A substitute for transportation—Task entrusted to Colonel Jebb—Initiates Public Works' Prisons in England—Plans to assist in the construction of great breakwater at Portland—Rapid progress—Much useful work executed by the convicts—Old War Prison of Dartmoor prepared for convicts employed in the reclamation of savage moorland—New prison at Chatham for extension of the naval dockyard—Similar undertaking at Portsmouth—New system carried out conscientiously—First results satisfactory—The garroter—Insecurity of London streets—Discipline of penal servitude lax—Royal commission advocates new principles and insists upon greater severity—Strenuous industry enforced under the "mark" system—Favourable results.

Transportation beyond the seas ended when the British colonies positively refused to receive the penal exiles. One of them, Queensland, lately founded in Australia, which was supposed to be favourable, repudiated the idea entirely, and its citizens asked impertinently whether they might be permitted in return to transport their own malefactors to the British Isles. Then the geographers began to search for new lands suitable for penal settlements. One suggested the Falkland Islands, and another New Guinea, while Labrador was felt by many to be exactly the place for convict colonisation. Western Australia, as a matter of fact, did not object; it was a crown colony and could not protest, but it was never very largely utilised.

The excessive costliness of transportation was the principal demerit of this practice. A few figures will show this. As late as 1851, the gross cost for one year was £586,294 for passages out to the antipodes, establishments and staff, including the home depots, Bermuda and Gibraltar. There was a certain set-off in the value of the labour of the convicts, and when this had been credited, the net cost remained at £419,476. To arrive at any general estimate, this annual expenditure must be multiplied by the seventy years the system lasted. It cannot, of course, be denied that the product was Australia, a substantial section, no doubt, for the cash expended, but the evils entailed by the system must be taken into account, and modern feeling revolted from repeating the process even to gain such a large and prosperous dependency, provided additional territory was available. As we have seen, the territory did not exist. Thus the only alternative was to retain the convicts at home, to house and dispose of them as economically as possible, and at the same time utilise them effectively in such works and public undertakings as might reasonably be expected to bring in some adequate return.

The solution of the pressing problem was entrusted to Colonel, afterward Sir Joshua, Jebb, a distinguished officer of the Royal Engineers, who was already well known in connection with prison building and with penal legislation generally. He had for some years past been associated with the two official inspectors of prisons; after that he had assisted in the superintendence of Millbank, when constituting a convict depot, and he had been in reality the moving spirit of the commissioners who built the model prison at Pentonville. In those early years he gave undoubted earnest of his energetic character and great powers, a promise more than fulfilled. His proposal was to construct a great breakwater at Portland, largely assisted by the labour of convicts which was abundant and running to waste. He meant in the first instance to provide accommodation of some sort on the island of Portland wherein the convicts might be securely lodged immediately adjoining their works. He described, in a memorandum dated 1847, the style of place he proposed to build. Naturally, he said, when the works on which the prisoners were to be employed were likely to be completed within a limited time, something less costly than a substantial prison would suffice. Safe custody and the due enforcement of discipline must of course be secured; but these might be obtained without any very extravagant outlay. He suggested, therefore, buildings on wooden frames, with corrugated iron partitions; the whole so constructed as to be easily taken to pieces and removed to another site if required. In these buildings the convicts might be kept safe and separate, at the probable cost of little more than £34 per cell. Similar prisons might be run up anywhere, so that the entire number of convicts for whom accommodation was required might be housed for about two hundred thousand pounds. Colonel Jebb accompanied this proposal with certain figures as an off-set against this outlay. He assumed that the maintenance, including every item, would amount to £158,000, but their earnings would be £180,000. The balance was therefore a gain of £22,000—a sufficient interest on the original cost of the prison buildings. These figures were speculative, of course, nor were they found exactly accurate in practice; the cost of maintenance proved undoubtedly higher than thus estimated, but in return the earnings were also considerably more.

