Front matter (continued 2)

The penalty of death is now practically restricted to cases of murder, although permitted by law in the case of treason, and certain forms of piracy and arson. The average number of capital sentences for the last ten years has been 25, and of these, 13 suffered the extreme penalty of the law.

I propose to commence the Study of the English Prison System by a short survey of the history of Penal Servitude,—an essential preliminary to an understanding of the System as it exists to-day.

CHAPTER III.

THE HISTORY OF PENAL SERVITUDE.

Penal Servitude was substituted for Transportation in the year 1853. It will be necessary to trace shortly the history of Transportation, so that the features of Penal Servitude, as they exist to-day, may be understood. Transportation is first mentioned as a punishment under an Act passed in the reign of Charles II, which empowered Judges to exile for life the moss-troopers of Northumberland to any of H.M. Possessions in America. It is stated that in the Bloody Assizes of 1685 Judge Jeffries sent no less than 841 persons to Transportation. It appears to have been the practice to subject these transported offenders to penal labour, and to employ them as slaves on the estates of the planters. An Act was passed in the reign of George I., giving to the persons who contracted to transport a property and interest in the service of such offenders. A great want of servants in the Colonies is one of the reasons assigned for this mode of punishment. In spite of this, however, many of the Colonies, especially Barbadoes, Maryland and New York, objected to having their wants supplied by these means, and with the War of Independence, transportation to America ceased.

It was about this time that, under the influence of Blackstone, Howard, and others, what was known later as the Penitentiary System for the treatment of Crime began to be considered in England, and an Act was passed in the year 1778 for the introduction into the Prison régime of the three factors on which the so-called Penitentiary System rested, viz:—separate confinement, hard labour, and instruction—secular and religious. Although the System was commenced in good earnest in a few places, e.g., Petworth and Gloucester, under the auspices of keen prison reformers (at these places, the Duke of Richmond and Sir G.O. Paul) it was not till some fifty years later that general interest was attracted by the experiments being made in the United States, where the rival Systems—"Cellular" and "Associated," as carried out at Philadelphia and Auburn, respectively, have become historical.

Although historically our Prison System may be said to date from the Prison Act, 1778, a long, dismal history of ill-considered administration was destined to intervene before the principles of penal science, as now understood, obtained expression. It is probable that the discovery of Australia by Captain Cook was the "mésure de circonstance" which determined the prison history of this country for nearly fifty years. The easy methods and means of transportation which this great Colony afforded, relieved Parliament of the necessity of inventing any new and wise methods for the punishment of crime. The system instituted in 1788 for the transportation of offenders to the Australian Colonies was regularly organized and extensively acted upon up to 1840. It could not, however, survive the condemnation of the Parliamentary Inquiry of 1837. It was condemned absolutely, as being unequal, without terror to the criminal class, corrupting to both convicts and colonists, and extravagant from the point of expense. This condemnation of the Colonial System followed closely on another Inquiry of the previous year into the Hulks, and the System of Imprisonment at home.

Transportation to New South Wales was abolished by Order in Council in 1840, and in the case of those still transported to Van Dieman's Land, a "progressive stage" system was instituted, under which convicts were able to gain a succession of privileges in different classes, terminating either in a ticket-of-leave in the Colony, or in a conditional or absolute pardon. This plan, however, failed, as the benefits of a gradually improving condition could not be realized from the fact that the supply of convicts was greater than the demand, and so they could not be absorbed when they had qualified for private service or employment. There was no employment to prevent these men from starving, and the Government were obliged to furnish subsidies and work. By 1846, accounts which had been received of the moral degradation of the convicts, crowded together in depôts, were of so alarming and deplorable a nature, that public opinion was deeply roused, and the two Ministers who were then responsible (Lord Grey at the Colonial Office and Sir George Grey at the Home Office) took the matter in hand. Transportation was stopped for two years, and it was generally agreed that it could not be resumed on the former plan. It was arranged that all convicts should undergo (1) a limited period of separate confinement at home, the advantages of which as a basis of discipline had been fully proved at Pentonville Prison: (2) that they should then be sent to associated labour on Public Works in this country, or at Gibraltar, and Bermuda, and (3) thence they should be removed on Ticket-of-Leave to any Colony disposed to receive them.

