THE ACT OF 1864--CLASSIFICATION OF PRISONERS--THE MARK SYSTEM: ITS
DEFECTS--THE TRUE CRIMINAL LAW OF RESTITUTION--THE ONLY METHOD BY
WHICH CONFIRMED CRIMINALS MAY BE RECLAIMED--WORKHOUSES.
The year 1864 was a marked epoch in convict life. A new Act was then
passed and fresh prison regulations were brought into force. This Act
contained one good clause, viz., the abolition of three and four years'
sentences. In one year as many as 1800 men were sentenced to three and
four years' penal servitude, being a large proportion of the total
number. Such men are now for the most part sentenced to eighteen months
and two years' imprisonment, which will account for a decrease in the
number of convicts and an increase in the number of county prisoners.
This is a short step in the right direction. The convict directors take
credit to themselves for this reduction in the number of convicts, and
boast that they have at last found the true panacea for criminal
diseases. A report to that effect, cut out of a newspaper, was
circulated amongst the prisoners, and their indignation was great at
the way in which the public were "gulled" about themselves and prison
treatment. No doubt a few more thieves and burglars are driven to
pursue their callings in France and America by the operation of the new
police regulations, and I freely admit that a few more may annually be
sent into another world by the same means, but no one can yet point to
a reformed professional "Cracksman," "Coiner," "Hoister," or
"Screwsman," as proof of the beneficial results of the change. The most
unpopular clause in the Act was that relating to police surveillance.
The majority of the prisoners were very much annoyed at this
regulation, some of them, indeed, would much rather have remained in
prison than encounter it. For my own part, I approve of the principle
of surveillance. I see in it the germ of a system whereby a large class
of criminals may ultimately be punished entirely outside the prison
walls. I object, however, to the police being entrusted with the duty.
Their proper business is to catch the thief and preserve order. The
surveillance of liberated prisoners ought to be entrusted to those who
are directly interested in empty jails, and who would endeavour to
assist the liberated men either in getting employment or to emigrate.
With reference to the _classification_ of prisoners which commenced
under the Act of 1864, I have no hesitation in saying that it is a
gross fraud upon the public, a delusion and a snare. The error which I
pointed out in a former chapter, as being committed in the selection of
convicts for transportation, is here repeated and in a more aggravated
form, if that were possible. By the new Act the prisoners were divided
into four great classes. Into the fourth, or "probation class," all
prisoners were required to enter on being admitted into prison. After a
certain time, if the prisoner was so fortunate as to escape being
"reported" for any offence against the prison rules, he would be placed
in the third class, and again, after being a certain time in the third
class he was passed, subject to the same condition, into the second,
and so on. Should he have made any mistake and allowed himself to get
"reported," he either missed his chance of getting into the higher, or
was degraded into a lower class. The object of this classification no
doubt was to get all the well-behaved men together, but the blunder
committed was in making obedience to the prison rules the only test of
qualification for the higher classes. This, as I have already
explained, was really worse than no test at all, because the frequently
convicted criminal, who was thoroughly posted up in all points of
prison discipline and regulations, was more likely than the novice to
escape being "reported" for violation of them. The consequence is, that
in respect of character, disposition and moral quality, there is really
no difference to be found amongst the men in any of the classes. The
scheme operates in this way--suppose that a clergyman by some mischance
gets sentenced to penal servitude, and enters the prison in company
with one of the very worst villains that could be selected out of our
criminal population; both these men, the one with a first sentence, the
other with a long string of convictions against him, enter the
"probation class" at Millbank, on precisely the same terms. The "jail
bird," knowing all about the ways of the prison, would probably pass
with ease into the third class. The clergyman, being new to the
discipline, might make a mistake and get "reported," and in that way
would not be so likely to reach the third class so soon as the other;
but granting that he did so they would still be together, the man
inured to guilt and crime would still be beside the new and casual
lodger, the man who had never been in prison before would still have
the opportunity of learning the evil ways of the confirmed rogue.
Again, should the clergyman be fortunate enough in passing into the
higher classes at the usual time, the jail bird would certainly not be
behind.
If a thousand prisoners, from all parts of the country, of all ages,
habits, and antecedents, were brought to one of our convict
establishments, they would go through their time in the same way, good,
bad, and indifferent, all together. The clergyman, even if he were to
get into prison innocently, and were the best Christian in the world,
would never get rid of the jail-bird; and in the highest class his
companions would be no better than those in the lowest.
I grant that our directors could not classify convicts according to
their real merits, any more than a quack doctor could classify patients
suffering from disease; but although they cannot have the knowledge
necessary to do it properly, they might do a little in the right
direction. The quack, even, would know cholic from consumption,
diarrhæa from dropsy; so any man of sense would be able to distinguish
between a case of chronic moral disease and a case of partial or
temporary paralysis of the moral faculty!
