Chapter XIII

THE ACT OF 1864--CLASSIFICATION OF PRISONERS--THE MARK SYSTEM: ITS DEFECTS--THE TRUE CRIMINAL LAW OF RESTITUTION--THE ONLY METHOD BY WHICH CONFIRMED CRIMINALS MAY BE RECLAIMED--WORKHOUSES.

The year 1864 was a marked epoch in convict life. A new Act was then passed and fresh prison regulations were brought into force. This Act contained one good clause, viz., the abolition of three and four years' sentences. In one year as many as 1800 men were sentenced to three and four years' penal servitude, being a large proportion of the total number. Such men are now for the most part sentenced to eighteen months and two years' imprisonment, which will account for a decrease in the number of convicts and an increase in the number of county prisoners. This is a short step in the right direction. The convict directors take credit to themselves for this reduction in the number of convicts, and boast that they have at last found the true panacea for criminal diseases. A report to that effect, cut out of a newspaper, was circulated amongst the prisoners, and their indignation was great at the way in which the public were "gulled" about themselves and prison treatment. No doubt a few more thieves and burglars are driven to pursue their callings in France and America by the operation of the new police regulations, and I freely admit that a few more may annually be sent into another world by the same means, but no one can yet point to a reformed professional "Cracksman," "Coiner," "Hoister," or "Screwsman," as proof of the beneficial results of the change. The most unpopular clause in the Act was that relating to police surveillance. The majority of the prisoners were very much annoyed at this regulation, some of them, indeed, would much rather have remained in prison than encounter it. For my own part, I approve of the principle of surveillance. I see in it the germ of a system whereby a large class of criminals may ultimately be punished entirely outside the prison walls. I object, however, to the police being entrusted with the duty. Their proper business is to catch the thief and preserve order. The surveillance of liberated prisoners ought to be entrusted to those who are directly interested in empty jails, and who would endeavour to assist the liberated men either in getting employment or to emigrate.

With reference to the _classification_ of prisoners which commenced under the Act of 1864, I have no hesitation in saying that it is a gross fraud upon the public, a delusion and a snare. The error which I pointed out in a former chapter, as being committed in the selection of convicts for transportation, is here repeated and in a more aggravated form, if that were possible. By the new Act the prisoners were divided into four great classes. Into the fourth, or "probation class," all prisoners were required to enter on being admitted into prison. After a certain time, if the prisoner was so fortunate as to escape being "reported" for any offence against the prison rules, he would be placed in the third class, and again, after being a certain time in the third class he was passed, subject to the same condition, into the second, and so on. Should he have made any mistake and allowed himself to get "reported," he either missed his chance of getting into the higher, or was degraded into a lower class. The object of this classification no doubt was to get all the well-behaved men together, but the blunder committed was in making obedience to the prison rules the only test of qualification for the higher classes. This, as I have already explained, was really worse than no test at all, because the frequently convicted criminal, who was thoroughly posted up in all points of prison discipline and regulations, was more likely than the novice to escape being "reported" for violation of them. The consequence is, that in respect of character, disposition and moral quality, there is really no difference to be found amongst the men in any of the classes. The scheme operates in this way--suppose that a clergyman by some mischance gets sentenced to penal servitude, and enters the prison in company with one of the very worst villains that could be selected out of our criminal population; both these men, the one with a first sentence, the other with a long string of convictions against him, enter the "probation class" at Millbank, on precisely the same terms. The "jail bird," knowing all about the ways of the prison, would probably pass with ease into the third class. The clergyman, being new to the discipline, might make a mistake and get "reported," and in that way would not be so likely to reach the third class so soon as the other; but granting that he did so they would still be together, the man inured to guilt and crime would still be beside the new and casual lodger, the man who had never been in prison before would still have the opportunity of learning the evil ways of the confirmed rogue. Again, should the clergyman be fortunate enough in passing into the higher classes at the usual time, the jail bird would certainly not be behind.

If a thousand prisoners, from all parts of the country, of all ages, habits, and antecedents, were brought to one of our convict establishments, they would go through their time in the same way, good, bad, and indifferent, all together. The clergyman, even if he were to get into prison innocently, and were the best Christian in the world, would never get rid of the jail-bird; and in the highest class his companions would be no better than those in the lowest.

I grant that our directors could not classify convicts according to their real merits, any more than a quack doctor could classify patients suffering from disease; but although they cannot have the knowledge necessary to do it properly, they might do a little in the right direction. The quack, even, would know cholic from consumption, diarrhæa from dropsy; so any man of sense would be able to distinguish between a case of chronic moral disease and a case of partial or temporary paralysis of the moral faculty!

