformity
of punishment at which the Act aimed was not being secured. It began
to be perceived, and most quickly by the criminal classes themselves,
that in the different localities the same effect was not being given to
the same sentence. Distribution of power among so many Justices--some
2,000 in all--gave occasion to the exercise by them of different
views and methods of punishment, with the result that no standard of
treatment was maintained, applying equally to all prisons, and severity
or leniency of treatment seemed to depend on the accident of the
locality in which the offender was arrested. Inquiry showed, also, that
the System, besides being inefficient, was extremely costly, and many
unnecessary prisons were being maintained, and that local sentiment
operated against any effective supervision or control on the part of
the Central Authority. These causes, taken in conjunction with an
active demand, which found expression in Parliament at the time for
the relief of some of the burden of local taxation, led the Government
of the day to adopt a policy of complete centralization of the Prison
System of the country. This new policy, as embodied in the Prison Act,
1877, resulted then from two causes,--a desire to establish a system of
equal and uniform punishment under the direct authority of the State,
and, incidentally, to relieve the taxpayer of the burden of maintaining
Prisons. It was not to be expected that the local Authorities,
naturally jealous of their rights and privileges, would abandon the
control of the Prison System without a severe struggle. But the great
relief offered to local rates, amounting to about half-a-million pounds
per year, was sufficient to overcome opposition. Eventually, the Act
transferred the whole of the Prison establishments, and their contents,
to the control of the Government. It created a body of Commissioners,
appointed by Royal Warrant, to manage the new Department, and placed
under them a staff of Inspectors, and of other officers, by whom the
control of all those establishments was to be exercised. The Act
compelled the local authority to hand over to the Government suitable
and sufficient accommodation in each district, the test of sufficiency
being the average daily number of prisoners maintained by the local
authority during the five previous years. Where such accommodation was
in default, the local prison authority was required to pay £120 for
every prisoner for whom such accommodation was not handed over. At
the same time, compensation was paid by the Government to the local
authority which had provided a reasonable amount of accommodation in
excess of the maximum of the average numbers received for the five
preceding years.
Although the Justices lost their administrative powers, they remain
in the shape of the "Visiting Committee," a body selected from the
local Magistracy, as the judicial authority of Local Prisons, for
hearing and determining reports against prisoners, and for the award
of punishment. They also have large general powers of advice and
suggestion; and the admitted success of the policy of centralization
has been undoubtedly due to the wise compromise which continued the
interest and concern of the local Magistracy in their local prisons;
and which ensured not only just and patient hearing of reports against
prisoners, but permitted reports on any abuses within the prison,
and on complaints made by prisoners, by an independent judicial and
unpaid body; and provided, at the same time, a tribunal to which the
Secretary of State could always refer with confidence any question that
might arise as between prisoners and the State. In certain respects,
however, the judicial powers of the local magistrates were curtailed,
_e.g._, powers of ordering confinement in a punishment cell were
reduced from twenty-eight to fourteen days, and the award of corporal
punishment was made dependent on the concurrence of two magistrates.
In other respects, the tendency of the Act was towards a greater
humanity of treatment. The rigid provisions of the Act of 1865 as to
the enforcement of first class hard labour were modified. Under that
Act, it was enforced for the whole of a sentence of three months, or
even for an entire sentence, however long. Under the Act of 1877, the
compulsory period was limited to one month. Another notable feature of
the Act was the classification of prisoners into two divisions, one of
which was that any person convicted of misdemeanour and sentenced to
imprisonment without hard labour, might be ordered to be treated as a
misdemeanant of the First Division, and, as such, was not deemed to be
a criminal prisoner. Persons convicted of sedition or seditious libel,
or imprisoned under any rule, order, or attachment, or for contempt of
any Court, were to be placed in the First Division.
