We have seen that were the injunctions of absolute morality obeyed, every transgressor would be compelled to make restitution or compensation. Throughout a considerable range of cases, this would itself involve a period of restraint varying in proportion to the magnitude of the offence. It is true that when the malefactor possessed ample means, the making restitution or compensation would usually be to him but a slight punishment. But though in these comparatively few cases, the regulation would fall short of its object, in so far as its effect on the criminal was concerned, yet in the immense majority of cases—in all cases of aggressions committed by the poorer members of the community—it would act with efficiency. It would involve periods of detention that would be longer or shorter according as the injury done was greater or less, and according as the transgressor was idle or industrious. And although between the injury done by an offender and his moral turpitude, there is no constant and exact proportion, yet the greatness of the injury done, affords, on the average of cases, a better measure of the discipline required, than do the votes of Parliamentary majorities and the guesses of judges.
But our guidance does not end here. An endeavour still further to do that which is strictly equitable, will carry us still nearer to a correct adjustment of discipline to delinquency. When, having enforced restitution, we insist on some adequate guarantee that society shall not again be injured, and accept any guarantee that is sufficient, we open the way to a self-acting regulator of the period of detention. Already our laws are in many cases satisfied with securities for future good behaviour. Already this system manifestly tends to separate the more vicious from the less vicious; seeing that, on the average, the difficulty of {183} finding securities is great in proportion as the character is bad. And what we propose is that this system, now confined to particular kinds of offences, shall be made general. But let us be more specific.
A prisoner on his trial calls witnesses to testify to his previous character—that is, if his character has been tolerably good. The evidence thus given weighs more or less in his favour, according to the respectability of the witnesses, their number, and the nature of their testimony. Taking into account these several elements, the judge forms his conception of the delinquent’s general disposition, and modifies the length of punishment accordingly. Now, may we not fairly say that if the current opinion respecting a convict’s character could be brought directly to bear in qualifying the statutory sentence, instead of being brought indirectly to bear, as at present, it would be a great improvement? Clearly the estimate made by a judge from such testimony, must be less accurate than the estimate made by the prisoner’s neighbours and employers. Clearly, too, the opinion expressed by such neighbours and employers in the witness-box, is less trustworthy than an opinion which entails on them serious responsibility. The desideratum is, that a prisoner’s sentence shall be qualified by the judgment of those who have had life-long experience of him; and that the sincerity of this judgment shall be tested by their readiness to act on it.
But how is this to be done? A very simple method of doing it has been suggested.[8] When a convict has fulfilled his task of making restitution or compensation, let it be possible for one or other of those who have known him, to take him out of confinement, on giving adequate bail for his good behaviour. Always premising that such an arrangement shall be possible only under an official permit, to be withheld if the prisoner’s conduct has been unsatisfactory; and always premising that the person who offers bail shall {184} be of good character and means; let it be competent for such a one to liberate a prisoner by being bound on his behalf for a specific sum, or by undertaking to make good any injury which he may do to his fellow-citizens within a specified period. This will doubtless be thought a startling proposal. We shall, however, find good reasons to believe it might be safely acted on—nay, we shall find facts proving the success of a plan that is obviously less safe.
[8] We owe the suggestion to the late Mr. Octavius H. Smith.
Under such an arrangement, the liberator and the convict would usually stand in the relation of employer and employed. Those to be thus conditionally released, would be ready to work for somewhat lower wages than were usual in their occupation; and those who became bound for them, besides having this economy of wages as an incentive, would be in a manner guaranteed by it against the risk undertaken. In working for less money, and in being under the surveillance of his master, the convict would still be undergoing a mitigated discipline. And while, on the one hand, he would be put on his good behaviour by the consciousness that his master might at any time cancel the contract and surrender him back to the authorities, he would, on the other hand, have a remedy against his master’s harshness, in the option of returning to prison, and there maintaining himself for the remainder of his term.
Observe, next, that the difficulty of obtaining such conditional release would vary with the gravity of the offence which had been committed. Men guilty of heinous crimes would remain in prison; for none would dare to become responsible for their good behaviour. Any one convicted a second time would remain unbailed for a much longer period than before; seeing that having once inflicted loss on some one bound for him, he would not again be so soon offered the opportunity of doing the like: only after a long period of good behaviour testified to by prison-officers, would he be likely to get another chance. Conversely, those whose transgressions were not serious, and who had usually been {185} well-conducted, would readily obtain recognizances; while to venial offenders this qualified liberation would come as soon as they had made restitution. Moreover, when innocent persons had been pronounced guilty, as well as when solitary misdeeds had been committed by those of really superior natures, the system we have described would supply a remedy. From the wrong verdicts of the law and its mistaken estimates of turpitude, there would be an appeal; and long-proved worth would bring its reward in the mitigation of grievous injustices.
A further advantage would by implication result, in the shape of a long industrial discipline for those who most needed it. Speaking generally, diligent and skilful workmen, who were on the whole useful members of society, would, if their offences were not serious, soon obtain employers to give bail for them. Whereas members of the criminal class—the idle and the dissolute—would remain long in confinement; since, until they had been brought by habitual self-maintenance under restraint, to something like industrial efficiency, employers would not be tempted to become responsible for them.
We should thus have a self-acting test, not only of the length of restraint required for social safety, but also of that apprenticeship to labour which many convicts need; while there would be supplied a means of rectifying sundry failures and excesses of our present system. The plan would practically amount to an extension of trial by jury. At present, the State calls in certain of a prisoner’s fellow-citizens to decide whether he is guilty or not guilty: the judge, under guidance of the penal laws, being left to decide what punishment he deserves, if guilty. Under the arrangement we have described, the judge’s decision would admit of modification by a jury of the convict’s neighbours. And this natural jury, while it would be best fitted by previous knowledge of the man to form an opinion, would be rendered cautious by the sense of grave responsibility; inasmuch as {186} any one of its number who gave a conditional release, would do so at his own peril.
And now mark that all the evidence forthcoming to prove the safety and advantages of the “intermediate system,” proves, still more conclusively, the safety and advantages of this system which we would substitute for it. What we have described, is nothing more than an intermediate system reduced to a natural instead of an artificial form—carried out with natural checks instead of artificial checks. If, as Captain Crofton has experimentally shown, it is safe to give a prisoner conditional liberation, on the strength of good conduct during a certain period of prison-discipline; it is evidently safer to let his conditional liberation depend not alone on good conduct while under the eyes of his jailors, but also on the character he had earned during his previous life. If it is safe to act on the judgments of officials whose experience of a convict’s behaviour is comparatively limited, and who do not suffer penalties when their judgments are mistaken; then, manifestly, it is safer (when such officials can show no reason to the contrary), to act on the additional judgment of one who has not only had better opportunities of knowing the convict, but who will be a serious loser if his judgment proves erroneous. Further, that surveillance over each conditionally-liberated prisoner, which the “intermediate system” exercises, would be still better exercised when, instead of going to a strange master in a strange district, the prisoner went to some master in his own district; and, under such circumstances, it would be easier to get information respecting his after-career. There is every reason to think that this method would be workable. If, on the recommendation of the officers, Captain Crofton’s prisoners obtain employers “who have on many occasions returned for others, in consequence of the good conduct of those at first engaged;” still better would be the action of the system when, instead of the employers having “every {187} facility placed at their disposal for satisfying themselves as to the antecedents of the convict,” they were already familiar with his antecedents.