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."