The history of Pentonville Prison is an essential guide to a clear understanding of the actual basis of our Penal Servitude, as well as of our ordinary Prison System. I have already stated that the Penitentiary idea, of which the basis is separate or cellular confinement, had found expression in an Act of Parliament of 1778, and that the idea had, owing to many circumstances, remained obscure till it was revived in the United States of America. In the second quarter of the last century Mr. Crawford, an Inspector of Prisons appointed under the Prison Act, 1824, (which had again endorsed the principle, although little or no effect was given to it) was sent to America to report on the question. Papers drawn up by himself and Mr. Russell, also an Inspector of Prisons for the Home District, were submitted to Parliament, and were widely discussed. In 1837, Lord John Russell, the then Home Secretary, issued a Circular to the Magistracy expressing his own conviction on the efficacy of separate cellular confinement, as a means both for the punishment of crime, and for the reformation of the offender. It was then decided to erect Pentonville Prison as a model Prison on the cellular plan for the purpose of practically working out a new system of Prison discipline. The Prison was occupied in December 1842. Commissioners were appointed to superintend the experiment, drawn from leading members of the social and public life of the community. Two Medical Commissioners were also appointed to watch narrowly the effect on the health of the prisoners. The period of separate confinement was limited to eighteen months. The Second Report of the Commissioners expressed the opinion that the adoption of separate confinement, as established at Pentonville Prison, promised to effect a most salutary change in the treatment of criminals, and was well calculated to deter, correct, and reclaim the offender; and in their Fourth Report they stated that the Separate System was safe and efficient, and that generally the moral results of the discipline had been most encouraging, and were attended with a success which was without parallel in the history of prison discipline, and that it was the only sound basis on which a reformatory discipline could be established with any reasonable hope of success.

In virtue of these strong and unanimous opinions, the principle of Separate Confinement for the first stage of Penal Servitude was established, the period in the first instance not to exceed fifteen or eighteen months. At the end of that period the principle of employing convict labour on national works of importance was adopted, as affording, in connection with the reformatory influences brought to bear in separate confinement, the best means of training the men to those habits of industry which would fit them to earn an honest livelihood on discharge, either at home or abroad. The abolition of the Hulks was at the same time decided upon. The employment of a large body of convicts on what was called the "Public Works" System commenced a new era in the history of Prison Administration in England. It was a combined system applicable to all convicts: (1) a fixed period of separate confinement: (2) employment in association on Public Works at home for a period apportioned to the term of the sentence: (3) disposal with a Ticket-of-Leave in the Colonies. It was ordained that a convict "shall not pass out of the custody of the Government in the Colony until he shall be engaged, for at least a year, for service with some private employer. If suitable service cannot be obtained, the convict shall be employed by Government." The condition of the Ticket-of-Leave was that "the holder is required to remain in a particular district, must be at his dwelling from 10 o'clock at night to day-break, and must report himself periodically to the Police Officer of the district." This combined system of home discipline and colonial disposal depended for its success (1) on the character and conduct of the convict being such, while under the discipline of a Public Works Prison, that remission could reasonably be accorded with a view to expatriation: (2) that the Colony should be willing to receive convicts on Ticket-of-Leave, i.e., in a state of semi-liberty. In fact, convicts were able to render themselves ready for transportation after serving less than half the period of their sentence, e.g., two years, in a seven years' sentence, two-and-three-quarters in ten years, and so on. The claims to this remission were carefully estimated from daily records of conduct and industry kept by the subordinate officers. No Mark System, as now understood, was then in operation. A system of Badges (worn on the arm of every prisoner) was the principal incentive to good conduct. As soon as the letters "V.G." (Very Good) were inscribed on the Badge, he became eligible for a Ticket-of-Leave. Gratuities were also credited to well-conducted convicts for conduct and industry, respectively. There were three degrees of conduct, carrying 6d., 4d., and NIL per week. There were three degrees of industry—VERY GOOD, GOOD, and NIL, carrying 9d., 4d., and NIL.

The first prisoners were embarked from Portland in 1849. Favourable accounts were received of their conduct from Van Dieman's Land and Australia. The System, however, which was bearing good fruits, only remained in operation till 1852, when Van Dieman's Land refused any longer to be made the receptacle for the disposal of malefactors from the Mother-Country, and the cessation of Transportation, and the release of so many desperate characters at home, caused the gravest apprehension in the public mind. There were at that time about 8,000 male convicts in the Convict Prisons in England, and at Bermuda and Gibraltar. The question arose whether the men should be released perfectly free, as had previously been the case of thousands discharged from the Hulks, or whether the plan of granting a Ticket-of-Leave on a principle which had long been established in the Colonies, should be adopted. The Penal Servitude Act, 1853, represents the decision of Parliament on the matter. That Act substituted sentences of Penal Servitude for those of Transportation, four years of the one being deemed equivalent to seven years of the other; and the Secretary of State was empowered to grant to a convict a licence to be at large during the unexpired portion of the original sentence of Transportation. Public opinion remained, however, restless and dissatisfied with the discharge of so many Ticket-of-Leave holders in the Mother-Country, and a formidable public agitation led to the appointment of a Select Committee of the House of Commons in 1856. The Penal Servitude Act of 1857 embodies their recommendation, viz:—that the terms of Penal Servitude should be extended to a period corresponding with former sentences of Transportation, and that every punishment by Penal Servitude should, in addition to separate Imprisonment and labour on Public Works, include a further period capable of being abridged by the good conduct of the convict himself, i.e., that there should be a remission of part of a sentence of Penal Servitude in the case of those convicts whose conduct in Prison was such as not to deprive them of the indulgence. The portion to be remitted varied from one-sixth in the case of a three years, or minimum, sentence, to one-third of a sentence of fifteen years and upwards. The principal punishment for serious crime became then what it has remained ever since, and involves a triple responsibility on the part of the Judge who passes the sentence, the Secretary of State who fixes the maximum amount of remission, and the Prison Authorities whose duty it is to keep a just account of the conduct and industry which will enable them to reckon the amount of remission to be granted.