Three years later, in March, 1850, Colonel Jebb reported to the Secretary of State that he had provided room for eight hundred and forty prisoners at Portland. The main buildings consisted of four large open halls, eighty-eight feet long by twenty-one broad, having four tiers of cells on each side. The interiors of the halls were well ventilated and could be warmed; the cells were seven feet by four, and furnished with hammocks, tables and shelves for books. The cells were divided by partitions of corrugated iron, and were sufficient to secure the effectual separation of the men at night, and to admit of their taking their meals in them, and reading or otherwise occupying themselves after working hours, until they went to bed. In addition to the cell accommodation there was, of course, full provision for officers' quarters, chapel, kitchen, laundries and stores. Moreover, ample space was reserved "within the boundary wall for the erection of additional buildings, so as to increase the number of convicts to twelve or fifteen hundred, if it should be found necessary or desirable." Everything was now in fair working order. The foundation stone of the breakwater had been laid in July, 1849, by Prince Albert, who visited the prison and presented a Bible and prayer-book for use in its chapel; but till then, and during the first year of the occupation of a "bleak and barren rock" the convicts were chiefly employed in setting things straight within the prison walls. They had to level parade grounds, make roads and reservoirs, fit gates and doors, paint and clean up the whole establishment. As soon as practicable they were set to work on the breakwater. "The stone," says Colonel Jebb, "is to be removed from the quarries by means of several lines of railways, which are arranged in a series of inclined planes from the summit to the point where the breakwater joins the shore. The wagons will be raised and lowered by wire ropes, working on 'drums,' placed at the head of each 'incline,' the loaded train in its descent drawing up the empty one from the breakwater."

In the general detail of work, the share that fell upon the convicts was the plate-laying, levelling, forming embankments and excavations, getting out and stacking the stone, filling the wagons, sending them down and bringing them back from the incline. Some five hundred men were so employed during the first year, 1849, and their earnings were estimated at about fifteen thousand pounds.

Portland, when thus fairly launched, became the starting point for the new arrangements. Other prisons were needed, and they must be built like Portland. But time pressed, and anything actually available at the moment was eagerly pressed into the service. Down at Dartmoor, on the high lands above Tavistock, was a huge building which had been empty for five-and-thirty years. Its last occupants had been the French and American prisoners of war, who were confined there until the peace of 1814. Ten thousand, some said twelve thousand, had been accommodated within the walls—surely there must be room there for several hundred convicts? Colonel Jebb, hearing that Captain Groves, from Millbank, was staying at Plymouth, begged him to run over to inspect Dartmoor. The place was like a howling wilderness; the buildings in places were without roofs; the walls were full of holes, if not in ruins. But a few repairs would soon make the place habitable, said Captain Groves, and accordingly a gang of convicts, under Mr. Morrish, was sent down to begin operations. In a short time Dartmoor prison was opened. Then other receptacles were prepared. The hulks had been pressed into the service, and were employed at the various dockyards to house the convicts, but only as a temporary measure, until proper buildings on the new plan could be erected. There were ships at Woolwich, and others at Portsmouth. At the first station the old Warrior, and the Defence, took the able-bodied, while the UnitÉ served as a hospital; at Portsmouth there were the York, Briton and Stirling Castle, until 1852, when the new convict prison was occupied. Soon after this, contracts were entered into for the erection of a large prison at Chatham, which was completed in 1858, and to which all those at the Woolwich hulks were in course of time transferred. The intention at both these stations was to devote a goodly portion of the convict labour to further the dockyard extensions. At Chatham the object in view was to construct, high up the tortuous Medway, a chain of artificial basins capable of containing a fleet. Hither beaten ships might retire to refit; while new ironclads, built in the dock close by, might issue thence to retrieve disaster. From the first the work was of an arduous character. The battle was against the tide and the treacherous mud. But all of St. Mary's Island has been reclaimed, and marsh has given place to solid ground. At Portsmouth a feat has been accomplished, not exactly similar, but wonderful also in its way.

So much for the framework—the bones, so to speak, of the new system; let us see, next, something of the living tissues with which it was filled up. Speaking broadly, it may be laid down that the plan of treatment inaugurated by Colonel Jebb and his colleagues, was based on persuasion rather than coercion. This, indeed, they openly admitted. They were not advocates for a "purely coercive and penal discipline." They conceived that there was sufficient punishment without that; the convicts suffered enough in the "long periods during which they remained under penal restraint," and there was further discomfort in "their eventual deportation to a distant colony, and the somewhat severe restrictions to which they are subjected when they gain the boon of a ticket-of-leave," these regulations being drawn up at a time when transportation was still practised, though only to a limited extent. The directors of convict prisons hoped, therefore, to accomplish their object by reward and encouragement rather than by strictness and terror. They desired to put it plainly before every convict that if he would but continue quiet and obedient, he would be sure to benefit in the long run. It was really worth his while to be good, they said, and they encouraged him by the statement: "It will convince us that you are on the high road to reform, and the sooner we are convinced you are reformed, the sooner you will be set at large." Everything was made to depend on conduct—good conduct—in other words, the mere formal observance of rules, a submissive demeanour, and a readiness to echo, even with hypocritical hearts, the lessons the chaplains taught. The word "industry" was tacked on to "conduct," but only in a subordinate sense, and so long as the convict was civil he might be as lazy as he liked.