It is difficult to say whether the legislature intended this
division, which, on the face of it, was a bold step in the way of
differentiation, to be more than a reservation in favour of a few
exceptional cases, such as are actually mentioned in the Act. The
presumption is, having regard to the fact that prisoners treated as
First Class Misdemeanants were not to be deemed criminal prisoners,
that there was no intention to anticipate an elaborate classification,
such as is now laid down, and that it was not realized what a vast
importance rested in Classification, strictly so-called, and which
finds its expression in the Prison Act, 1898. The powers given to the
Secretary of State to make Rules under the Act of 1877 extended to such
important matters as the treatment of prisoners awaiting trial, and of
debtors; and the Rules then made, although modified in some details,
remain essentially the same to-day. The principle of governing prisons
by Rule made by the Secretary of State, subject to Parliamentary
sanction, was still further developed in the Act of 1898, and may be
said now to have been finally accepted as a wise and effective method
for securing progressive change and reform without the necessity for
revoking or enacting by the machinery of an Act of Parliament.
The Commissioners appointed under the Act took over their new duties on
the 1st April, 1878. On that day, thirty-eight out of the 113 existing
Prisons were closed. Sir Edmund Du Cane, the Chairman of the new Board
of Commissioners, had been for some time Chairman of the Board of
Directors administering Convict Prisons, and his influence soon became
predominant till his retirement in 1895. His great administrative
powers were devoted to securing the objects which, in his opinion, the
Prison Act, 1877, intended to secure, _viz_:--(1) the application to
all Prisons of a uniform system of punishment: (2) the best possible
method for carrying out the primary object of punishment, _viz_:--the
repression of crime: and (3) economy in expense.
As to (1), uniformity was secured by the adoption, as in the Convict
Prisons, of a Progressive Stage System: by the adoption of a uniform
and scientific dietary: a uniform system of education: a uniform system
of first class hard labour by means of the treadwheel, the task for
which was regulated by the most minute instructions as _the_ task for
hard labour in Prisons.
As to (2) it has since been made a charge against the administration
of these days that it erred on the side of a too severe repression. To
those who have lost their faith in the virtues of the cellular system,
it may seem unduly rigorous that a prisoner should have remained
subject to that system during the whole length of his sentence.
There were, of course, exceptions to the general rule, _e.g._,
persons employed in the service of the prison, and other forms of
extra-cellular labour, but separate confinement remained the rule for
Local Prisons. To those, also, who condemn all forms of mechanical and
unproductive labour, it may seem unduly rigorous to have insisted so
minutely on the exact performance of a task of so-called first class
hard labour. It is doubtful if public sentiment at that time would
have been satisfied with the comparative leniency of the modern prison
régime. The result of the earnest thought and discussion which have
taken place through the civilized world during the last quarter of a
century on all matters affecting the welfare of the prisoner has been,
no doubt, to place his punishment on a more rational basis than that
of mere obedience to mechanical and uninteresting forms of labour. The
State until now had had no experience in dealing with short sentences.
The problem to be solved was a new one, _viz_:--how to deal effectively
with a man who was in prison for only a few days or weeks, and to
whom during that time no useful trade could be taught. It is indeed
a problem which may well vex the brains of the wisest, and if the
solution has not yet been found, we have at least got beyond the stage
where it was thought sufficient, by the invention of fantastic devices
for executing sentences of so-called hard labour, to give expression to
a sentence of imprisonment. The Prison Authority of this day perhaps
erred in regarding it as a part of their duty to add to the penalty
prescribed by the Court by imposing, in the name of the Progressive
Stage System, certain penalties and incapacities as a peculiar feature
of the early Stages. The only precedent for dealing with short
sentences was that afforded by Military Prisons. It is well-known that
the Committee on Military Prisons of 1844, which was in favour of hard
penal treatment--shot-drill, cranks, &c., (in use in military prisons
as a punishment for recalcitrant soldiers) exercised a considerable
influence with local authorities in administering Civil Prisons, and
the reproach, so often directed to the Local Prison System, that it was
too military in its character, was probably due to this source.
