"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 calculated 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."
The views of the Lord Chief Justice on the value of Police Supervision, and Ticket-of-Leave, and the aspect from which he regarded the value of the Irish Intermediate System attracted much attention at this time. He stated:—
"Those who advocate remission, make supervision an essential element in their system, as necessary not only for the security of the public, but also for the protection of the convict himself when first set free and exposed anew to temptation. But it may be questioned first, whether supervision is practicable; secondly, whether, if practicable, it is not more mischievous than beneficial. There can be little doubt that by change of name, and change of locality, which, as we have just seen, is largely resorted to for this purpose, holders of Tickets-of-Leave can without much difficulty elude the vigilance of the police; and no adequate means have been suggested for satisfactorily overcoming this difficulty. But a far more serious objection arises from the fact that, at least in this country, any supervision by the police, or other officer appointed for the purpose, would be fatal to the convict's chance of employment, on which his continuing in the right course, if so disposed, so materially depends. Police supervision is incompatible with the concealment of the man's antecedents, while, in the great majority of instances, the well-doing of the convict must depend on his secret being kept. Few masters would employ a man who was known to be a convicted felon, and an equal obstacle would be found in the disinclination of other labourers to be associated with one thus degraded. It would seem, therefore, that if remission is to be continued, it would be better that it should not be attended by any attempt at supervision, the beneficial effects of which, from the difficulty of carrying it out, are doubtful, while its mischievous tendency, so far as relates to the welfare of the convict, is apparent. It would seem to be better to leave the liberated convict to take his chance of finding employment and making his way as he can, than to fetter him with a clog which may prevent the possibility of honest exertion."
It was in consequence of the Report of the Commission that in 1864 an Act was passed raising the minimum sentence of Penal Servitude from three to five years. The Act also authorized any two or more Justices of the Peace to exercise powers of corporal punishment for offences against Prison discipline, hitherto vested exclusively in one of the Directors, the Commission of 1863 having expressed the opinion that acts of violence committed by convicts were not punished with sufficient promptitude or severity. This measure also enacted the principle that a convict on licence should report periodically to the Police of the district in which he should reside, and any failure to comply with the conditions imposed in the licence might result in its forfeiture, and in the re-committal of the holder to Prison.
As a result of this measure, the Progressive Stage System, through which convicts passed on their road to remission, was further defined and elaborated, and the Mark System as now in operation was instituted. Every convict was required to earn by actual labour a certain number of marks, proportioned to the length of his sentence, to enable him to purchase, as it were, any remission of sentence, or to advance from the lower to the higher class. Although misconduct would involve a forfeiture of marks, the marks are allotted simply for actual industry, as shown by the amount of work done, and are checked by the actual measurement of the work, where such is possible. The Directors, in their Report for 1865, comment on the introduction of the system as follows:—
"The value of the Mark System when honestly administered is, that it gives a tangible idea to the convicts of the value of their daily labour, and our endeavour has been to impress upon them that they must earn these marks to gain the advantages held out to them of remission of sentence and advancement in classes. Like any other system of recording the conduct and industry of convicts, the Mark System requires careful watching, to prevent it from degenerating into mere routine, and to avoid favouritism or intimidation. We have under existing circumstances the advantage that the convicts are employed in important Public Works, which admit of accurate measurement and valuation; and we think the checks we have adopted are sufficient to guarantee that whatever the convicts do earn will be earned by fair labour accompanied by good behaviour. It is very satisfactory to us to state, that although none of the officers of the English Convict Prisons had any previous experience of the working of the Mark System, which might naturally be expected to be regarded with some kind of suspicion, its success has far exceeded our expectations. The Governors and the subordinate officers have devoted themselves very zealously to master the principles and details of the Mark System, and have entered into the spirit of the measure with great zeal, and the testimony of the Governors to the beneficial results on the labour and industry of the convicts is very gratifying. The convicts themselves take a lively interest in the account of their marks, which they watch with earnestness, and fully avail themselves of the privilege of bringing before the Directors any grievance they think they have respecting them."