What has since been known as the Progressive Stage System was introduced by regulations passed subsequently to the Act of 1857. They prescribed a period of nine months in separate confinement, the remaining term of the sentence being divided into three stages of discipline, representing three equal portions of the residue of the sentence. On passing from the first to the second Stage, prisoners were rewarded in the way of extra gratuities, badges, etc. On arriving at the third Stage, there was a further increase of privileges of the same nature, and a different dress from that of ordinary convicts was worn.

The object aimed at was to devise a useful system of progressive reformatory discipline, based upon a nice adjustment of the elements of hope and repression, but subject to the principle that the punishment due to the crime is the primary object, and that, consistently with that, no effort to reform should be neglected.

This idea of progressive reformatory discipline had, therefore, an entirely English origin, and was the result of the tireless efforts made at that time by Sir Joshua Jebb, and his colleagues, to devise a system for the punishment of serious crime in lieu of Transportation. It retained such features of the Colonial System as it was practicable to engraft on the system of Penal Servitude at home, although this latter involved a longer term of detention in actual custody with diminished prospect of employment on discharge.

It betrays a curious ignorance of the English System that the origin of this idea has become historically attributed to an Irish source. Idle principle which had been established with so much care at Pentonville and Portland was introduced into Ireland by Sir Joshua Jebb himself, when, in consequence of the number of convicts in that country rising from 700 to two or three thousand, he was ordered by the Government to proceed to Dublin, and advise the Prison Authority there with a view to the adoption of the Progressive System. The English Rules were, as far as possible, applied at Spike Island and at Mountjoy. In 1850, a few years later, Sir Joshua Jebb was again ordered by the Government to proceed to Ireland, but as he was unable to go, Captain Knight, Governor of Portsmouth Prison, took his place, with the result that a Board of three Directors was formed, (of which Captain Knight was a member) who entered upon their duties in 1854. Captain Crofton, Chairman of the Board, stated in evidence before a Committee of the House of Commons that he had followed out the English System, and in the Report for 1855 it is stated that the System of Progressive Classification continued to have an excellent effect. The only difference in the Irish System was the adoption of an Intermediate Stage before discharge followed by Police Supervision, both the conditions having been established as elements of the English System in the Colonies. This part of the Colonial System was not, however, adopted in England, as the Government naturally shrank from the great and novel responsibility of finding employment in England for discharged convicts. Ireland, however, with its rural and scattered population, its demand for labour, and its centralized police, afforded facilities both for securing employment, and, with it, police supervision, which should not be hostile, as a system of espionage, but friendly in its character, and from knowledge of local circumstances, calculated to promote the welfare of the convict. The relatively small number of convicts in Ireland rendered easy the introduction of the so-called Intermediate System, which was simply the collection of the better-disposed convicts previous to their discharge in centres under easy discipline, with a view to disposal under favourable conditions. The strong belief which existed at the time that the so-called Irish System was producing results which were unprecedented was due to the economic history of the country. During the years when the system was introduced, it happened that Ireland was passing through a crisis without parallel in the history of Europe. The crisis included a famine, a pestilence, an exodus, a transfer of large areas of land to a new proprietary, and the introduction of a new Poor Law. The population was decimated three times between 1845 and 1861. Towards the end of this period, work became plentiful, and wages rose as much as one hundred per cent. At the same time, in England the population was increasing, work was difficult to find, there was no centralized police as in Ireland, and any comparison between the results of the two Progressive Systems would have been valueless, the conditions being so entirely different.