(3) With regard to economy, Sir E. Du Cane was formerly a distinguished
officer of the Royal Engineers, and had been engaged for many years
in advising the Secretary of State as Surveyor-General of Prisons. It
was owing to his experience and capacity that, at a relatively small
cost, the prison buildings soon after the Act were brought up to a high
standard, both in construction and in sanitation. His financial ability
was also of a high order, and economy, consistently with efficiency,
became the order of the day. It may be that in some respects his desire
for economy led him too far in the direction of retrenchment, both
in buildings and in service, but, for the time being, he was justly
credited with great administrative and financial success; and it
appears from a table prepared in 1885, comparing expenditure on Local
Prisons for seven years before and after the Act of 1877, that economy
had been achieved amounting to nearly half-a-million of money. Further,
in that same year, 1885, the prison population touched and continued
at a lower level than had been previously known. For the year 1878,
in which the Prisons were handed over to the Government, the Local
Prison population was the highest known, _viz_:--21,030. From that date
it fell almost continuously till February 1885, when it touched the
lowest figure then known, _viz_:--15,484. There had been, moreover, a
decrease in the yearly death rate, in the number of suicides, and in
corporal punishments, and in the yearly average of dietary punishments.
A greater variety of employment had been introduced, and a new uniform
system of accounts had been established. The Chairman had some
justification, therefore, for inferring from these facts and figures
that not only had the new penal system been made effective for the
repression of crime, but that the legislation of 1877 had completely
succeeded in its object in promoting uniformity, economy, and a
generally improved administration.
CHAPTER VII.
THE INQUIRY OF 1894: THE PRISON ACT, 1898: AND THE CRIMINAL JUSTICE
ADMINISTRATION ACT, 1914.
Criticism, however, was not silent. There was an uneasy feeling in the
public mind that too much importance had been attached to the principle
of "uniformity," which was held to be responsible for the alleged evils
of the system then in force, _i.e._, the want of "individualisation" of
the prisoner, and the stifling of local control. This feeling found an
echo in the Press; not only were the principles of prison treatment,
as prescribed by the Prison Acts, criticised, but the prison authority
itself, and the constitution of that authority, were held to be
responsible for many grave evils. It was contended that centralization
only fostered bureaucracy, and that the Prison System of the Country
was at the mercy of a single bureaucrat, the Chairman of the Prison
Board. It was impossible for the Government of the day to ignore
this fierce indictment. A Committee of Inquiry was appointed, under
the Chairmanship of Mr. H. Gladstone, M.P., then Parliamentary Under
Secretary for Home Affairs. The Report was published in April, 1895,
just at the time that Sir E. Du Cane was retiring from the Service, he
having attained the age of sixty-five, the age for retirement under the
Superannuation Acts. The Report, resulting from a keen and exhaustive
inquiry into every branch of prison administration, marks a distinct
epoch in the Prison history of this country. It paid a high tribute
of praise to the Prison Commissioners and their late Chairman, by
its formal declaration that the centralization of authority had been
a complete success in the direction of uniformity, discipline, and
economy. But while admitting this, and the attention that had been
given to organization, finance, order, sanitation, and statistics, it
gave some justification for the popular belief that centralization
had been carried too far, and that local interest and authority had
been unduly suppressed; and to use the words of the Report (which
constitute the real gravamen of charge against the prison authority)
"that prisoners have been treated too much as a hopeless or worthless
element of the community, and that the moral as well as the legal
responsibility of the prison authorities has been held to cease when
they pass outside the prison gates." These words may be said to mark
the passage from the old to the new methods of punishment, and from
those which rested upon severity and repression to those which looked
more hopefully towards the possible reformation of persons committed to
prison.
The decrease of crime, _i.e._, as judged from the reduced daily average
population of persons in prison, which had been habitually quoted
and regarded as the correct test of a successful prison system, was
shown on examination to be due almost entirely to a diminution in the
average length of sentences. This fact, _i.e._, a greater leniency
on the part of Magistrates and Judges, taken in conjunction with the
remarkable outburst of public sentiment, to which I have referred,
undoubtedly connote a gradual rise and growth throughout the community
of a tendency towards a larger humanity in the treatment of crime,
and a more rational execution of the sentences of the law. Hope of
rehabilitation, which had perhaps been made too subordinate to the
desire for a firm and exact repression, began to lift its head, and,
from this time, the responsibility of the official authority, as a
reclaiming agency, became greatly accentuated.
The new spirit which breathes in this Report, and which has largely
influenced subsequent legislation and practice, is to be found, so far
as Local Prisons are concerned, principally in reforms having for their
purpose:--
(1) the concentration of effort on the young or incipient criminal,
16-21.
(2) improved classification, and the separation of first from other
offenders in Local Prisons.
