1871.

VICTORIA.

REPORT (No.2)

OF

THE ROYAL COMMISSION

ON

PENAL AND PRISON DISCIPLINE.

PENAL AND PRISON DISCIPLINE.

PRESENTED TO BOTH HOUSES OF l'AULIAMENT BI HIS EXCELLENCY'S COMMAND.

lS!! autf}ont!!: JOHN FERRES, GOVERNMENT PRINTER, lllELllOURNE,

No. 31.

....

TABLE OF CONTENTS.

I. REPOR'l':

l. Punishment

2. Discretionary Power of Judges

3. Habitual Criminals ...

4. Remission of Sentences

5. Vfe Sentences

6. Miscellaneous Offences

7. Juvenile Offenders •••

8. The Crofton System .••

9. Gaols

10 . .Adaptation of Crofton System

II. Board of Honorary Visitors

12. Conclusion ...

2 . .APPENDICES 'l'O REPORT :

J. lion. J.D. Wood's Report on Irish Prisons

2. Circular to Sheriffs ...

3. Summary of Replies to Circular

3. EVIDENCE

4 • .APPENDICES 'l'O EviDENCE

Al',PROXBIATE COST OF JU:l'OHT.

Preparation-Not g·iven. hhvrthand "\Vriting, &e. (Attendances, £23 2s.; TJ anscript~ BOO foHos, £40) l::rlut.tng {850 copies)

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9 to IS

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31 to 34

35 to 40

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65 to 69

70 to 71

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ROYAL CO~IMISSION ON PENAL AND PRISON

DISCIPLINE.

REPORT (No. 2)

ON

PENAL AND PRISON DISCIPLINE.

\VE, the undersigned Commissioners, appointed under Letters Patent from the Crown, bearing date the 8th day of August 1870, to enquire into and report upon the Condition of the Penal and Prison Esta.blish­ments and Penal Discipline in Victoria, have the honor to submit to Your Excellency the following further Report:-

I.-PUNISHMENT.

1. Before entering on the enquiry, according to the terms of our Commission, " whether the punishment of crimes as now provided by law, and especially for" certain crimes specified, " is adapted to their repression, and adequate to the protection of society," we must first consider the question of the abstract relation of crime to punishment.

Abstrnct rc­luticn of crim<' to punishment.

2. It is a principle now held by almost all jurists that the primary object of The prim::ry • h • d f • d 1 • l fi • f h desJgn of pums ment IS to eter rom cnme, an· t 1us protect society ; t 1e re ormation o t e punishment

1r l b • d d b l' 1 • Tl l d b IS to repress ouenc er · emg a secon ary an su ore mate o )jCCt. Ie pena sentence passe y crime.

the judge has relation to tl1e first, aud the manner in which that sentence is carried out to the second, of these objects.

3. This view is presented ·with much force in a memorandum affixed hy the Lord Chief Justice of England to the Report of the Royal Commission on Transporta­tion and Penal Servitude appointed in 1863. Its importance justifies our inserting the quotation. His Lordship says :-

" The 1mrposes for which the punishment of offenders takes place 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

Opinion ~' '1H! Lortl C•id Justice of England.

Practical application of these principles.

Object of penal sen­tences.

Duty of the State to attempt moral refor­mation of criminals.

IV

ha>e the effect of deterring from crime that its infllction can alone be justified, its proper ami 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 for 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."

4. In practically applying the principles set forth in the preceding extract, it is needful to keep steadily in view the two separate ends of punishment. The expression quoted above, as to deterring "others," involves an important distinction. For it is certain, with respect to a large class of criminals, that the infliction of punishment is ineffectual to deter them fi·om persevering in evil courses. If unduly severe in proportion to the offence, especially in the higher classes of crime, it but too frequently hardens rather than reforms the offender. The habitual criminal is, in general, proof against its influence. But though it may not deter those who are hardened offenders, it certainly does deter many persons of weak and wavering principles, who might otherwise yield to temptation. It establishes a barrier on the boundary line between right and wrong which multitudes are pre­vented from overleaping. It supports and strengthens the voice of conscience, by giving to it an outward expression and a practical power. Punishment thus exercises a higher function and a wider influence than the reformation of the individual offender. The final expression of its value as a soci.:<tl instrument is that it preserves multitudes from becoming criminals.

