c. 10, it was enacted that none should be imprisoned by any justice

of the peace, but only in the "Common Gaol," saving the franchises of those who have gaols. Except in special cases the gaols were under the control of the sheriff, but the gaols which great noblemen and bishops were allowed to maintain must have been governed by these dignitaries, while the gaols which towns, liberties, or other bodies, having no sheriffs, were empowered by charter or otherwise to keep, must have been under the governing authorities of those bodies. By the 39th Eliz., another place of imprisonment was established for certain classes of offenders, under the name of "House of Correction," and 7 James 1. c. 4, directs that, in every county, such a house should be established, and means provided for setting rogues and idle persons to work. These establishments were under the justices. The custom gradually grew up of committing criminals of all classes to Houses of Correction, and was legalized by 6 Geo. 1. c. 19 and 5 & 6 Will. 4. c. 38. s. 3, by which latter Act even sentence of death might be carried out at these places; but debtors could still be committed only to the Gaol and vagrants only to the House of Correction; and though it became common to unite the two buildings under one roof, with one governing staff, the two superior jurisdictions of the sheriff and the justices over what was virtually one establishment were still maintained.

The title "House of Correction" was subsequently abolished by the Prison Act, 1865, and since that date "Local Prison" has been the official designation of the place of detention of persons sentenced to imprisonment. A "Convict Prison" is a place of detention for a person sentenced to penal servitude. There are fifty-six Local Prisons in which sentences of imprisonment are served, (though 14 have been temporarily closed during the war). They vary in size, from the large Local Prisons in London, Manchester and Liverpool, with an average population of 1,000 or more, to the small prisons in country districts with a daily average of less than 100. By the Prison Act of 1877, the entire management of these prisons was transferred from the various local jurisdictions to the State, and the cost incidental to their maintenance from the local rates to the Imperial Exchequer. They are vested in the Secretary of State for the Home Department, and are administered, subject to his approval, by a body of Commissioners appointed by the Crown.

Although by Common Law imprisonment only involves deprivation of liberty, yet by a series of statutes extending from the middle of the eighteenth century to the present day, the nature and methods of imprisonment have undergone successive modification. These I propose to trace shortly, so that the present system of imprisonment, in its two principal forms--"with," and "without hard labour"--may be understood. There is probably no legal phrase so imperfectly understood, or which in its application has been so embarrassing to the administration, or which has to a greater extent misled the Courts of law in assigning punishment, as the phrase "hard labour." By its comparison with the French "_travaux forcés_" it has created an impression in foreign countries that it is a very severe penalty, applied only for the greatest crimes; at home it obscures the principle that in prison all labour is hard, _i.e._, that all prisoners are punished with an equal prescribed task, whether they be sentenced to imprisonment with or without hard labour: and in penal servitude, where the manual labour is of the hardest, the phrase has no legal existence.

The reform of the English Prison System originated towards the end of the eighteenth century with the public exposure made by the great Howard on the deplorable condition of our gaols, and his statue in St. Paul's Cathedral fitly commemorates the gratitude of his country for the services he rendered to humanity. The story of his life is well known: how, being seized by a French privateer on his way to Lisbon in 1755, he was thrown into a dungeon at Brest, and so had personal experience of the horrors of imprisonment: how in 1773 the duties of his office as High Sheriff of the County of Bedford led him to inquire into the state of Prisons in England and Wales: how in 1774 he was examined by the House of Commons on the subject, and had the honour of receiving the thanks of that Body: how he devoted his later life to the inspection of prisons at home and abroad until his celebrated work on the "State of Prisons," published modestly at his own expense in a provincial town, awakened the public conscience to all the horrors of imprisonment; how, owing to his influence, not only statesmen, lawyers, and philosophers, but all the uninstructed public opinion of the day, now, for the first time, began to realize that the whole penal system was a scandal and a disgrace.

The Prison Act of 1778 is the beginning of the English Prison System. This measure, the result of the joint labours of Mr. Howard, Sir William Blackstone, and Mr. Eden, was due, not only to the newly-awakened interest in the treatment of prisoners, but to the political necessity for making provision for keeping our prisoners at home, which had resulted from the loss of the American Colonies. In this Act the principle of separate confinement with labour, and of religious and moral instruction, is clearly laid down and enforced. In the year 1781, a further Act was passed, making it compulsory for Justices to provide separate accommodation for all persons convicted of felony who were committed for punishment with hard labour, it being recited in the preamble to the Act that in the absence of such provision "persons sentenced for correction frequently grow more dissolute and abandoned during their continuance in such houses."

