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State, although nothing of that sort may be intended under the rules now proposed.
I propose in this paper to offer some observations on each of these changes, and on some which are made possible and might follow if the views of some who discuss these subjects should prevail.
With a view to their proper appreciation it is for many reasons desirable briefly to recall the position in which the Prisons Act 1877 left the subject, as well as the state of affairs which led to that enactment, particularly because some of the proposals we hear made from time to time, and loudly advocated, are such that it is necessary to demonstrate that change is not necessarily progress, but that movement which brings one back towards the place one started from can only be called retrogression and may destroy or at least put in peril all that has been gained by years of thought and effort and by unstinted expenditure of money.
There are two classes of prisons in the United Kingdom-those for convicts sentenced to penal servitude, and those for all other classes of prisoners, untried as well as tried. The convict prisons, successors of the hulks, and substitutes for the transportation system, were in 1850, after going through various experimental stages, put under a body called Directors of Convict Prisons, who act under the Home Secretary. The rules under which they are governed and administered are issued on the sole authority of the Home Secretary. They are the outcome of long and varied experience, and of public discussion, extending over many years, in which people of the highest authority took part. Except in so far as different convict prisons are appropriated to special purposes, such as invalid prisons, all are conducted under a uniform code of rules, and speaking broadly every convict passes through the same course of discipline, medical reasons being almost, or perhaps altogether, the sole ground for difference.
The history of the local prisons, in which all sentences other than that of penal servitude are passed, differs entirely from the foregoing, and the point that is most remarkable about it is that whereas at present the advocates for thorough change favour a less penal régime and greater elasticity in the treatment of prisoners, to be effected by giving the local authorities more direct power in prisons, the whole tendency for at least fifty or sixty years was in a diametrically opposite direction.
Repeated Acts of Parliament limited and controlled the elasticity which resulted from the power of the local authorities to conduct their prisons in their own way, until in 1865 an Act was passed in order to ensure complete uniformity in the prison system throughout the country. To this end is prescribed in great detail the system on which a sentence of imprisonment was to be carried out; one of the principal characteristics of that system being its distinctly penal and deterrent character.
The Act of 1877 made only one or two very slight changes in the system prescribed in the Act of 1865, but those changes were in the direction of diminishing its rigour. The main object of the Act of 1877 was rather to ensure the Act of 1865 being properly carried into effect—and so further promote uniformity-making the treatment in all prisons alike by taking away from the local authorities such power as the Act of 1865 had left them. It effected this object by placing these prisons entirely under the Home Secretary, giving him power to make rules which, of course, had to be consistent with the system laid down in the Act of 1865 and had to be approved by Parliament. As a necessary corollary of this transfer of authority it placed the whole administration under him assisted by a body of Commissioners and its cost on the State.
The successive changes above referred to, leading up to the important Act of 1865, which may be considered as embodying our present penal system, had all been adopted on the recommendation. of Parliamentary Committees and Royal Commissions, and these had their origin mainly, if not entirely, in public agitation caused by an increase of crime. The contrast between all former and the existing movements for a change in the prison system is in nothing greater than in this, that on this occasion there has been no public agitation or alarm on account of an increase of crime, because, in fact, crime has very largely decreased most notably in recent years, from which it would be reasonable to infer that the measures taken with that object have been effectual-the prison system and its administration among the rest-and some other reason therefore has to be found by those who advocate the adoption of principles the opposite of those which have guided all our previous legislation with regard to prisons. It is sometimes well to remember the epitaph on the man who was too fond of doctoring himself, 'Was well-would be better, and here I am.'
It is somewhat important to make clear that the present system and the existing uniformity in our penal establishments are specifically required by statute, the final phase of a long course of legislation in the same direction, and after ample experience and discussion, because the advocates of non-uniformity and of greater variety—or elasticity as it is termed-in the mode of carrying a sentence into effect in order to suit it to individual cases, have given the present writer much more credit for the existing uniformity than he deserves ; sometimes they have done so, perhaps, from want of knowledge of the facts above related, but sometimes because a certain class of controversialists find it easier to enlist the sympathies of the public by persuading them that they are attacking only the personal views of some individual, than if they let them see they are attacking the opinions of a great body of experienced authorities whose views are expressed in an Act of Parliament. Uniformity, in fact, has not been
enforced or promoted as they would represent from mere blind love for symmetry.
Prison rules should be essentially uniform for the same reason that laws are uniform. Each judge or magistrate should be able to know exactly the effect of any sentence he pronounces, just as a physician should know the precise strength of the drugs he prescribes, and if the reaction against uniformity goes, as by some proposed, so far that the mode of carrying out a sentence is to be varied to suit individual prisoners, it follows as a consequence that it must vary according to the views or idiosyncrasy or character of those who have to carry the punishment into effect, and the power of varying it, and this, it is obvious, must in most cases be the views of the governor or warders of each prison, who alone can study the individual peculiarities of prisoners. This is as if the druggist could vary the strength and quality of the drugs prescribed by the physician.