The Mark System, as then introduced, has remained in operation ever since, and may be regarded as the fundamental principle of the Penal Servitude System. We have not at our disposal to-day the same amount of "Public Work," strictly so-called, i.e., buildings, harbour-making, &c., and the allocation of marks cannot be checked to the same degree by actual measurement of work done, but the record of daily industry, whatever the employment may be, is strictly kept. The gain or loss of marks, either for remission or stage, constitutes the reward or punishment lying at the root of convict discipline. As will be explained in a later Chapter, this has been applied also to the Local Prison System, mutatis mutandis, in common with many other features in the Convict Prisons, which, previous to the Prison Act, 1877, were alone under the direct control of the Government.
At the same time a considerable reduction was made in the large amount of gratuity paid to convicts, and the maximum earnable was reduced to £3, irrespective of length of sentence, with power to grant a further bonus of £3.
The changes resulting from the Royal Commission of 1863, and the Penal Servitude Act of 1864, were generally satisfactory as tested by the number of persons sentenced to penal servitude. The Authorities reported in 1871 that there was good reason to believe that great progress had been made in solving the difficulty of forming an effective system of Secondary Punishment. Although in that year there was a considerable increase in the number of reconvictions to penal servitude, this was due to an alteration in the law brought about by the Habitual Criminals Act, 1869, and the Prevention of Crimes Act, 1871, by which greater facilities were given to the Police for the detection of habitual criminals, the proportion of recommittals depending more on the activity of the Police and means of identification at their disposal than on any changes in the Prison System. The Act of 1871 provided that a person convicted a second time on indictment might be sentenced to be subject to Police Supervision for a number of years, not exceeding seven, after the expiration of his sentence. During such period he is required to notify his place of residence to the Police, and to report himself to them monthly, in default of which he is liable to imprisonment. The Act also imposed similar obligations and penalties on persons released from penal servitude, and, further, if it were proved that the convict was living dishonestly, he would be liable to be sent back to prison to undergo the remainder of his unexpired portion of penal servitude. The effectual supervision of a discharged convict, which resulted from these provisions, began to show itself in an increase both in the number of sentences to Penal Servitude and in the number of reconvictions. In the year 1876, these latter had nearly doubled during the past two decades, rising from 11 to 21 per cent.
At this time it appears that some disquietude arose in the public mind, both with regard to the alleged severity of discipline to which Penal Servitude prisoners were subjected, and also with regard to the contamination due to the association of all classes of convicts on public works. There was then no classification of prisoners sentenced to Penal Servitude, and all herded together, irrespective of age, antecedents, and habits. This disquietude led the Directors of Convict Prisons to suggest to the Secretary of State that an independent inquiry should be held into the Administration of Convict Prisons, feeling confident that any full and impartial inquiry would tend only to establish the soundness of the principle on which the Convict System was founded and the care with which it was administered. A Royal Commission was accordingly appointed in 1878, with Lord Kimberley as Chairman, and their Report marks another epoch in the history of Penal Servitude. The Committee advised an improved system of Classification by placing in a distinct class those against whom no previous conviction of any kind is known to have been recorded. This was the origin of the "Star Class" System, i.e., the formal separation of the First Offender from the rest, which is one of the peculiar features of the English Convict System. Since those days this system of classification has been greatly improved and extended, as will be shown later; but the "Star Class" represents the first and most practical attempt to introduce the principle of segregation of the better from the worse, which has since become so familiar as an essential condition of any well organized Prison System. The Commission approved generally of the rigour which had been introduced into the Penal Servitude System by the Act of 1864, and subsequent Acts, which imposed and facilitated stricter police supervision on discharge. They condemned, however, that provision of the Act of 1864, by which seven years was made the minimum sentence after a previous conviction for felony. They were, however, in favour of retaining the minimum of five years for a sentence of Penal Servitude.