5. For these reasons, it is the manifest duty of the Legislature in enacting, and of judges in awarding, penal sentences, to consider primarily their deterrent force on society, and secondarily their probable moral influence on each particular offender. Every sentence must therefore carry with it a certain degree of sew'rity. It is no doubt natural for a judge, acting under the impulses of hum;1nity, to regard rather the reformation of the individual actually before him than the effect on the general public ; hut if the efficacy of punishment, as respects its prirnary object1 he in proportion to its severity, it follows that punishment ought to he as rigorous as is compatible with a due regard to humanity. \Ve are, therefore, of opinion that the general scale of penalties on the Criminal Statute Book is hy no means disproportionately severe, and that no material reduction could he made in it without incurring the risk of increasing crime, and thereby inflicting serious injury on the communi tv .

.;

6. But although the consideration of repressing crime must take precedence of that of the criminal's refonnation, it is no less the duty as well as the interest of the State to attempt the accomplishment of the latter task. That duty becomes all the more imperative if, as we have shovm, there is a large class of criminals on whom punishment has no continuous deterrent effect. :Men of this class, when they are released from custody, if they are not better, will assuredly have become worse. Hardened and indifferent to the opinion of their fellow-men, they will have grown desperate and almost reckless. If, therefore, it is possible, whilst they are in confinement, to teach them habits of self-restraint and of respect for the law, not merely will their own

v

moral character have been improved, but society will have been benefited by its escaping the evils to which it would have been exposed by their liberation. And thus a systematic course of reformatory treatment constitutes an indispensable part of any effective scheme of penal discipline, and all the several portions should be framed with a direct view to that end.

7. Time also beeomes an essential element ; because the process of re­formatory treatment requires to he carried forward with eomparative slo\vness and caution from stage to stage. In many instances the first lapse into eriminality may be the result of mere ignoranee ; ignorance of duty, or of the nature and consequences of crime; or it may be the result of an unusual temptation, acting upon a mind not naturally depraved. In these instances, and indeed in all, the indueements to eriminality may be lessened by a judicious system of reformatory discipline, provided it he carried over an extended period of confinement. \Vhether, therefore, the question he viewed in reference to the deterrent effect of punishment, or to the duty of the State to attempt the reformation of the criminal, the logieal conclusion is that the minimum period of imprisonment, in all penal sentences for serious offences, should be of considerable length.

8. This principle has been reeognizecl in the systems of penal legislation and prison discipline at present in operation in Great Britain, Franec, Prussia, Russia, Denmark, and other European countries, and most of the United States of America.

II.-DISCRETIO~ARY PowER OF JuDGES.

9. The question of the discretionary power allowed hy hrw to judges, in awarding sentene0s for serious offences, has engaged our special attention, and evidence bearing on it has been obtained f'eom a numhcr of competent witnesses. There appears to he a prevailing impression that this power is at present more extensive than is required for the due exereise of that discretion whieh ought to be vested in each individual judge.

10. Some foundation for such an opinion may perhaps he found, as pointed out by several of the \vitnesses, in the apparent disparity of the sentences nwarded nt different times for offences of the same general character. But this complaint of the inequality of judieial punishments is not peculiar to our own eommunity. It has frequently been raised, for example, in the mother country Thus, in the Report the Royal Commission on Transportation, quoted before, it is pointed out that "the great latitude allowed by law in the sentences wbieh may he pronouneed has led to ~t

striking inequality in the punishments inflicted, by different judges, for the same offences, committed under similar eircumstances ; " and that this faet has been "productive of much rnisehief, especially by eneouraging criminals to speculate on the chance of receiving, if convicted, the minimum of punishment ever krmwn to be inflicted." The Commissioners, ho~wevcr, went no further than recording the expression of "a doubt 1vhether the discretion entrm;ted to the courts, in this respeet, is not, upon the whole, larger than is expedient." It may be added that in most of the erimin:xl laws passed sinee the date of that Commission's report the limits of punishment for partieular offences have l)een more dearly defined.

11. On the other hand, it is urged with very great if not unanswerable force, that any material limitation by Statute of the judge's discretionary po,yer might lead, in many eases, to injustice and undue severity ; and that any system of strietly formal equality of sentences for like offences is not practicable, so long as the variable degrees of inherent baseness in erimes nominally of the same kind, and the differing eircum-

Peml disci­pline ought to be framed with a view to reforma­tion.

Time an essential element in any refor­matory system.

This principle generally adopted.