The principle of separate confinement having been thus recognized by Parliament, the Justices of some Counties, including Sussex and Gloucester, respectively, started the local prisons of Horsham, Petworth, and Gloucester, on the separate plan, and they furnish interesting historical record of the formal adoption in this country of a system which, a few years later, under American influences, became generalized throughout the civilized world.

The proposition of Mr. Jeremy Bentham for a new and less expensive mode of employing and reforming convicts, by the construction of a large establishment, called by him a "Panopticon," appears to have diverted public attention from the real end and object of imprisonment; and this proposition, being finally abandoned in 1810, led to the consideration of fresh plans, which ended in a system of so-called "_Classification_" as established in 1822, by the Act of 4th George IV., Cap. 64. Until Mr. Crawford's visit to the United States, separate confinement, though established in 1775, and only ceasing to be enforced when broken in upon by numbers for whom the accommodation was insufficient, appears to have been almost entirely lost sight of. An approximation to it existed at Millbank since the completion of that Prison in 1821, and a fair example of the system had been in operation at Glasgow since the year 1824. It is very doubtful, however, after the enormous expenditure made to effect classification, whether these traces of the system would have rescued it from oblivion without the aid derived from its practical development in the United States, and the concurrent testimony given in its favour by eminent men in France, Prussia, and Belgium.

By some curious growth of sentiment, which cannot be accurately traced, _Classification_ rather than _Separation_, became the leading idea of those interested in prison reform. Howard was quoted as the authority for Classification, but it must be remembered that Howard was chiefly moved by the physical suffering of prisoners, and, with him, classification did not mean much more than to separate the debtor from the felon, the guilty from the innocent, the men from the women, and the adult from the child,--and this by a system of separate confinement described in the Act of 1778. The classification in the sense in which it affected the movement of opinion in the first quarter of the last century went further than this. It seems to have assumed that if prisoners in the same categories, and, therefore, presumably of more or less the same moral characters, were associated together in common rooms or dormitories, no evil results were likely to follow, and facilities for labour, according to Bentham's ideas, would be greatly improved; and thus we find that in 1823, the Act of 4 Geo. IV., c. 64, in so far as discipline is concerned, gave effect mainly to this principle. Many extensive and important prisons were erected in conformity with this Act, notably at Maidstone, Derby, Westminster, Chelmsford, and Leicester, in which the Governor's house was usually placed in the centre with detached blocks of cells radiating from it. The average size of the cells was only about eight feet by five feet, with a day room and yard of proportionate size for each different class or category of prisoners. The only inspection was from the central building, and there was no interference with the unrestricted association of prisoners, and the greatest neglect, disorder, or irregularities might go on unperceived; and it soon became manifest that, to whatever extent classification might be carried, there was no moral standard by which it could be regulated, nor any limit short of individual separation that could secure any single prisoner from contamination. The mischievous effect of this Act was soon condemned by public opinion, and two Parliamentary inquiries were held in 1832 and 1836, which concurred in the strong opinion that more efficient regulation should be established in order to save all prisoners, especially the untried, from the frightful contamination resulting from unrestricted intercourse. It was at this time that the great controversy between the so-called "Silent" and "Separate" Systems sprang up in the United States, and its echo was felt throughout the civilized world. The rival systems of Auburn and of Philadelphia became the historic battleground in which was fought out the great and burning controversy which centred round the question of the proper treatment of prisoners, and established the importance of the now accepted principle that prison discipline shall be reformatory at least to this extent, _viz_:--that the prisoner shall not be exposed to contamination by his fellows. The Silent System at Auburn meant a separate cell at night, and work in association by day under a Rule of Silence. The Separate System at Philadelphia meant entire separation both by night and day. The criticism on the former was that the Rule of Silence could only be maintained by harshness and severity, and the criticism of the latter was that continuous separation for long periods was unnatural and bad, both for body and mind. Mr. Crawford, one of the newly-created Inspectors under an Act of 1835, was sent to America to examine and report upon the rival Systems. MM. De Beaumont and De Tocqueville went from France; Dr. Julius and M. Mittermeyer from Prussia; and M. Ducpetiaux from Belgium. All travelled at the same time through the United States for the same purpose, and their practically unanimous views in favour of the principle of separate confinement had a great effect on public opinion throughout Europe. In England, Lord John Russell, then Home Secretary, issued a circular to Magistrates calling attention to its advantages, and in 1839 an important Act was passed containing a permissive Clause to render it legal to adopt the separate confinement of prisoners. It was, however, an express condition that no cell should be used for such purpose "which was not certified to be of such a size, and ventilated, warmed, and fitted up in such a manner as might be required by a due regard to health." Also that a prisoner should be furnished with the means of religious and moral instruction, with "books and labour or employment." These were the first substantial steps taken in England since 1775 for establishing separate confinement. No prison in Great Britain, excepting perhaps that at Glasgow, was of a construction to enable magistrates to take advantage of the clause referred to. Lord John Russell, therefore, determined on the erection of a model prison at Pentonville.