The system of "marks," as it is called in prison, is the most prominent
feature in the new regulations, and is based upon the same absurd
principle as the classification clause. The rule relating to marks
specifies "That the time which every convict under sentence of penal
servitude must henceforth pass in prison will be regulated by a certain
number of marks, which he must earn by actual labour performed before
he can be discharged."
The method adopted is to debit the prisoner with a certain number of
marks, according to the length of his sentence, and if he performs the
whole of the work required of him he is credited with as many marks as
would represent a fourth part of his sentence.
If this law were carried out in its integrity it would be most cruel
and unjust. Fortunately for the prisoners it is not very strictly
adhered to--at least not at the prison where I was confined--the
officers making allowance for the prisoners' infirmities. To show how
it would operate, let us take the case of the clergyman and the
jail-bird once more. Assuming that the former was a stout and healthy
man, and able to work, but not having been accustomed to it, really not
able to do much of it, and that the latter had been at the work for
years--which would win in the race for liberty, if the law was strictly
enforced? The probability is that the clergyman would not earn a single
day's remission, whilst the jail-bird would get one-fourth of his time
remitted; and assuming that both had the same sentence originally,
would go a considerable way into a "fresh bit" before the poor
clergyman had finished his first sentence.
The "mark" system admits of great cruelty being practised, but on the
whole, as it is carried out, it is a more innocent piece of deception
than the classification. At the public works, however, there is much
injustice done by it, no allowance being made for a sick man, unless he
has met with some accident. If the "marks" were money, _bonâ fide_
sovereigns, and if the prisoner were permitted to exercise the
abilities God has given him in order to earn that money, there might be
some sense and justice discernable in the system. As it is there is
neither.
I may here venture to say that we might materially diminish crime and
expense connected with the prosecution and punishment of criminals by
doing away with our convict establishments altogether, except for the
confinement of political prisoners, and those having sentences for
life. In lieu of these I would suggest the introduction of the system
of remissions into our county jails, granting first offenders a
liberal, and third and fourth, an extremely small allowance. Teaching
the prisoners such trades as they are fitted for, qualifying them for
colonists, and selecting the most suitable for emigration. I would also
place the jails and workhouses under one management. Commissioners for
the prevention of crime and pauperism in each county, and subject them
to a rigid government inspection by a board responsible to Parliament
and the nation.
But even this would only be a partial reform. I would have our criminal
laws based upon the old Mosaic principle of "enforced restitution," and
carried out on the Christian principle of making the offender "pay the
uttermost farthing." Then we could fairly and justly retain the idle
and the useless in the net of justice, and allow the willing and
industrious to achieve their own freedom by satisfying the claims of
the law.
Now, when time has been strangled, and virtue repressed, we allow the
worst villains to escape, and all that has been required of them in
prison was civility to officers, obedience to a stupid discipline, and
a few years' work which neither enables them to support an honest
livelihood outside the prison, or contributes in any appreciable degree
to their maintenance inside.
Under the system I propose, every man who stole a sheep would have to
pay the same penalty before he could exercise the rights of
citizenship--no matter whether his character was good, bad, or
indifferent; no matter whether he was rich or poor, a peer or a
peasant, the voice of impartial justice would say, "You have incurred
the same debt to the State, and the same penalty must be paid."
At present every man who steals a sheep has to pay a different penalty.
This man is sentenced to six months, that other to twelve months, and
then another to fifteen years of penal servitude, according to the
discretion of the judge; and instead of being made to pay the price of
the sheep and the costs of his prosecution, he becomes a grievous
burden to the honest tax-payer, who has to supply him with chaplains,
schoolmasters, surgeons, cooks, bakers, tailors, and a whole host of
servants in livery to minister to his wants, and so unfit him for the
practice of economy, frugality, and other kindred virtues when his
fetters are cut. Under a law based on the principle of restitution, the
man of good character and industrious habits might be able to find
sureties to enable him to discharge his debt to the State under the
surveillance of the authorities, without being surrounded by prison
walls. The man of middling character might only have a limited amount
of liberty, such as the responsible authorities might grant him. Whilst
the man of bad character would have to discharge his debt inside prison
walls, where he might still continue a villain in habits and heart, and
increase his debt by fresh acts of dishonesty; but this would be his
own fault, and the safety-valve of the machinery.
But to return to the Act 1864. If the labour performed under the "mark"
system was either remunerative, or such as a convict might obtain an
honest living at when liberated, the system could not be condemned as
utterly bad. But if we except the tailoring and the shoemaking done for
the use of the establishment, there are really no other employments
suitable for the general class of men who find their way into prison.