I have pointed out above that another principal object and characteristic of the Act of 1865 besides the promotion of uniformity was the distinctly penal and deterrent element it enforced. The penal elements of a sentence used to be defined as ' hard labour, hard fare, and a hard bed.' 'Hard labour' is a very old term introduced, I believe, in Howard's time as part of a sentence of imprisonment, but it had no very definite or statutory meaning attached to it until 1865, though no doubt it was intended to convey the idea of 'laborious' in the sense, perhaps, of the curse in Genesis, 'in the sweat of thy brow shalt thou eat bread.' It has, therefore, a very respectable origin as a penal element. But as it was desired that this penal element should be compulsory, the Act of 1865 gave a definition of the hard labour that was intended by enacting that there should be in every prison means of enforcing 'first class hard labour,' defined as of the type of the treadwheel or crank, stone breaking, &c., and that every adult male prisoner with exceptions should undergo this for at least three months if his sentence was so long, and it might at the discretion of the local authorities be enforced for the whole sentence however long. The Act of 1877 diminished the minimum period to one month, and the action taken by the Commissioners under that Act has been confined to carrying out the law of 1865, adopting and enforcing the minimum period allowed by the Act of 1877, but making use of such elasticity as is permitted in order to promote reformation among the prisoners by enabling them by good conduct and industry to free themselves from the more penal elements. This was done by the introduction of the system of Progressive Stages, which is now to be adopted among the new rules.
The Bill now before the House of Commons repeals the above penal clause of the Act of 1865, and further repeals all the prison rules made under that Act, so that for the future the rules of the prisons, the prison system in fact, may be whatever each Home Secretary may
make it. Although there are risks attaching to this important step, it is reasonable that the Home Secretary should have more power of revising rules than he now has. At present he must pass an Act of Parliament to enable him to make the smallest alteration from the prescriptions of the Act of 1865. But risks there undoubtedly are. In the days when hanging was a very common punishment, Burke said that if a country gentleman can obtain no other favour from Government, he is sure to be accommodated with a new felony without benefit of clergy.' It is possible that there may be times when a similar complacency may be displayed in the enactment of prison rules. When a Government is weak and the goodwill of every supporter or the conciliation of opponents is of consequence, it will cost little to oblige any such persons who may happen to have views which could be gratified by altering prison rules. It is true that new rules have to be laid before Parliament, but it is only in exceptional times that they would attract much attention, or that an address could be carried against a Minister's proposals. I can from my own experience testify that this is not by any means an imaginary danger, and by gradually whittling away it might lead insensibly to considerable alterations in any system which may be at first established, to improve or replace what now exists. The tendency to bring pressure with a view to this whittling process is evident already in the debate on the second reading. If the Act is silent, governors may hold various views of what constitutes hard bodily labour.
The point principally relied on by those who advocate a fundamental change in our prison system is that a large number of prisoners are found to have been previously convicted, and from this it is inferred that the penal treatment which is followed in the present system is proved not to achieve its object. This raises or begs the question: What is the object which a sentence of imprisonment should serve? The persons referred to would no doubt say, and indeed do say, that object should be the reformation of the individual offender, they set aside altogether the question of the deterring effect of the fear of punishment on those who have not yet committed crime. If this is left out of consideration I believe there are few people of any authority who would not prefer to preserve those who have committed crime from doing so in future by gentle and reformatory methods if it were practicable. But if this is to be the object, no amount of tinkering at prison rules will suffice. An entire recasting of the criminal law will be necessary, and it will be necessary to provide for the establishment of reformatories for adults in which persons without limit of age may be confined for whatever period may be thought adequate to effect a reform. The existing Reformatory Acts which apply only to young people fix the minimum period in which reform can be expected at two years, but the actual average period of confinement in reformatories is more than three years.
This is a most important point, which is always evaded or perhaps not perceived by the advocates of reformatory imprisonment. Reform is distinctly a process requiring time. To reform a person means to alter their whole habits of thought and action, to make the idle industrious; to train the self-indulgent to exercise self-restraint; to teach the selfish to respect the rights and wishes of others, and so on; and this cannot be effected in a few days or weeks by mere talking or preaching; the patient, if he may so be called, must be put to live for a considerable period among right-minded people so as gradually to imbibe their tone of thought, and form good habits in place of bad, good prejudices in place of evil. I cannot conceive that any person who has seriously and practically considered the process of reformation will not have arrived at this conclusion, and this being so it is manifest that, in order to give reformatory treatment a chance, laws which permit only short sentences must be replaced by others. Moreover if such laws should be passed, it would then be necessary to educate and convince all the judges and magistrates who have to carry out the law, that they ought to pass sentences of sufficient duration; and it would also be necessary to provide prison reformatories sufficient in number and capacity to contain the vastly increased accumulated population which such longer average of the duration of sentences would require.
I will not encumber this paper with a flood of figures on this point, but by way of illustration of the immense magnitude of. the problem I will observe that in 1896 out of 148,148 sentences passed, 111,586 were for four weeks or under, 59,566 for two weeks or under, only 1,696 had sentences of twelve months or over. Could anybody dream of effecting in a month or a week that radical alteration in a lad or a young man of his habits of thought which is involved in the word 'reformation '--still more in an older man whose whole course of life has been passed among those who habitually evade or defy the law and have no principle or motive of action to induce them to do otherwise?
Our criminal laws were in fact made for the most part before the idea of reformatories was common, or at all events have been framed in direct descent from the laws of those times, and are adapted only to the idea that the period will be one of deterrent punishment -deterrent on the individual and still more as an example.
But, say the advocates of root and branch change, the penal system does not deter the individual subjected to it, and they point to the number of prisoners who in spite of punishment again commit crime. They ignore, however, the very much larger proportion who are deterred by their first punishment. The Departmental Committee in 1894 presented a return which showed that 70 per cent. of persons sentenced to imprisonment never are heard of as criminals again, and about half the remainder are cured after a second course of the