(3) the abolition of the old forms of "hard labour"--
cranks, treadwheels &c. The rules provide that the labour of all
prisoners shall, if possible, be productive, and the only difference,
so far as labour is concerned, between a sentence with, and without,
hard labour, is that in the former case a prisoner works in cellular
separation for the first twenty-eight days of his sentence, after which
period he may work with the rest in association in workrooms, or other
open spaces. So long as the Statute preserves the distinction between
imprisonment with, or without, hard labour, it is necessary that the
system should give effect to the distinction, but the meaning which has
been so long associated with the phrase "hard labour" still lingers
in the public mind, which even now is apt to imagine that a sentence
of hard labour implies a long period of solitary confinement with
employment throughout the sentence on hard monotonous forms of labour,
such as cranks and treadwheels. Associated labour on productive work is
now the rule of Local Prisons, subject to the exception above stated.
(4) the reorganization of "_Patronage_" or Aid-on-discharge.
(5) improved methods for the education and moral betterment of
prisoners.
(6) the establishment of Training Schools for all ranks of the Prison
Staff.
(7) improved Prison Dietary.
(8) improved medical treatment with special regard to weakminded and
tuberculous cases.
(9) the reconstruction of prisons, with a view to better sanitation,
and provision of workshops for associated labour.
It was at this time that the present writer succeeded Sir E. Du Cane
as Chairman of the Prison Commission, and the Secretary of State
(Mr. Asquith) in conferring this appointment upon him, expressed
the strong desire of the Government that the views of the Committee
should, as far as practicable, be carried into execution. Since that
date, accordingly, the reform and reorganization of the Prison System
has been proceeding in every Department. The steps taken will be
found in detail in the Annual Reports of the Commissioners since that
date. It is not necessary to recapitulate here all the Departmental
changes that have taken place, although they are very extensive and
far-reaching.
So far as legislation is concerned, three Acts of great importance have
been passed--the Prison Act, 1898, the Prevention of Crime Act, 1908,
and the Criminal Justice Administration Act, 1914.
The principal changes effected by the Prison Act, 1898, were, firstly
the power given to the Secretary of State to make Rules for the
Government of Convict and Local Prisons. The Rules embodied in the
Schedule to the Prison Act, 1865, and enforced by Statute, were
repealed, and what was, in effect, a new Prison Code was established,
regulating every detail of administration in Local and Convict Prisons,
subject only to the sanction of Parliament, and liable to alteration,
from time to time, by Parliamentary Rules. Until now, the Rules of
Prisons had been in a confused and chaotic state; some were fixed
rigidly by Statute, others were framed without Parliamentary authority
by the Secretary of State, others were enacted only by Standing
Order,--all these were consolidated and embraced in a single Code,
and their execution regulated by a new set of Standing Orders. Rules,
with the Standing Orders which interpret them, are now the authority
and foundation for the Government of Local and Convict Prisons. Not
only has a greater simplicity of administration been attained, but,
at the same time, a greater elasticity has been given to the System,
which was sadly in need of it. It is not likely that it will again be
necessary to resort to legislation in order to effect any change in
the details of the System, the Secretary of State now having power,
by Parliamentary Rule, to introduce such alterations as time and
experience may dictate.
Secondly,--The Prison Act, 1898, created a Triple Division of
offenders, power being given to the Courts to direct the treatment
in one or other of the Divisions, having regard to the nature of the
offence, and the character and antecedents of the offender. It will
be remembered that the Act of 1877 had not gone further in the way
of Classification than the establishment of the Division known as
First Class Misdemeanants. This provision was repealed, and under
the new law Courts have, generally speaking, an absolute discretion
as to the Division in which any convicted prisoner shall be placed.
The Rules regulating the treatment of each Division are, of course,
subject to Parliamentary sanction. It was hoped, at the time, that
the Courts would gladly and readily avail themselves of these new and
enlarged powers, although it is recognized that a great responsibility
is thus imposed upon the Courts, whose duty, if strictly fulfilled,
would be to discriminate in each case brought before it, and to order
treatment according to character and antecedents. In this way, it was
hoped to secure that "_individualisation de la peine_", which modern
penitentiary science declares to be the ideal at which a good penal
system should aim. Courts have not, however, shown a keen desire to
exercise this fresh power to the extent contemplated by the Act, the
number committed to the Second Division representing not much more than
an average of about three per cent of the total eligible committals.