Discretionary power of judges in awarding sentences.

Inequality of sentences.

Similar com­plaint raised in England.

Reasons against limiting discretionary power.

Special con·· siderations to be taken into account when allotting sentences.

Strict uni­formity of sentences not advis­able.

Limits of Rentences maybe more definitely fixed.

Minimum sentences.

Vl

stances attendant on their perpetration, are to be taken into account. The judge is certainly bound to keep both these considerations in view when allotting punishment. It is unquestionable, moreover, that a very great variety exists in the degrees of criminality in offences "Which, even in the most elaborate system of classification, must fi:tll under the same head. Thus, a particular crime may be one of rare occurrence but extremely dangerous to society, and it may therefore call for an exemplary severity of sentence in order to ensure its speedier extinction ; or it may be a common offence, but aggravated by circumsta,nces of violence or brutality ; or its unusual prevalence at a given period may demand that it shall be visited with a heavier punishment ; or it may be excessively prevalent in one district, though not in others ; or it may haye been perpetrated under remarkable conditions of wickedness, fraud, treachery, or cruelty. In each of these instances the punishment must he carefully graduated, so as to produce the utmost amount of deterrent effect. The criminality of embezzlement, or of robbery, again, is varied in intensity hy a multitude of circumstances having no reference to the actual amount of property stolen. A highwayman may rob a traveller of all the money he finds on him; or a burglar may plunder a house of all the property he finds in it ; or a person holding a position of trust may embezzle a small amount ; and in each cr<sc, although the value of the property taken may be trifling, this may arise solely from the fact that the criminal bad no opportunity of taking more. Clearly, he deserves quite as severe a punish­ment as if he had done so. Nor could any system of uniform sentences, however carefully framed, he made to apply equitably to the almost infinite sl1ades of guilt in crimes of dishonesty. The same principle holds true of almost every other class of crime.

12. In allotting punishment, moreover, it is necessary to have n•gard to the age and other personal considerations relating to a criminaL A broad line of distinction must also be dravm between casual offenders and criminals by habit and repute. )fore­over it must not be overlooked that various minds, acting independently, "Will inevitably take different views of the degree of severity properly applicable to the cases that arise. And this different action of different minds het\Yeen the prescribed boundaries is an almost necessary concomitant of that freedom and independence of thought so essential to the uprightness and impartiality of a judge. For tho reasons here fitated, as well as for others of a less palpable but yet cogent kind, we nrc of opinion that a!lY attempt to enforce a strict uniformity of sentences hy Statute l:r.v "Wou1d he hoth inexpedient and injurious to the ends of justice.

13. But whilst giving the fullest weight to this conclusion, we think it is possible, and at the same time desirable, to assign more distinctly hy legislative enactment the limits of penal sentences. To this end we recommend as follows :-

First. That all misdemeanors and felonies (excluding homicide, which forms a class sui generis) shall henceforth be severally distinguished as ( 1) simple, or ( 2) aggravated ; and that each of these sub-classes shall be further distinguished as (1) first convictions, or ( 2) second convictions.

Secondly. That for each of these subdivisions a m1mmmn sentence of imprisonment shall he fixed, as follm'rs :-

Simple J.l1isdemeanors: First conviction Second conviction ...

No linnt. Two years.

Vll

.Aggravated Misdemeanors: First conviction •.. Second conviction

Simple Felonies : First conviction Second conviction

.Aggravated Felonies:

Eighteen months. .•• Three years.

One year. Three years.

First conviction Three years. Second conviction . . . Five years.

14. We may here observe that the English Amended Penal Servitude Act of :Minimum.

h R I C . . T . sentence m

1864, which was based on the Report of t e oya ommisSion on ransportatwn, English law.

fixes the minimum period of penal servitude to which a prisoner can be sentenced at 2~a~. !~:Viet., five years.

15. It is much less practicable to fix a maximum sentence for each of the Difficulty of

foregoing subdivisions ; and we have already stated the grounds for our belief that no !~~~m. general reduction of the scale of penalties at present in operation could safely be made.

16. We further recommend that- Further reeommen-

( 1.) The judge shall in all cases decide, having due regard to the dations as to sentene€s.

Information, as well as the other facts, before him, whether an offence in either class comes under the head of simple or aggravated. The judge would, of course, state the reasons for his decision.