It was completed in 1842, and a strong body of Commissioners was appointed by the Secretary of State to work out the great experiment. The Commissioners, in their Report for 1847, gave it as their final and deliberate opinion that the separation of one prisoner from another was the only sound basis upon which a reformatory discipline could be established with any reasonable hope of success. The satisfactory progress of the experiment, and the confidence of the public in the Commissioners, under whose superintendence the experiment had been conducted, led to a general desire for its adoption throughout the country, and within a very few years many Prisons which had been recently erected for a Classification System were altered.

In 1850, a Select Committee of the House of Commons, presided over by Sir George Grey, the then Home Secretary, expressed the opinion that, under proper regulation and control, separate confinement is more efficient than any other system which has yet been tried, both in deterring from crime and in promoting reformation, but that it should not be enforced for a longer period than twelve months; and that hard labour is not incompatible with individual separation.

The student of the English Prison System must be careful to bear in mind at this juncture that the Secretary of State was not, as he now is, the supreme head of all Prisons in the country. He only had control over prisons where persons sentenced to Transportation might be confined. Pentonville, therefore, was not a local prison to which prisoners of the Metropolis would be committed in the ordinary course, but was specially built in order that an experiment of the System of Separate Confinement might be made by the authority of the Government under the best possible direction and superintendence. The corpus on which this experiment was made were first offenders between eighteen and thirty-five sentenced to Transportation, for whom a period, not to be prolonged beyond eighteen months, should be one of instruction and probation, rather than of severe punishment before the convict was shipped to Van Diemen's Land. Everything was done to render the separation real and complete: exercise was taken in separate yards, and masks were worn to prevent recognition. While primarily the Pentonville system was applied to convicts only, and became in fact the basis of our penal servitude system, as explained in the former chapter, yet it led indirectly to the establishment of the separate system in Local Prisons throughout the country. Although the Secretary of State had no control over the administration of Local Prisons, yet, apart from the influence which the Secretary of State would naturally exercise in directing public opinion in such a matter, an Act of 1835 had made provision that all Rules framed by local Justices for Prisons should be subject to his approval; and the Act of 1844 authorised the appointment of a Surveyor General of Prisons to aid the Secretary of State by ensuring that due attention was given by local Authorities to the requirements of proper prison construction as prescribed by Act of Parliament.

Thus the Separate System became gradually established throughout the country, both for convicts in the early stage of their imprisonment, and for those committed to the County and Borough Gaols, although uniformity was very far from being established owing to the absence of any central control. It was this absence of uniformity which led later, as we shall see, to the complete centralization of the Prison System, which was effected finally by the Prison Act, 1877.