Owing to an increase of serious crime in the early 'sixties, public attention was again called to the system of punishment in force, and a Royal Commission was appointed to enquire into the operation of the Penal Servitude Acts. It was found that the late increase in crime coincided in point of time with the discharge of convicts sentenced for short terms, i.e., for three years under the Act of 1857; and it was proposed that the minimum term of penal servitude should be increased, and that longer sentences should be passed on persons guilty of habitual crime. The Commissioners pointed also to defects in the methods of identification: they objected to reconvicted convicts not receiving remission, and believed that it would be more effectual to pass long sentences on reconvicted prisoners than to remove the chief inducement to industry and good conduct. They found fault with the Regulations made under the Act of 1857, on the ground that they did not indicate to convicts with sufficient clearness that remission could only be earned as a reward for industry and conduct. They objected to giving credit for general good conduct as well as for industry, on the ground that the mere abstaining from misconduct gives no just claim for reward. They advocated the adoption of the Mark System as introduced into Australia by Captain Maconochie, and, subject to a considerable remission of punishment earned under this system, they were in favour of longer sentences. They came further to the opinion that the Irish System of Police Supervision should be adopted in England. They thought that the sentence of Penal Servitude should be for not less than seven years, subject to the concession that the third of a period would be remitted under the operation of the Mark System, when the highest industry had been maintained. They were in favour of continuing Transportation to Western Australia: they pronounced against the high rates of gratuities which convicts in England were entitled to receive, and regarded favourably the system by which convicts in the Irish Intermediate Prisons, and the "road parties" in Western Australia were allowed to spend a weekly portion of their earnings in procuring for themselves certain indulgences. Appended to the Report of the Commission was a Memorandum by Lord Chief Justice Cockburn, which has become historical as laying down the principles which, in his opinion, ought to be observed in the punishment of offenders, viz:—

"These purposes are twofold; the first, that of deterring others exposed to similar temptations from the commission of crime; the second, the reformation of the criminal himself. The first is the primary and more important object: for though society has, doubtless, a strong interest in the reformation of the criminal, and his consequent indisposition to crime, yet the result is here confined to the individual offender, while the effect of punishment, as deterring from crime, extends not only to the party suffering the punishment, but to all who may be in the habit of committing crime, or who may be tempted to fall into it. Moreover, the reformation of the offender is in the highest degree speculative and uncertain, and its permanency, in the face of renewed temptation, exceedingly precarious. On the other hand, the impression produced by suffering, inflicted as the punishment of crime, and the fear of its repetition, are far more likely to be lasting, and much more calculated to counteract the tendency to the renewal of criminal habits. It is on the assumption that punishment will have the effect of deterring from crime that its infliction can alone be justified, its proper and legitimate purpose being not to avenge crime but to prevent it. The experience of mankind has shown that though crime will always exist to a certain extent, it may be kept within given bounds by the example of punishment. This result it is the business of the lawgiver to accomplish by annexing to each offence the degree of punishment calculated to repress it. More than this would be a waste of so much human suffering; but to apply less out of consideration for the criminal is to sacrifice the interests of society to a misplaced tenderness towards those who offend against its laws. Wisdom and humanity, no doubt, alike suggest that if, consistently with this primary purpose, the reformation of the criminal can be brought about, no means should be omitted by which so desirable an end can be achieved. But this, the subsidiary purpose of Penal Discipline, should be kept in due subordination to its primary and principal one. And it may well be doubted whether, in recent times, the humane and praiseworthy desire to reform and restore the fallen criminal may not have produced too great a tendency to forget that the protection of society should be the first consideration of the lawgiver."

The views of the Lord Chief Justice on the value of Police Supervision, and Ticket-of-Leave, and the aspect from which he regarded the value of the Irish Intermediate System attracted much attention at this time. He stated:—

"Those who advocate remission, make supervision an essential element in their system, as necessary not only for the security of the public, but also for the protection of the convict himself when first set free and exposed anew to temptation. But it may be questioned first, whether supervision is practicable; secondly, whether, if practicable, it is not more mischievous than beneficial. There can be little doubt that by change of name, and change of locality, which, as we have just seen, is largely resorted to for this purpose, holders of Tickets-of-Leave can without much difficulty elude the vigilance of the police; and no adequate means have been suggested for satisfactorily overcoming this difficulty. But a far more serious objection arises from the fact that, at least in this country, any supervision by the police, or other officer appointed for the purpose, would be fatal to the convict's chance of employment, on which his continuing in the right course, if so disposed, so materially depends. Police supervision is incompatible with the concealment of the man's antecedents, while, in the great majority of instances, the well-doing of the convict must depend on his secret being kept. Few masters would employ a man who was known to be a convicted felon, and an equal obstacle would be found in the disinclination of other labourers to be associated with one thus degraded. It would seem, therefore, that if remission is to be continued, it would be better that it should not be attended by any attempt at supervision, the beneficial effects of which, from the difficulty of carrying it out, are doubtful, while its mischievous tendency, so far as relates to the welfare of the convict, is apparent. It would seem to be better to leave the liberated convict to take his chance of finding employment and making his way as he can, than to fetter him with a clog which may prevent the possibility of honest exertion."

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.