The traditional methods of commitment to ordinary imprisonment,
with, or without Hard Labour, have so deeply affected the criminal
administration of Summary Courts that it has proved difficult to escape
from their influence, in spite of the great power of discrimination
which the Act affords.
Thirdly,--Another very important provision of the Act was the power
given to enable a prisoner sentenced to imprisonment in default of fine
to obtain his release on part-payment of the fine. Thus, in the case of
a prisoner sentenced to pay a fine--say of ten shillings or two weeks'
imprisonment in default--imprisonment could be reduced by a number of
days bearing the same proportion to the length of his sentence as the
sum paid by him bears to the total fine imposed. The object of this
provision was, of course, to modify, though it could not abolish, the
admitted evil of the system under which about half the population of
Local Prisons is composed of persons not directly committed without the
option of a fine for the graver offences, but sentenced to pay perhaps
small fines for trivial offences. These, on their inability to pay,
became subject to the ordinary pains and penalties of imprisonment as
in the case of ordinary criminal prisoners. Although the principle
established under the Act was largely made use of, and thus a
considerable reduction has taken place in the number of days for which
persons sentenced in default of fine remained in Prison, the system of
imprisonment in default continued in vogue, and was responsible for
some fifty per cent. of the Prison population until action was taken by
Parliament in the Session of 1914, since when a great change has taken
place in this respect. The Criminal Justice Administration Act, 1914,
to which I refer later, in addition to many other valuable provisions
regulating the treatment of crime, is specially directed to meet this
evil.
The Prison Act, 1898, has also been of historical interest as being the
last deliberate decision of the legislature on the vexed question of
Corporal Punishment in Prisons. Previously to the Act, a sentence of
Corporal Punishment could be awarded in Convict Prisons by one of the
Directors, and in Local Prisons by the Visiting Magistrates for any
serious offence against prison discipline, and subject to no confirming
authority. It is now strictly limited as a penalty for gross personal
violence to prison officers, and for mutiny, or incitement to mutiny,
and then only in the case of prisoners convicted of felony or sentenced
to hard labour. A sentence can only be imposed by a tribunal consisting
of not less than three persons, two of whom must be Justices of the
Peace, and the order for corporal punishment from such tribunal cannot
be carried into effect until confirmed by the Secretary of State, to
whom a copy of the notes of evidence and a report of the sentence, and
of the grounds on which it was passed, must be furnished. Experience
has justified the wisdom of this enactment, which affords a sufficient
guarantee against excessive, or unnecessary, exercise of the powers
of corporal punishment. It has not been found that the discipline of
prisons has suffered, while a due security exists for the protection of
prison officers from violence. Public sentiment, which had previously
been uneasy on the question of flogging in Prisons, has accepted the
present limitation of power as a just and reasonable solution for
what has always been a very vexed and difficult question of prison
administration.
Again, a change of far-reaching importance in its effect on the
discipline and management of Local Prisons was introduced, _viz_:--the
power given to short-term prisoners to earn remission of their sentence
by special industry and good conduct. Prisoners whose sentence is for
over one month are now able to earn remission of a portion of their
imprisonment not exceeding one-sixth of the whole sentence. The power
to earn remission has always existed in the case of persons sentenced
to penal servitude, where the minimum sentence is three years, and its
great value, both as an incentive to industry and good conduct, and as
furnishing an element of hope and encouragement under long sentences,
has always been recognized. The expectation that the translation of
this privilege to the Local Prison System would operate in the same way
has been justified by experience.
Hitherto, the stimulus to industry and good conduct in Local Prisons
had consisted only of the privileges that could be earned under the
Progressive Stage System, in the shape of more letters and visits, and
more library books, and larger gratuity. Gratuity, however, did not
exceed the sum of ten shillings, whatever the length of sentence. It
was, therefore, only prisoners under the longer sentences, presumably
those guilty of grave offences, that could benefit to any extent under
the Gratuity System--some twenty per cent. of the whole. Moreover, the
risk or fear of losing remission marks operates as a powerful deterrent
against idleness or misconduct, and it has been found, generally,
that under the influence of this salutary provision there has been a
marked improvement in the tone and demeanour of the prisoners, while,
at the same time, an aid has been furnished to those responsible for
maintaining order and discipline.