At the same time, two principal features of our prison system--Separate Confinement and Hard Labour--began to assume a definite shape at this period, which has been retained, subject to modification, until the present day. The duration of the period of Separate Confinement, and the regulation of the task of hard labour, consistently with cellular confinement, remained the problem of prison administration for many years, and cannot yet be said to be finally settled. There will be found running through all this period an earnest attempt to reconcile the claims of the two admitted objects of imprisonment, _viz_:--deterrence and reform. On the one hand there was strict separation, and on the other hand it was ordained that provision should be made in every prison for enforcing sentences of hard labour as enjoined by the Act of 1823, although that Act, as already stated, did not contemplate separate confinement, but a system of associated labour, and the word "Hard Labour" only assumed its narrow and technical meaning when the advocates of the Separate System, as the means of reformation, were unwilling altogether to lose sight of the necessity for some deterrence in the shape of hard work. The question thus arose, and was warmly agitated, as to how hard labour could be adapted to the cellular system, and we find great ingenuity expended in devising forms of labour, such as cranks and treadwheels, in which each prisoner occupied a separate compartment. These particular forms of labour were recognized as "hard labour" _par excellence_, and as necessary for the due punishment of the offender, consistently with his occupation of a separate cell by day and night. With these problems unsettled: with a strange and general ignorance of the true principles of punishment: with conflicting views and diverse authorities, it is not to be wondered at that, during the following years, our Local Prison System was in a very confused and chaotic state, although nominally professing adhesion to prescribed principles, until inquiry made by Committees of the House of Commons and House of Lords, respectively, into the state of Local Prisons, in 1850 and 1863, led practically to the modern Prison System.

The Committee of 1850 condemned the state of existing prisons in unmeasured terms, declaring "that proper punishment, separation, or reformation was impossible in them." They anticipated by a quarter of a century the legislation of 1877 by advising the establishment of a Central Authority for enforcing uniformity on the lines of Rules laid down by Parliament. They advised that the Separate System, as carried out at Pentonville, should be generally applied to all prisons, but not for a longer period than twelve months. No action was taken on this Report until, in 1863, a Committee of the House of Lords again condemned the want of uniformity of punishment and treatment of prisoners, and the bad construction of prisons. They again urged that separation should be the rule in all prisons, and strongly advocated greater severity as a means of making punishment really deterrent, and their proposition that prisoners should endure "hard labour, hard fare, and a hard bed," has become historical, and was translated into practice by the Prison Act, 1865, which, for the first time, gave legal sanction to the principle of uniformity, by enacting a code of Rules as a schedule to the Act. These Rules, having statutory authority, were only capable of alteration or repeal by Parliament itself. The great rigidity thus given to the System remained a barrier to real progress, and it was not until 1898, as I shall show later, that an elasticity was given to the System by the repeal of this schedule, by vesting in the Secretary of State the power to make Rules for the government of Prisons, subject to the condition that the new Rules should be laid formally before Parliament before they could be adopted.

However, the Act of 1865 was a great step forward. Prisons still remained under the control of the local Justices, but every prison authority was required to provide separate cells for all the different classes of prisoners. These cells were to be such as could be certified by an Inspector of Prisons that they satisfied all the requirements of the Rules. Elaborate provisions were introduced for regulating "Hard Labour," (a phrase carried on from early Acts of Parliament, framed before the days of scientific accuracy). It was divided into two classes: (1) the treadwheel, shot-drill, crank, capstan, stonebreaking, &c. (2) any other approved form of labour. All prisoners over sixteen were required to be kept to first class labour for at least three months, after which time they would qualify for the second class. Dietaries were to be framed by the Justices, and approved by the Secretary of State, and any Rule they might make was to be subject to the approval of the Secretary of State. If they failed to comply with the Act, the Secretary of State was able to stop the Treasury contribution towards expenses of the Prison. It was also authorised, for the first time, that a prison authority might make a grant in aid of prisoners on discharge. The Schedule to the Act comprises details of the Rules regulating the administration of the Act on matters of Prison treatment. The power of punishment was restricted to Justices and the Governor of the Prison, the latter having power to order an offender to be placed in close confinement for three days on bread and water; the former could order one month in a punishment cell, or, in the case of a convicted felon sentenced to hard labour, could order flogging. Regulations were also made for the use of irons or other forms of mechanical restraint. The important principle was enacted, which has since remained in force, _viz_:--that no prisoner may be employed in the discipline of the prison, or the service of any officer, or in the service or instruction of any other prisoner.