(2.) The pmver given to judges by the 301st section of the Criminal Law and Practice Statute to impose fines for indictable misdemeanors, in addition to or in lieu of imprisonment, shall be extended to all cases of simple felonies.

( 3.) The power given to judges under the 296th section of the Criminal Law and Practice Statute, to add private whipping to the punishments awarded for crimes accompanied with personal violence, and fer unnatural offences, shall be extended to aggravated cases of offences against women and children, and to crimes perpetrated under circumstances of cruelty or brutality.

( ±.) The offence of pe1jury, now classed under misdemeanors, shall henceforth he ranked as a felony. It has lately become too common in the courts of this country ; it is frequently attended with circum­stances of aggravation ; and its prevalence is fraught with serious evils to society. It therefore demands a higher classification and a more rigorous punishment.

( 5.) It shall he the duty of those charged with the prosecution of a criminal to ascertain in all cas(:'s whether he has been previously con­victed, and if so to indict him accordingly, and procure the necessary evidence of his previous convictions. The Information should state the date and nature of all sentences passed, as well as the other usmtl particulars.

(6.) There should be kept at the Central Office a register of all persons convicted of crime in Victoria, containing full particulars for identifi­cation, as well as of the gaol history, and photographic likenesses of each prisoner, taken when adrnitted, and when discharged. Copies of this register and of the photographs should be sent to all the gaols

Discretionary power of justicea.

:Recommenda­tions a.s to petty lar­ceny cases.

Distinction between casual and habitual cri­minals.

Vlll

throughout the colony ; and a sufficient time prior to each criminal sessions a properly qualified officer specially appointed for the purpose should visit the gaols, to ascertain whether any of the prisoners awaiting trial have been previously convicted.

17. By the 66th section of the Criminal Law and Practice Statute, justices in petty sessions are empowered to sentence persons convicted l)efore them of larceny under the value of Forty shillings to three months imprisonment; and the same section gives such persons the option of refusing the jurisdiction of the bench, in which cases the justices are obliged to commit them for trial. It has been shown to us that the punishment here awarded is not sufficient for offenders of this class who have undergone repeated convictions, and that much unnecessary trouble and expense are caused by granting the right of refusal in cases which might be quite as effectually disposed of in a summary way.

18. We therefore recommend that this section of the Statute l)e so amended as to take away this right, and to give justices summary jurisdiction in all cases of larcenies under Forty shillings, but ·with the option, as at present, if they shall think fitting, to commit the offender for trial. We also recommend that the maximum penalty awarded by justices for these offences be extended to twelve months imprisonment.

III.-HABITUAL CRIMINALS.

19. In the recent criminal legislation of Great Britain and other countries a marked distinction is drawn between casual offenders and habitual criminals. In the latter class are included all persons who make a regular profession of crime, or who are so inveterately addicted to dishonest courses, and so averse to labor, that there is no prospect of their ceasing to seek their living by depredations on the public, unless they are compulsorily withdrawn for a very considerable time from their accustomed

English Ha- haunts. An Act, specially directed against this class, entitled the Habitual Criminals ~~~a~~~~~= Act, was passed in England in 1869. All persons who have been twice convicted of

8~0;!~~~ded. felony are brought under its operation, and are subjected whilst at large to police Victoria, supervisiOn. The Act also provides for the re!ristration of criminals, and for the more cap. 99, .__,

Reasons for specially dis­tinguishing habitual criminals.

effectual suppression of places known to be the resorts of reputed thieves, or receptacles for stolen goods. vVe are of opinion that this Act, with some obvious alterations to adapt it to the special circumstances of the colony, should be added to the local Statute Book ; and that a severer punishment should be provided for the case of persons found guilty of harboring reputed thieves or receiving stolen goods. In most instances, such persons protect the offenders, and are not only accessories before the fact, but actually suggest the perpetration of the offences.