Such, broadly, were the changes introduced by the Prison Act, 1898.
Though a short Act of a few Sections, it has profoundly affected the
whole of the Prison administration. It seems to have been accepted by
public opinion as a reasonable solution of many difficult questions
which had been the subject of criticism, and which led to the outcry
against the policy of the administration which had followed the Prison
Act, 1877.
Ten years passed before further legislation respecting Prisons was
passed. The Prevention of Crime Act, 1908, is of paramount interest as
giving effect to the two principal proposals of the Committee of 1894,
_viz_:--special treatment of the young, and the habitual criminal,
respectively, but it does not affect the Prison régime, as applied to
other categories of criminals, and, so far as it relates to these two
special categories, is dealt with in separate chapters.
Since this chapter was written, the Criminal Justice Administration
Bill, 1914, has become law. The great effect of this valuable measure
is shown in my later chapter No. XVII. dealing with statistics of
crime. It will there be seen how largely prison statistics have been
affected by the obligation now imposed on Courts to allow time for
the payment of fines. The offences for which a fine is imposed are
presumably of a trivial character, but by long custom and usage, the
practice of almost automatic commitment in default had grown to such a
large extent that the intervention of Parliament proved necessary. That
the principle of Imprisonment, and all that it connotes, both of shame
and stigma, should depend upon the accident whether or not a small
sum of money could be provided for payment of a fine at the moment of
conviction, is obviously contrary both to reason and to justice. It is
now laid down that where any prisoner desires to be allowed time for
payment, not less than seven clear days shall be allowed, unless, in
the opinion of the Court, there is good reason to the contrary. It is
also laid down that in all cases where the offender is not less than
sixteen nor more than twenty-one years of age, the Court may allow him
to be placed under "Supervision" until the sum is paid. This provision
is intended to meet the admitted evil of committing young persons
under twenty-one to Prison where the offence is only of a trivial
nature, due, in many cases, to the rowdy and irrepressible instincts
arising rather from animal spirits, and the absence of proper control,
than to any deliberate criminal purpose. It is proposed to create
a new Society, whose business it will be to provide the necessary
supervision, and to act, as it were, as an auxiliary to the Courts in
furnishing a guarantee that the offender shall either pay the fine or,
if after reasonable means of suasion and influence shall have failed,
shall be returned to the jurisdiction of the Court to be dealt with
in a severer manner. By this special provision for young persons,
16-21, who have hitherto come to Prison in such large numbers, the
Act recognizes and extends the principle of the Borstal System--the
principle of which, as I shall explain later, is to concentrate
attention on the young offender at this plastic age, when the tendency
to criminal habit can be arrested and diverted before it is too late,
and before familiarity with Police Courts and Prisons obliterates the
fear and terror of the law, thus rendering easy an almost certain
descent and further degradation to a life of habitual evil-doing.
The Act, moreover, as explained in a subsequent chapter, extends the
application of the Borstal System, as prescribed by the Act of 1908.
As a further provision against the admitted evil of short sentences of
Imprisonment, it is enacted that no imprisonment shall be for a period
of less than five days. Power is given to the Secretary of State, on
the application of any Police Authority, to certify any police cells,
bridewells, or other similar places provided by the authority, to be
suitable places for the detention of persons sentenced to terms not
exceeding four days, and may make regulations for the inspection of
places so provided.
With the object of further modifying what, under the influence of long
custom, has become an almost mechanical use of awarding imprisonment
with hard labour, it is provided that any imprisonment in default of
payment of a sum of money shall be, in the future, _without_ hard
labour, and in other cases, where a commitment is without the option of
a fine, the Court has a discretion whether or not hard labour shall be
imposed. In order to give a fuller application to the Act of 1898, as
before described, _viz_:--that the classification of prisoners should
be into three Divisions, according to character and antecedents, power
is given to the Visiting Committee of Prisons, on the application of
the Governor, to direct that, in any suitable case, the prisoner may be
placed in the Second Division, where, in the absence of any instruction
of the Court to deal otherwise, he would be located in the Third
Division.