Precise rules provided the machinery by which a due estimate of each man's conduct was to be obtained. Every governor of a prison kept a character-book, in which he was to enter concisely his observations upon the character and conduct of every prisoner, so as thus to be enabled to reward him by classification and good conduct badges, and more especially "to report with confidence whenever he may be called upon in conjunction with the chaplain to assist the authorities in determining the period of detention of the different prisoners." The same rule went on to say, "He (the governor) shall take every opportunity of impressing on the prisoners that the particulars of their conduct are thus noticed and recorded; and that while no effort at good conduct and industry on the part of a prisoner will be disregarded by the authorities of the prison, every act of wilful misconduct and punishment will be equally noted, and will tend to prolong the period of his detention under penal discipline." The governor's opinion was to be endorsed by that of the chaplain, and even the subordinate officers were called upon to record their views of the demeanour of the prisoners they especially controlled. The whole object of this classification and this supervision was to "produce on the minds of the prisoners a practical and habitual conviction of the effect which their own good conduct and industry will have on their welfare and future prospects."

These extracts from Colonel Jebb's earliest reports will be sufficient to indicate the bias of his mind. He too, like others who had gone before, was hopeful of reformation by purely moral means. As he has himself declared in one of his reports, he thought he might more surely gain the great end he had in view by leading than by driving. Upon this principle the whole system of management was based. There can be no question that those who were its authors took their stand upon the highest ground. They were called upon to inaugurate a new order of things, and they did so to the best of their ability, in the most straightforward, conscientious fashion. The glaring evils of transportation, as it had been administered, were then still staring them in the face. "Speaking humanly," says Colonel Jebb, "the demoralisation of every individual sentenced to transportation was certain. No matter what might have been his previous character, what the amount of his constitution, or what the sincerity of his efforts and resolutions to retrace his steps, he was placed within the influence of a moral pestilence, from which, like death itself, there was no escape." The necessity for great and radical changes was imperative; and these changes were carried out in the manner I have described. Great results were expected to follow from them.

In the first few years everything appeared rosy. The reports continue: "As a body, the men show a spirit of willing and cheerful obedience. The strictest discipline is maintained with a very small proportion of punishment. The industry of the working parties is remarkable." Again, the same report asserts that "any candid and dispassionate inquiry into the condition and prospects of the convicts who have passed through periods of penal and reformatory discipline at Pentonville and Portland, will prove beyond doubt that, to say the least of it, the majority of those now serving are likely on their release to be respectable in their station of life, and useful to those who engage their services; thus realising the anticipations of the Pentonville commissioners, that a large proportion of our convicts would be qualified on their discharge to occupy an honest position in their own or any other country."

This was in 1852 and for the following ten years the new plans were persevered in with very general satisfaction. The public heard with pleasure of the notable results achieved. All indeed were a little weary of the subject of secondary punishment, and were content to leave the problem in the hands of officials whose duty it was to deal with it. How long this indifference might have continued it is impossible to conjecture, but all at once a panic fell upon people that was long remembered. It is only when touched by the sharp sense of personal insecurity that people are universally roused to take an interest in such affairs. The moment came when—in presence of a real or imaginary danger—England awoke to the fact that her penal system was all a mistake.