The system of "marks," as it is called in prison, is the most prominent feature in the new regulations, and is based upon the same absurd principle as the classification clause. The rule relating to marks specifies "That the time which every convict under sentence of penal servitude must henceforth pass in prison will be regulated by a certain number of marks, which he must earn by actual labour performed before he can be discharged."

The method adopted is to debit the prisoner with a certain number of marks, according to the length of his sentence, and if he performs the whole of the work required of him he is credited with as many marks as would represent a fourth part of his sentence.

If this law were carried out in its integrity it would be most cruel and unjust. Fortunately for the prisoners it is not very strictly adhered to--at least not at the prison where I was confined--the officers making allowance for the prisoners' infirmities. To show how it would operate, let us take the case of the clergyman and the jail-bird once more. Assuming that the former was a stout and healthy man, and able to work, but not having been accustomed to it, really not able to do much of it, and that the latter had been at the work for years--which would win in the race for liberty, if the law was strictly enforced? The probability is that the clergyman would not earn a single day's remission, whilst the jail-bird would get one-fourth of his time remitted; and assuming that both had the same sentence originally, would go a considerable way into a "fresh bit" before the poor clergyman had finished his first sentence.

The "mark" system admits of great cruelty being practised, but on the whole, as it is carried out, it is a more innocent piece of deception than the classification. At the public works, however, there is much injustice done by it, no allowance being made for a sick man, unless he has met with some accident. If the "marks" were money, _bonâ fide_ sovereigns, and if the prisoner were permitted to exercise the abilities God has given him in order to earn that money, there might be some sense and justice discernable in the system. As it is there is neither.

I may here venture to say that we might materially diminish crime and expense connected with the prosecution and punishment of criminals by doing away with our convict establishments altogether, except for the confinement of political prisoners, and those having sentences for life. In lieu of these I would suggest the introduction of the system of remissions into our county jails, granting first offenders a liberal, and third and fourth, an extremely small allowance. Teaching the prisoners such trades as they are fitted for, qualifying them for colonists, and selecting the most suitable for emigration. I would also place the jails and workhouses under one management. Commissioners for the prevention of crime and pauperism in each county, and subject them to a rigid government inspection by a board responsible to Parliament and the nation.

But even this would only be a partial reform. I would have our criminal laws based upon the old Mosaic principle of "enforced restitution," and carried out on the Christian principle of making the offender "pay the uttermost farthing." Then we could fairly and justly retain the idle and the useless in the net of justice, and allow the willing and industrious to achieve their own freedom by satisfying the claims of the law.

Now, when time has been strangled, and virtue repressed, we allow the worst villains to escape, and all that has been required of them in prison was civility to officers, obedience to a stupid discipline, and a few years' work which neither enables them to support an honest livelihood outside the prison, or contributes in any appreciable degree to their maintenance inside.

Under the system I propose, every man who stole a sheep would have to pay the same penalty before he could exercise the rights of citizenship--no matter whether his character was good, bad, or indifferent; no matter whether he was rich or poor, a peer or a peasant, the voice of impartial justice would say, "You have incurred the same debt to the State, and the same penalty must be paid."

At present every man who steals a sheep has to pay a different penalty. This man is sentenced to six months, that other to twelve months, and then another to fifteen years of penal servitude, according to the discretion of the judge; and instead of being made to pay the price of the sheep and the costs of his prosecution, he becomes a grievous burden to the honest tax-payer, who has to supply him with chaplains, schoolmasters, surgeons, cooks, bakers, tailors, and a whole host of servants in livery to minister to his wants, and so unfit him for the practice of economy, frugality, and other kindred virtues when his fetters are cut. Under a law based on the principle of restitution, the man of good character and industrious habits might be able to find sureties to enable him to discharge his debt to the State under the surveillance of the authorities, without being surrounded by prison walls. The man of middling character might only have a limited amount of liberty, such as the responsible authorities might grant him. Whilst the man of bad character would have to discharge his debt inside prison walls, where he might still continue a villain in habits and heart, and increase his debt by fresh acts of dishonesty; but this would be his own fault, and the safety-valve of the machinery.