Many years had not passed before it was perceived that the uniformity of punishment at which the Act aimed was not being secured. It began to be perceived, and most quickly by the criminal classes themselves, that in the different localities the same effect was not being given to the same sentence. Distribution of power among so many Justices--some 2,000 in all--gave occasion to the exercise by them of different views and methods of punishment, with the result that no standard of treatment was maintained, applying equally to all prisons, and severity or leniency of treatment seemed to depend on the accident of the locality in which the offender was arrested. Inquiry showed, also, that the System, besides being inefficient, was extremely costly, and many unnecessary prisons were being maintained, and that local sentiment operated against any effective supervision or control on the part of the Central Authority. These causes, taken in conjunction with an active demand, which found expression in Parliament at the time for the relief of some of the burden of local taxation, led the Government of the day to adopt a policy of complete centralization of the Prison System of the country. This new policy, as embodied in the Prison Act, 1877, resulted then from two causes,--a desire to establish a system of equal and uniform punishment under the direct authority of the State, and, incidentally, to relieve the taxpayer of the burden of maintaining Prisons. It was not to be expected that the local Authorities, naturally jealous of their rights and privileges, would abandon the control of the Prison System without a severe struggle. But the great relief offered to local rates, amounting to about half-a-million pounds per year, was sufficient to overcome opposition. Eventually, the Act transferred the whole of the Prison establishments, and their contents, to the control of the Government. It created a body of Commissioners, appointed by Royal Warrant, to manage the new Department, and placed under them a staff of Inspectors, and of other officers, by whom the control of all those establishments was to be exercised. The Act compelled the local authority to hand over to the Government suitable and sufficient accommodation in each district, the test of sufficiency being the average daily number of prisoners maintained by the local authority during the five previous years. Where such accommodation was in default, the local prison authority was required to pay £120 for every prisoner for whom such accommodation was not handed over. At the same time, compensation was paid by the Government to the local authority which had provided a reasonable amount of accommodation in excess of the maximum of the average numbers received for the five preceding years.

Although the Justices lost their administrative powers, they remain in the shape of the "Visiting Committee," a body selected from the local Magistracy, as the judicial authority of Local Prisons, for hearing and determining reports against prisoners, and for the award of punishment. They also have large general powers of advice and suggestion; and the admitted success of the policy of centralization has been undoubtedly due to the wise compromise which continued the interest and concern of the local Magistracy in their local prisons; and which ensured not only just and patient hearing of reports against prisoners, but permitted reports on any abuses within the prison, and on complaints made by prisoners, by an independent judicial and unpaid body; and provided, at the same time, a tribunal to which the Secretary of State could always refer with confidence any question that might arise as between prisoners and the State. In certain respects, however, the judicial powers of the local magistrates were curtailed, _e.g._, powers of ordering confinement in a punishment cell were reduced from twenty-eight to fourteen days, and the award of corporal punishment was made dependent on the concurrence of two magistrates. In other respects, the tendency of the Act was towards a greater humanity of treatment. The rigid provisions of the Act of 1865 as to the enforcement of first class hard labour were modified. Under that Act, it was enforced for the whole of a sentence of three months, or even for an entire sentence, however long. Under the Act of 1877, the compulsory period was limited to one month. Another notable feature of the Act was the classification of prisoners into two divisions, one of which was that any person convicted of misdemeanour and sentenced to imprisonment without hard labour, might be ordered to be treated as a misdemeanant of the First Division, and, as such, was not deemed to be a criminal prisoner. Persons convicted of sedition or seditious libel, or imprisoned under any rule, order, or attachment, or for contempt of any Court, were to be placed in the First Division.

It is difficult to say whether the legislature intended this division, which, on the face of it, was a bold step in the way of differentiation, to be more than a reservation in favour of a few exceptional cases, such as are actually mentioned in the Act. The presumption is, having regard to the fact that prisoners treated as First Class Misdemeanants were not to be deemed criminal prisoners, that there was no intention to anticipate an elaborate classification, such as is now laid down, and that it was not realized what a vast importance rested in Classification, strictly so-called, and which finds its expression in the Prison Act, 1898. The powers given to the Secretary of State to make Rules under the Act of 1877 extended to such important matters as the treatment of prisoners awaiting trial, and of debtors; and the Rules then made, although modified in some details, remain essentially the same to-day. The principle of governing prisons by Rule made by the Secretary of State, subject to Parliamentary sanction, was still further developed in the Act of 1898, and may be said now to have been finally accepted as a wise and effective method for securing progressive change and reform without the necessity for revoking or enacting by the machinery of an Act of Parliament.

