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.