It was in the winter of 1862 that robberies with violence—garrote robberies, as they were called—suddenly increased to such an alarming extent, and were accompanied with such hideous details of brutality, that general consternation prevailed. The streets of London were less safe, said the leading journal, than a capital in the throes of revolution and under no government at all. No man could walk abroad, even in crowded thoroughfares, without feeling that he carried both his life and his money in his hand. Both might be wrested from him by an insidious malefactor before the victim was even conscious of his danger. On all sides instances of these treacherous assaults multiplied; and though varying somewhat in their method of execution, each and every one of them belonged unmistakably to the same class of crime. One day it was reported that a young lady of fifteen had been attacked in Westbourne Crescent in the afternoon. She was half throttled, and a pistol held to her head, while they rifled her pockets, and tried to tear off her necklace, and the pendants from her ears. Her head was to have been shorn, too, of its magnificent hair, which, as one of the ruffians cried, would certainly fetch a goodish sum; but just then the sound of approaching wheels frightened these human vultures from their helpless quarry. Next, a poor old woman, a feeble tottering creature advanced in years, was knocked down and wantonly maltreated for the half-dozen coppers she carried in her pocket.

These attacks were made at all hours and in all neighbourhoods. Daylight was no protection, nor were the crowds in a thoroughfare. One gentleman was felled to the ground in the afternoon near Paternoster Row, another in Holborn, a third in Cockspur Street. Later on, at night, the dangers, of course, multiplied a hundredfold. Poor musicians, tramping home after performing in some theatrical orchestra, were knocked down and robbed of their instruments as well as their cash. It was a service of danger to take the money at the door of any entertainment. A gang of garroters, for instance, had their eye on Michael Murray in the early part of the night as he stood at the door of the Teetotal Hall in Chelsea, and as soon as he left for home, they followed with stealthy step till they overtook him in Sloane Square, and knocked him down, having first throttled and rifled him. If you stood still in the street, and refused to give a drink to any man who accosted you, he would probably then and there give you a hug. Those who took a delight in attending public executions did so at their own peril. A Mr. Bush, who was standing in front of the Old Bailey when Cooper was hanged, was hustled by several men, who first forced his hands up over his head, then unbuttoned his coat and stole his watch.

In every case, whether the victim resisted or surrendered, he was nearly certain to be shamefully ill-used. Now and then the biter was bitten, as when three men fell upon a certain foreign gentleman who carried a sword, and was a master of the art of self-defence; or when another, who knew how to hit out, was attacked by two ruffians, both of whom he knocked down. But as a general rule the victim suffered tortures. When down on the ground, as often as not he was kicked about the face and head, usually with savage violence; his teeth were knocked down his throat, his eyes closed, and he was left insensible, streaming with blood.

In most cases, there was every appearance that the outrage was deliberately planned beforehand. There were accomplices—women sometimes; and all were banded together like Hindoos sworn to the practice of "Thuggee." For months these crimes continued to be prevalent. Every morning's news chronicled "more outrages in the streets;" until, as the fogs of November settled down on the devoted heads of the honest inhabitants of London, men's hearts failed them for fear, and life in sequestered streets or retired suburban villas seemed hardly worth an hour's purchase. Every journal teemed with complaints; Punch took up the question with grim humour; at the theatres audiences roared at some amusing actor, then shuddered to think they had still to get home after the play was over.

At length the horrors of garroting culminated in the arraignment of a crowd of such offenders in one batch at the central criminal court. There were twenty-seven of them. The cases of all bore a certain family likeness: though differing somewhat in detail, there was in each the same insidious method of attack, followed by the same brutality and wanton violence. Speaking to the most hardened, the judge, Baron Bramwell, said, as he passed sentence, that it was his belief that they were "utterly destitute of morality, shame, religion, or pity, and that if they were let loose they would do what any savage animal would do, namely, prey upon their fellows." Therefore he was resolved to keep them out of mischief as long as he possibly could. All got heavy sentences, ranging from "life" downward, and all were consigned to prison, where they are still well remembered—strong, able-bodied, determined looking scoundrels; top-sawyers in the trade of thieving, ready for any kind of daring work, treating their incarceration with the utmost contempt, as indeed they might, for it was nothing new to them. One or two had graduated in crime during the days of the Penitentiary; but neither Mr. Nihil, then the chaplain-governor, nor any one else had succeeded in reforming them. One of them, Leats, had actually at one time been a prison officer, a warder. Formerly a soldier in the marines, his career had been checkered. He had been present at the siege of St. Jean d'Acre, and was at that time servant to the admiral, through whom he obtained a situation at Millbank, from which he was soon dismissed for drunkenness. After this he went rapidly to the bad; was caught, and sentenced for obtaining goods under false pretences, next for robbing a lady at Richmond Park, and now for the third time he entered prison as a garroter. Although they maintained throughout, from the moment of their capture, in the dock and after sentence, an insolent and defiant demeanour, yet in the prison these murderous rogues conducted themselves fairly well; only two of them got into serious trouble. These were Dixon and another, Needham, who together made a vigorous attempt to escape. Dixon cut out, by means of a sharpened nail, the panel in his cell door, unbolted it, got out, and then set Needham also free. Their idea was to surprise the night patrol, and seize his keys. With this object they concealed themselves behind a passage door, and as he appeared struck him behind the ear. Fortunately the blow fell light, and the officer turned to grapple with the prisoners.