It is anticipated that this Act will have far-reaching effects (1) in
the avoidance of imprisonment where the offence can be adequately met
by money payment: (2) in the saving from the taint of imprisonment in
the early years, by placing under responsible supervision and care, any
young person under twenty-one, who, under the old system, would become
familiar with prison surroundings: (3) by extending and strengthening
the provisions of the Borstal Act, 1908, and (4) by making effective
the classification of ordinary prisoners, aimed at by the Prison
Act, 1898, and by adapting their treatment and segregation during
imprisonment according to their antecedents and the character of their
offence.
CHAPTER VIII.
THE BORSTAL SYSTEM.
The little village of Borstal, on the banks of the Medway, not far
from Rochester, has given its name to a system which is now being
universally applied, not only at home, but in our Dominions, for the
treatment of young offenders, 16-21.
It happened in this way. In this village was situated an old Convict
Establishment, formerly used as an annexe to Chatham Convict Prison.
There were still a few convicts there; but there was available space
for an experiment, which it was decided to make (and which is described
later) for the special location and treatment on reformatory lines of
young prisoners, 16-21, selected from the ordinary Prisons, where the
length of sentence afforded a reasonable time for the application of
the system.
The title "Juvenile-Adult" was invented to describe the class--too old
for commitment to Reformatory Schools, and too young to be classified
with the ordinary grown-up criminal.
The average number of youths of this age committed to Prisons in
England and Wales in the opening years of this century was about
19,000. For one year their distribution was as follows:--
16 years 2,898
17 " 4,099
18 " 5,550
19 " 5,576
20 " 5,130
Some light was thrown on the character and antecedents of this class
of young criminal by an inquiry made with regard to the offences,
previous convictions, homes, and educational status of all male
prisoners in the Prisons of England and Wales, on a given day, within
the ages of sixteen to twenty-one. The total number was 1,238. Nearly
two-thirds were guilty of crimes of acquisitiveness, _i.e._, larceny,
burglary, housebreaking, embezzlement, &c. One-fifth of crimes of
passion, _i.e._, sexual offences, assaults, and wounding. There were
twenty cases of malicious injury to property, and the remainder were
convicted of minor offences against bye-laws, &c. With regard to their
education, ninety had none, 512 little, 496 fair, and 111 good. Of the
total number, 280 had good homes, but 198 had none at all; 138 had bad
ones, and thirty lived in common lodging houses. Only 330 were without
previous convictions and 353 had two or more.
At the same time, Dr. Baker, of Pentonville Prison, conducted a most
interesting inquiry with regard to the young offenders between sixteen
and twenty, who passed through Pentonville Prison in the course
of a year. The total was 2,185. Physically, as a class, they were
two-and-a-half inches below the average height, and fourteen lbs.
less than the average weight. Twenty-six per cent. were afflicted
with bodily infirmity. The majority of the offences were of a grave
character, offences against the person and against property without
violence. Twenty-two per cent. were imprisoned for larceny alone, the
various crimes of "acquisitiveness" being characteristic of this age;
while in the aggregate _thirty-four_ per cent. had been previously
convicted (no less than 144 on three or more occasions). In the case of
offences against property, with and without violence, and vagrancy, the
reconvictions were 50, 40, and 45 per cent. respectively.
Public attention has also been called to the large number of indictable
offences, and of larceny in particular, committed by persons of this
age. Criminal statistics are dominated by the rise or fall in offences
of larceny, and this age-category contributed nearly 30 per cent.
The Committee of 1894 made an emphatic declaration in favour of
some action being taken to deal specifically with this class. They
reported:--"The age when the majority of habitual criminals are made
lies between 16 and 21. It appears to us that the most determined
effort should be made to lay hold of these incipient criminals,
and to prevent them by strong restraint and rational treatment from
recruiting the habitual class. We are of opinion that the experiment
of establishing a Penal Reformatory under Government management should
be tried, and that the Courts should have power to commit to these
establishments offenders under the age of 23, for periods of not less
than one year and up to three years, with a free exercise of a system
of licence."