The professional thief--and I am now speaking of the _reformation_
as well as the punishment of criminals--requires to be taught some
trade for which he has a natural aptitude before it is possible for him
to gain a livelihood, and he must be taught it well, for unless he is a
skilled workman he would not be worth the wages necessary to keep him
out of temptation. To go on punishing such men in the hope that we will
make them honest, is absurd; and to persevere in "reforming," them
without teaching them practically that which is indispensable to their
remaining honest, is equally ridiculous. We may train a boy to be a
labourer of almost any sort, and can impart moral and religious
instruction to an unformed mind with success, but if we attempt to do
either of them with a confirmed thief who has not been taught to work,
we must be disappointed in the result. The _first_ step to reformation,
is to interest him in some employment suitable to his abilities, and
any other step taken before this only hinders or prevents the work of
reformation. We have never yet taken this first step, consequently we
have never yet succeeded in reforming any of them. It is also essential
that such work should be also well paid, and that the money made at
such employment should be his passport to liberty. Under the present
system we only make him kill time at labour which disgusts him with all
kinds of regular industry. The county prison sentences are, moreover,
too short to enable the thief to earn such a passport to freedom, but
they are of just the requisite length and fitness for turning the
casual into the confirmed criminal. In fact, _time_ sentences are
not suitable for confirmed thieves. Their sentences ought to be so much
money to be earned in a penal workshop, where honesty and economy could
be practised as well as industry. There are two grave objections urged
against teaching thieves lucrative trades. Firstly,--it would tempt
others to commit crime; and secondly, it would interfere with free
labour. With regard to the first objection, I admit there would be some
force in it if the sentences were such as they are now, because time
runs on, whether the prisoner is industrious or not. But if the
sentence imposed a fine in addition to all the expenses incurred by the
prisoner during his incarceration, there would then be no inducement to
the commission of crime. With reference to the second objection, I
would merely state that all labour done in prison of a useful character
interferes with free labour to some extent, but I contend that if each
prisoner was employed at that kind of work for which he is best
qualified, it would interfere less with the proper and necessary
division of free labour than the present plan of keeping a large number
of men employed at work for which they have no special aptitude.
The error we have made in employing prisoners hitherto is not merely
that we have employed them at trades or other employments not suitable
to their natural abilities, but that we have entered into competition
with those trades where too much competition already exists. We should
never have allowed smart young pickpockets to compete with poor
sempstresses, whose ranks are already overcrowded. There will always be
plenty of honest people descending in the social scale to do underpaid
work, and there are thousands of petty thieves who are not fit for any
other. So that there is a greater need for elevating the clever
professional thief to the position of a skilled artisan.
The city bred thief class are far from being dunces or "flats," and it
is not possible to make them common labourers. Many of them may very
fitly be compared to the idle and dissipated "swells" of the middle and
higher classes. If we took a "fast" young nobleman, for instance, and
put him to some office agreeable to himself, so that he conceived a
decided liking to harness, it would do him a deal more good in the way
of reforming him than a course of lectures on the seventh commandment!
And assuming that by so doing he enticed other "swells" to buckle on
official armour, it might interfere with the prospects of some who had
never been "fast," but on the whole, society would benefit by the
change. I maintain that that would be the correct method to adopt with
some of those thieves who are totally irreclaimable by our present
system of prison discipline. With regard to the casual and petty
thieves, their case is somewhat different. Many of them could not be
raised above the lowest class of common labourers, but by adopting a
system of individualization, that is studying each man's natural
abilities, we could always arrive at the best results. It might be
advanced as a third objection, that it would be impossible to make
thieves pay their expenses in prison, and a fine in addition. Under our
present system I admit it would be very difficult, but in the penal
workshops, into which I would turn all our prisoners, this objection
would not hold good. The prisoner would then be stimulated to labour at
paying work agreeable to his tastes and suitable to his abilities, and
the cost of his maintenance would be less than it is at present. Those
who really could not earn a living in the penal workhouses, and those
who would not earn their living, I would transfer to the prison for
criminal incurables. I would not have any first offenders against
property in prison, I would punish them as ticket-of-leave men. In the
penal workshops I would only have persistent thieves. In the convict
prisons only great offenders against the person and traitors. All the
persistent criminals of the petty class, I would consign to the
workhouses; but the character of our workhouses would require to be
altered. There are three distinct classes of paupers. (1) Those who
have become paupers through no fault of their own. (2) Those who have
become paupers through vice; and (3) The vagrant class. I would refuse
admission to the workhouse to the first class, just as I would refuse
admission to the prison in the penal workshops to first offenders
against property. I would treat them, on the family system of
out-of-door relief, as the deserving poor. The second class I would
admit into the workhouse, and the vagrant class as well, but on the
understanding that they did not get out again till they had paid their
bill. In short we ought to make our prisons and our workhouses paying
concerns, and with the former there need be no difficulty whatever;
above all we ought to keep the deserving poor from the other classes,
and the regular thieves from those who have only erred once. Every man
found guilty of crime who can prove that he has been working at an
honest calling up to the time he committed it, should be prevented from
mixing with confirmed criminals, or even from going into prison, unless
for some great crime against the person for which enforced restitution
would not be a sufficient atonement.