Such were the men, and such the work they did. Was it strange that the public should complain of a system of penal repression which left them to the tender mercies of ruffians like these? Transportation had been abandoned and what had been given them in exchange? A system which, as administered, had completely failed. It may have been a necessity, but it clearly had not been a success. They might perhaps be compelled to retain, or even to extend it; but its administration must be altered. As it was it had no terrors whatever for the evil-doer, while it gave but little protection to society. So said the Times; and it spared no pains to support its views with tangible evidence. Its columns teemed with letters on the subject, and special correspondents visited the chief convict establishments to spy out their nakedness and report their inefficacy as places for the punishment of criminals. Convicts, it was agreed on all sides, quite scoffed at the terrors of penal servitude. Barring the loss of actual liberty, which is doubtless the dearer to a man the closer he approaches to a lower species of animal, the convict prison was made so comfortable to the convict that he was loth to leave it, and hardly dreaded to return. Well-housed, well-fed, with labour just sufficient to insure good digestion and a healthy circulation; debarred only by a fiction of the luxuries he chiefly loved; let free from prison as soon as he chose to evince signs of amendment, a convict was altogether master of the situation. So said the critics. Penal servitude was like going down into the country after "the season." A little slow, perhaps; but very healthy and re-invigorating after a racket in town—just the discipline, in fact, to which men careful of themselves are ready to submit for a time, so as to issue forth afterwards braced and strengthened for a fresh campaign of pleasure. In these retired residences there was rest for the tired thief, for the burglar whose nerves had suffered, and for the playful miscreant who had been able only to half kill his victim, and who wished to recruit his strength. Here they found congenial society, such as a man meets at his club: others of his own set, with whom he could chat about the past, or concoct new plans for the future. His creature comforts were well looked after; he never worked as free labourers did, in the rain; and if, by mischance, he wet his feet, there were dry stockings for him on his return to his cosy well-warmed cell. If he had any special "whims" which called for gratification, an attentive official almost forestalled his wish. The leading feature of the whole system was to keep the convict comfortable and contented.

All this, and more, the panic-stricken public, speaking through the press, found fault with. Reform was called for, and immediate reform. The usual panacea was prescribed, a royal commission, which was that of 1863, long famous in British records as paving the way for the system of secondary punishment which, with various modifications, has existed to the present day. It was admitted on undoubted evidence that the rÉgime established by Sir Joshua Jebb erred on the side of overmuch tenderness to the criminal. Far-seeing and able as was Sir Joshua Jebb, however skilful and capable as an administrator, on one point he was weak. It was an amiable weakness, but it did both himself and his system incalculable harm. He had formed too high an opinion of the criminal class; he was too hopeful, too ready to accept the shadow for the substance, to be satisfied with promise rather than performance, and to view the outward whitewashed semblance of purity for the radical transformation of the inner man. This was the key-note of his system, and this, as time passed, grew and gained strength, till at least there was some semblance of truth in the allegations so freely made by his opponents. It became known, beyond contradiction, that the diet in those days was far too generous; that the care taken of the convicts was tender to the extent of ridiculous coddling; that the labour exacted was far below the amount that each might be expected reasonably to perform. These facts are fully borne out by the traditions of the department itself. Old officers have told me that in all the prisons discipline was almost a dead letter. The convicts themselves ruled the roost. They did not break away, because there were troops at hand who would shoot them down; but otherwise they did just what they pleased. Their warders, taking their cue from the supreme power, sought to humour them into obedience by civil speeches rather than by firmness and resolution. The officers were afraid to enforce their orders, and the convicts saw that they were afraid. Men who are over-fed, if they are also idle, are sure to prove untamable and run riot. Some of the scenes at the convict prisons were disgraceful, almost rivalling, at times, the anarchy and disorder of Norfolk Island. That the convicts were thus insolent and insubordinate was undoubtedly due to the petting and pampering they received. But another cause was the unsettled, dissatisfied spirit evoked by several successive alterations in the law—alterations which it was absolutely necessary to make, but which none the less produced unevenness of treatment between various classes of prisoners.