The proposal to found a State, or Penal, Reformatory, confirmed and
emphasized the opinion that had been rapidly gaining ground, both in
England and abroad, and especially in the United States, that _up to a
certain age_, every criminal may be regarded as _potentially_ a good
citizen: that his relapse into crime may be due either to physical
degeneracy, or to bad social environment: that it is the duty of the
State at least to try and effect a cure, and not to class the offender
off-hand and without experiment with the adult professional criminal.
It seems difficult to believe that, until recently, a lad of 16 was
treated by the law, in all respects, if convicted of any offence, as an
ordinary adult prisoner, and that for lads of this age, the principle
had not been recognized that a long sentence of detention under
reformatory conditions can be justified, not so much by the actual
offence, as by "the criminal habit, tendency, or association" (Section
1 (b), Borstal Act, 1908), which, unless arrested at an early age, must
lead inevitably to a career of crime.
But the fixing of criminal majority at 21 has only been arrived at
after a long struggle. It is about a hundred years ago since certain
benevolent persons, struck by the wrong of sending the young to
prison, if it could be avoided, founded the Colony of Stretton in
Warwickshire in 1815, which had for its express purpose the reclamation
of criminal youth between the ages of 16 and 20. The process by which
they conducted their benevolent efforts was curious, for they took
advantage of an ancient law by which young persons might be hired out
in husbandry, and they applied to the County Authorities to hire them
out young prisoners of this age, with a view to their conversion into
honest and useful citizens. So far as I have been able to gather from
the history of Juvenile Crime, no other attempt was made, either
then or for many years to come, to grapple with this problem of
Juvenile delinquency. Though it is stated on the authority of a great
philosopher that "the angel of Hope came down from heaven in the first
decade of the nineteenth century," it does not seem that her influence
began to be felt at that time in Penal and other legislation; it was
some years after the first decade of the last century that Sir Samuel
Romilly complained that it was more easy to get an attendance of
Members at the House of Commons to listen to a Debate on a new archway
for Highgate or a new Water Bill for Holloway, than to any proposals
that he might have to make in the direction of Penal Reform.
It is true that some years later, in 1838, under the auspices of
Lord John Russell, then Home Secretary, an Act was passed for the
establishment of a Prison at Parkhurst for young offenders. The
public conscience had begun to be stirred by the terrible sentences
of transportation passed on mere children and youths for periods of
as much as 15 to 20 years for what we should now regard as petty
offences. The Parkhurst Act of 1838 contained a Clause which has
become historical and is known as the "Pardon" clause. By this, the
Secretary of State was able to pardon any young person sentenced to
transportation on condition that he should place himself under the
charge of a benevolent Association. The benevolent Association of those
days was known as "The Philanthropic Institution", which was the parent
of the famous Red Hill Reformatory School of to-day.
The number of lads, however, sent to Parkhurst was comparatively
few, and the absence of any means of dealing with the great mass of
Juvenile delinquency began to be recognized by thoughtful and humane
persons, and, in 1847, a Parliamentary Committee was appointed to
enquire into the question of Juvenile Crime. It was before this
Committee that the Authorities of the Stretton Colony gave remarkable
evidence which, at the time, came as a new light to a generation whose
imagination had not yet been quickened to perceive the possibilities
of reform in the case of youthful prisoners. They stated in evidence
that "their experience had been with prisoners between the ages of
16 and 20 with whom they had been dealing since 1815, and that no
less than _60 in every 100 might be permanently reformed and restored
to Society_, whereas the ordinary prospect that awaits these youths
under the ordinary Prison System is a life of degradation, varied
only by short terms of Imprisonment, and terminating in banishment or
death." It may be that the eyes of the Committee were opened by this
simple statement of fact. We know that they took a step which is of
singular historical interest. They formally consulted the High Court
Judges as to the possibility of introducing a reformatory element into
Prison Discipline. The High Court speaking in the name of its most
distinguished members, Lord Denman, Lord Cockburn and Lord Blackburn,
declared reform and imprisonment to be a contradiction in terms, and
utterly irreconcilable. They expressed a doubt as to the possibility
of such a system of imprisonment as would reform the offender, and yet
leave the dread of imprisonment unimpaired.