The Commissioners appointed under the Act took over their new duties on the 1st April, 1878. On that day, thirty-eight out of the 113 existing Prisons were closed. Sir Edmund Du Cane, the Chairman of the new Board of Commissioners, had been for some time Chairman of the Board of Directors administering Convict Prisons, and his influence soon became predominant till his retirement in 1895. His great administrative powers were devoted to securing the objects which, in his opinion, the Prison Act, 1877, intended to secure, _viz_:--(1) the application to all Prisons of a uniform system of punishment: (2) the best possible method for carrying out the primary object of punishment, _viz_:--the repression of crime: and (3) economy in expense.

As to (1), uniformity was secured by the adoption, as in the Convict Prisons, of a Progressive Stage System: by the adoption of a uniform and scientific dietary: a uniform system of education: a uniform system of first class hard labour by means of the treadwheel, the task for which was regulated by the most minute instructions as _the_ task for hard labour in Prisons.

As to (2) it has since been made a charge against the administration of these days that it erred on the side of a too severe repression. To those who have lost their faith in the virtues of the cellular system, it may seem unduly rigorous that a prisoner should have remained subject to that system during the whole length of his sentence. There were, of course, exceptions to the general rule, _e.g._, persons employed in the service of the prison, and other forms of extra-cellular labour, but separate confinement remained the rule for Local Prisons. To those, also, who condemn all forms of mechanical and unproductive labour, it may seem unduly rigorous to have insisted so minutely on the exact performance of a task of so-called first class hard labour. It is doubtful if public sentiment at that time would have been satisfied with the comparative leniency of the modern prison régime. The result of the earnest thought and discussion which have taken place through the civilized world during the last quarter of a century on all matters affecting the welfare of the prisoner has been, no doubt, to place his punishment on a more rational basis than that of mere obedience to mechanical and uninteresting forms of labour. The State until now had had no experience in dealing with short sentences. The problem to be solved was a new one, _viz_:--how to deal effectively with a man who was in prison for only a few days or weeks, and to whom during that time no useful trade could be taught. It is indeed a problem which may well vex the brains of the wisest, and if the solution has not yet been found, we have at least got beyond the stage where it was thought sufficient, by the invention of fantastic devices for executing sentences of so-called hard labour, to give expression to a sentence of imprisonment. The Prison Authority of this day perhaps erred in regarding it as a part of their duty to add to the penalty prescribed by the Court by imposing, in the name of the Progressive Stage System, certain penalties and incapacities as a peculiar feature of the early Stages. The only precedent for dealing with short sentences was that afforded by Military Prisons. It is well-known that the Committee on Military Prisons of 1844, which was in favour of hard penal treatment--shot-drill, cranks, &c., (in use in military prisons as a punishment for recalcitrant soldiers) exercised a considerable influence with local authorities in administering Civil Prisons, and the reproach, so often directed to the Local Prison System, that it was too military in its character, was probably due to this source.

(3) With regard to economy, Sir E. Du Cane was formerly a distinguished officer of the Royal Engineers, and had been engaged for many years in advising the Secretary of State as Surveyor-General of Prisons. It was owing to his experience and capacity that, at a relatively small cost, the prison buildings soon after the Act were brought up to a high standard, both in construction and in sanitation. His financial ability was also of a high order, and economy, consistently with efficiency, became the order of the day. It may be that in some respects his desire for economy led him too far in the direction of retrenchment, both in buildings and in service, but, for the time being, he was justly credited with great administrative and financial success; and it appears from a table prepared in 1885, comparing expenditure on Local Prisons for seven years before and after the Act of 1877, that economy had been achieved amounting to nearly half-a-million of money. Further, in that same year, 1885, the prison population touched and continued at a lower level than had been previously known. For the year 1878, in which the Prisons were handed over to the Government, the Local Prison population was the highest known, _viz_:--21,030. From that date it fell almost continuously till February 1885, when it touched the lowest figure then known, _viz_:--15,484. There had been, moreover, a decrease in the yearly death rate, in the number of suicides, and in corporal punishments, and in the yearly average of dietary punishments. A greater variety of employment had been introduced, and a new uniform system of accounts had been established. The Chairman had some justification, therefore, for inferring from these facts and figures that not only had the new penal system been made effective for the repression of crime, but that the legislation of 1877 had completely succeeded in its object in promoting uniformity, economy, and a generally improved administration.