The net result was stated in the report, to the effect that the system was clearly not sufficiently dreaded by those who had undergone it, or by the criminal classes in general. The number of re-convictions, they thought, proved this; moreover, the report continues, "the accounts given of penal servitude by discharged convicts, and the fact that they generally come back so soon to their original haunts, tends to prevent its being regarded with fear by their associates. Indeed, in some (though doubtless exceptional) cases, crimes have been committed for the sole purpose of obtaining the advantages which the offenders have supposed a sentence of penal servitude to confer." The system therefore stood condemned, and the commissioners attributed its shortcomings in a minor degree to defects in the discipline maintained, but thought the blame lay really in the shortness of the terms of imprisonment awarded in the courts of law.

To speak first of the latter point: the commissioners reported that there had been a notable reduction for some years previous in the length of sentences, and to make them still lighter a remission of time was granted under the new rules. It was a curious fact that the recent increase of crime had corresponded in point of date with the discharge of prisoners who were first sentenced for short terms under the Act of 1857, and was probably mainly attributable to their release from custody. They had come out unchastened. "The discipline to which convicts are subjected," declared the commission, "does not produce its proper effect in short periods of punishment."

Next as to the discipline. It was clearly a mistake to lay so much stress on conduct only. It was wrong, too, that the convicts should be allowed to earn enormous "gratuities," the cash presents handed over to them upon discharge. Many left prison with £30, £40, sometimes £80, in their pockets. The effect of this was to make a sentence of penal servitude an object of desire, rather than of apprehension. Besides, the longer a man's sentence—presumably, therefore, the greater his crime—the larger the sum he was entitled to take away with him. Again, the measures to keep the prisoners in submission were far too mild. Punishment did not follow fast enough on acts of violence and aggravated misconduct. The infliction of corporal punishment was too restricted, and the "cat" used was too light. There should be more power to use it and greater promptitude in its infliction. Then came the question of work and diet; but on these points the committee spoke with less confidence. Last of all, there was an entire absence of supervision of those who were at large on ticket-of-leave.

Having enunciated these propositions, the commissioners recommended certain important changes in the manner of carrying out penal servitude, chief among which were:

That in future no sentence should be passed of less than seven years.

That re-convicted criminals should be treated more severely than others.

That convicts, after enduring separate imprisonment for nine months, should pass on to public works, where they might be permitted to earn by industry and good conduct an abridgment of a part of their imprisonment.

That all males, if possible, should be sent to Western Australia during the latter part of their sentences, "it being highly desirable to send convicts, under proper regulations and without disguise, to a thinly peopled colony, where they may be removed from their former temptations, where they will be sure of having the means of maintaining themselves by their industry if inclined to do so, and where facilities exist for keeping them under more effective control than is practicable in this country with its great cities and large population."

That all who were unfit to go, and, gaining a remission of sentence, were discharged at home, should while on license be subjected to close supervision by the police.

Such was the substance of the report. But it is right to mention here that the commissioners were not quite unanimous in the conclusions arrived at. Two of them, Mr. Henley and the Lord Chief Justice, would not sign the report. Mr. Childers put his name to it, but under protest. He could not agree to the proposals as to transportation. His view was that of Australia, and he was of opinion that "the measures recommended—while costly to the country and odious to her colonies—would at best afford only a brief delay in the solution of a question daily becoming more difficult."

By far the most important of the dissentient voices was that of Sir Alexander Cockburn, the Lord Chief Justice, who appended to the report a long memorandum giving his reasons for not concurring in it. After a careful perusal of this memorandum any one would, I think, be ready to concede that the Lord Chief Justice was nearer the mark than his colleagues. They hesitated to admit that the penal system was entirely defective. Sir Alexander Cockburn had no doubt of it, and maintained that the same impression was pretty generally abroad. But if there were faults in it, said the commissioners, then the administration of the law was to blame; it was too lenient. To this the Lord Chief Justice would by no means agree. The leniency of the judges, as it had shown itself of late, was nothing. "The spirit in which the law is administered," he observed, "is not the growth of yesterday. It has arisen gradually out of the more humane and merciful disposition of men's minds in modern times, whereby punishments inflicted without scruple in former days would now be regarded as cruel and inhuman." No; the inefficacy of penal servitude did not lie in the shortness or inequality of sentences, but in the manner in which the punishment was inflicted. "Moderate labour, ample diet, substantial gratuities," he maintained, "are hardly calculated to produce on the mind of the criminal that salutary dread of the recurrence of the punishment which may be the means of deterring him, and, through his example, others from the commission of crime."