But to return to the Act 1864. If the labour performed under the "mark" system was either remunerative, or such as a convict might obtain an honest living at when liberated, the system could not be condemned as utterly bad. But if we except the tailoring and the shoemaking done for the use of the establishment, there are really no other employments suitable for the general class of men who find their way into prison. The professional thief--and I am now speaking of the _reformation_ as well as the punishment of criminals--requires to be taught some trade for which he has a natural aptitude before it is possible for him to gain a livelihood, and he must be taught it well, for unless he is a skilled workman he would not be worth the wages necessary to keep him out of temptation. To go on punishing such men in the hope that we will make them honest, is absurd; and to persevere in "reforming," them without teaching them practically that which is indispensable to their remaining honest, is equally ridiculous. We may train a boy to be a labourer of almost any sort, and can impart moral and religious instruction to an unformed mind with success, but if we attempt to do either of them with a confirmed thief who has not been taught to work, we must be disappointed in the result. The _first_ step to reformation, is to interest him in some employment suitable to his abilities, and any other step taken before this only hinders or prevents the work of reformation. We have never yet taken this first step, consequently we have never yet succeeded in reforming any of them. It is also essential that such work should be also well paid, and that the money made at such employment should be his passport to liberty. Under the present system we only make him kill time at labour which disgusts him with all kinds of regular industry. The county prison sentences are, moreover, too short to enable the thief to earn such a passport to freedom, but they are of just the requisite length and fitness for turning the casual into the confirmed criminal. In fact, _time_ sentences are not suitable for confirmed thieves. Their sentences ought to be so much money to be earned in a penal workshop, where honesty and economy could be practised as well as industry. There are two grave objections urged against teaching thieves lucrative trades. Firstly,--it would tempt others to commit crime; and secondly, it would interfere with free labour. With regard to the first objection, I admit there would be some force in it if the sentences were such as they are now, because time runs on, whether the prisoner is industrious or not. But if the sentence imposed a fine in addition to all the expenses incurred by the prisoner during his incarceration, there would then be no inducement to the commission of crime. With reference to the second objection, I would merely state that all labour done in prison of a useful character interferes with free labour to some extent, but I contend that if each prisoner was employed at that kind of work for which he is best qualified, it would interfere less with the proper and necessary division of free labour than the present plan of keeping a large number of men employed at work for which they have no special aptitude.

The error we have made in employing prisoners hitherto is not merely that we have employed them at trades or other employments not suitable to their natural abilities, but that we have entered into competition with those trades where too much competition already exists. We should never have allowed smart young pickpockets to compete with poor sempstresses, whose ranks are already overcrowded. There will always be plenty of honest people descending in the social scale to do underpaid work, and there are thousands of petty thieves who are not fit for any other. So that there is a greater need for elevating the clever professional thief to the position of a skilled artisan.

The city bred thief class are far from being dunces or "flats," and it is not possible to make them common labourers. Many of them may very fitly be compared to the idle and dissipated "swells" of the middle and higher classes. If we took a "fast" young nobleman, for instance, and put him to some office agreeable to himself, so that he conceived a decided liking to harness, it would do him a deal more good in the way of reforming him than a course of lectures on the seventh commandment! And assuming that by so doing he enticed other "swells" to buckle on official armour, it might interfere with the prospects of some who had never been "fast," but on the whole, society would benefit by the change. I maintain that that would be the correct method to adopt with some of those thieves who are totally irreclaimable by our present system of prison discipline. With regard to the casual and petty thieves, their case is somewhat different. Many of them could not be raised above the lowest class of common labourers, but by adopting a system of individualization, that is studying each man's natural abilities, we could always arrive at the best results. It might be advanced as a third objection, that it would be impossible to make thieves pay their expenses in prison, and a fine in addition. Under our present system I admit it would be very difficult, but in the penal workshops, into which I would turn all our prisoners, this objection would not hold good. The prisoner would then be stimulated to labour at paying work agreeable to his tastes and suitable to his abilities, and the cost of his maintenance would be less than it is at present. Those who really could not earn a living in the penal workhouses, and those who would not earn their living, I would transfer to the prison for criminal incurables. I would not have any first offenders against property in prison, I would punish them as ticket-of-leave men. In the penal workshops I would only have persistent thieves. In the convict prisons only great offenders against the person and traitors. All the persistent criminals of the petty class, I would consign to the workhouses; but the character of our workhouses would require to be altered. There are three distinct classes of paupers. (1) Those who have become paupers through no fault of their own. (2) Those who have become paupers through vice; and (3) The vagrant class. I would refuse admission to the workhouse to the first class, just as I would refuse admission to the prison in the penal workshops to first offenders against property. I would treat them, on the family system of out-of-door relief, as the deserving poor. The second class I would admit into the workhouse, and the vagrant class as well, but on the understanding that they did not get out again till they had paid their bill. In short we ought to make our prisons and our workhouses paying concerns, and with the former there need be no difficulty whatever; above all we ought to keep the deserving poor from the other classes, and the regular thieves from those who have only erred once. Every man found guilty of crime who can prove that he has been working at an honest calling up to the time he committed it, should be prevented from mixing with confirmed criminals, or even from going into prison, unless for some great crime against the person for which enforced restitution would not be a sufficient atonement.