It was in consequence of the Report of the Commission that in 1864 an

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.

The English Prison System · 第 18 / 22 章