And then the Lord Chief Justice proceeded to put forth the following pregnant sentences, which I quote in full. In taking up the question of punishment, he says, "It is necessary to bear in mind what are the purposes for which the punishment of offenders takes place. 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 likely 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."

By far the most important improvement that followed this report was the adoption of the "mark system;" in other words, of a method by which remission was to be regulated, not by conduct as heretofore, but solely by labour actually performed. For it must be understood that the commissioners unhesitatingly accepted the principle of remissions. In this they were at issue with the Lord Chief Justice, who thought that no prisoner should escape one particle of the whole sentence laid upon him by the judge. "It was most material," he said, "to the full efficiency of punishment that its infliction should be certain." The door was opened to doubt and uncertainty the moment the precise term of the sentence was interfered with.

The objection was cogent if the remissions were to be granted in a haphazard, capricious fashion and not by regular rule. But surely, if the scale were drawn up on a regular plan and worked without deviation, a sentence with remission might be just as certain as one without. The former might, perhaps, be shorter than the latter—the judges, being perfectly aware of the possible remission, would regulate their sentences in proportion to this abridgment. And, on the other hand, there was a clear and distinct gain to be expected from the practice of remitting sentences. This was fully recognised by the commissioners, who considered the hope of earning some remission the most powerful incentive to industry and good conduct which could be brought to act upon the minds of prisoners.

The commissioners perhaps laid more stress on good conduct than was absolutely imperative, although they pointed out, very pertinently, that "good conduct in a prison (apart from industry) can consist only in abstaining from misconduct, which gives no just claim for reward." But this harping upon good conduct was a weak point in their armour which the Lord Chief Justice quickly discovered. He would not admit the necessity for thus coaxing convicts into obedience by promising them an earlier release if they behaved well. That was no argument, he said, for remissions. Discipline ought to be strong enough to be independent of such questionable support. "I can see no reason to think," he continues,—"considering the powers of coercion, discipline, and reduction of diet, possessed by the prison authorities—that, by the application of firmness and determination with a sufficient force of officers, convicts, especially if not massed in too great numbers, but judiciously distributed, may not be kept under perfect control and discipline."

No doubt the commissioners over-estimated the necessity of remission as a means of insuring good conduct; but they were clearly in the right in recommending the principle as a certain incentive to industry. The experience, both of this and of other countries, has demonstrated that it is impossible to compel convicts to work hard by mere coercion, the attempt to do so having invariably failed, while it has produced a brutalising effect on their minds and increased their previous aversion to labour. On this ground the late Captain Maconochie many years ago recommended that the punishment to be inflicted on criminals should be measured, not by time, but by the amount of labour they should be compelled to perform before regaining their freedom; and he devised an ingenious mode of recording their daily industry by marks, for the purpose of determining when they should have a right to their discharge.

Captain Maconochie himself experimented on his own suggestions in Norfolk Island, but not with any great success. The state of Norfolk Island, indeed, was never such as to encourage experiments of any kind. It was really reserved for the officials who superintended the working of transportation in Western Australia to give the system its first practically successful trial. There a convict was allowed to earn by each day's labour a number of marks, and as soon as they amounted to a total previously calculated according to his sentence, he was granted a ticket-of-leave. Industry became the test, and not good conduct; the latter was only recognised by making misconduct carry with it a forfeiture of some of the marks already earned by industry.

The convict's early release was no longer a matter of certainty provided only that he avoided certain acts of rebellion, but it was made contingent on something he had to earn. His fate rested in his own hands; it was not to depend upon an opinion of his character formed by others. The success which was shown to have attended the adoption of this principle in Western Australia has been equally apparent in Great Britain. The mark system is the keystone, the mainspring of the latest British method of dealing with convicts, and the valuable results which have grown out of it, as now clearly apparent, will be set forth presently in the final chapter of this volume.