20. There are manifold reasons which justify the special recognition and separate treatment by the State of the class of habitual criminals. When a person is tried for a first offence (excepting his crime be one of a very grave kind), it is alike humane and reasonable to assume that he bears a general good character, and that he is capable of reformation. But if, after having undergone a course of penal discipline, specially devised to afford him the opportunity of reforma­tion, he commits a second offence, he proves that the habit of crime is formed in him, and that the discipline has failed of its object. The State, besides, has been put to the expense of his safe custody and supervision whilst in prison ; he has lost the advantage of a good character; and it is necessary to show to others that a heavier penalty V\ill be imposed upon him when he is again convicted. There is, in addition, a large class of persons who are notoriously criminals by habit. Such persons may be

lX

guilty of only minor offences, yet, by their continual repetition, they not unfrequently inflict more loss upon the public, whilst they are also much less likely to become reformed, than men who, under great temptation, commit a grave but single crime. It has further been pointed out with much force that professional criminals do not stand in the same relation to the State as the rest of the community ; they are, in fact, its declared enemies, not its obedient subjects. Their very business and occupation is to prey on society. The larger proportion of the annual expenditure on the machinery of criminal justice, on police, gaols, and penal establishments, is necessitated by this"'class. It is an evil leaven which is persistently fermenting, and constitutes tlJC dangerous element in society. From motives of public morality, economy, and safety, it becomes the duty of the State, whilst by an efficient system of public education it endeavors to prevent the growth of this pernicious class, to superadd au efficient system of penal discipline, expressly framed with a view to its diminution, and if possible extermination.

IV.-REliiSSION OF SENTENCES.

21. Our attention has been specially invited to the "advisability of maintaining or altering the existing regulations for the remission of sentences imposed by the law."

22. On the general question of the expediency of remitting sentences a wide diversity of opinion exists amongst the best practical authorities. It is urged by the advocates of the practice, that an aversion to regular labor is one of the chief sources of crime, and it is therefore of importance that the system of punishment to which prisoners are subjected should be one calculated to teach them habits of steady labor, and to associate industry in their minds with the advantages to be obtained by it; that experience has demonstrated that it is impossible to compel prisoners to work hard hy mere coercion, the attempt to do so having invariably failed, whilst it has produced a brutalising effect on their minds, and increased their previous aversion to labor ; that the principle of measuring the punishment to be inflicted upon criminals, not by time, but by the amount of labor they shall be compelled to perform before regaining their freedom, has to a greater or less extent been adopted into all the various schemes of penal discipline which have been tried in England within the last thirty years, and has been found to answer well; that the hope of earning some remission of their punish­ment is the most powerful incentive to good conduct and industry which can he brought to act upon the minds of prisoners; that experience has also shown that, when prisoners have been compelled to serve the full time for which they were sentenced, they have become more sulky, more difficult to manage, and much less industrious than under the remission system ; that long sentences, puq>Osely inflicted in order to prevent the early return of criminals to their old haunts and habits of crime, if executed without remission, are calculated to arouse a feeling of undue severity ; and. that the detention of prisoners for a short additional period can make but little difference in the protection afforded to society, whilst it is injurious to discipline in the prisons, by depriving prisoners of the prospect of earning a mitigation of their punishment.

23. On the other hand, it is argued that the remission system practically sets aside the judicial sentence passed upon the prisoner in open court, and substitutes for it a different sentence ; that it is unfair to the judges to alter, hy regulations, the sentences they have publicly pronounced ; that criminals are confirmed in their evil practices by knowing that they will not actually have to undergo the punishment awarded them ; that respect for the law is materially weakened when a criminal, who is known to have been sentenced to a lengthened term of imprisonment, is seen to be at large a considerable time before that term has expired ; that the practice of

No. 31. B

Remission of sentences.

Reasons in favor of re­mission.

Reasons against re· mission.

X

depriving judicial sentences of a large proportion of their weight tends directly to the increase of crime ; that it is essential to the ends of justice that a clear distinction shoukl :Jc preserved between the sentence passed on a criminal and the nature of the discipline to which, by his subsequent conduct, he deserves to he subjected ; that judges in some ca~:es, in awarding punishment, take the remission regulations into account, and make the sentenct>s proportionately longer than they otherwise would have done, and that this circumstance naturally leaves the impression that the puBislnnent awarded is unduly severe ; that if, as is universally admitted, it be essential to the full efficiency of punishment that its infliction should be certain, the remission system acts injuriously on the criminal's mind, by adding to the chances of eluding detection and of escaping conviction, a doubt as to whether, eYen when convicted, the sentence of the judge will really he carried out ; that the fact that a convicted criminal may ;:rhilc under sentence escape a portion of his puniJnuent, is of itself calculated to detract from its deterrent eftect ; ami that the delcgr;tion of legislative power to the Executive in the matter of punishing crime is vicious in principle.

Abolition of 24. \Vcighing these opposing considerations, and dealing \vith the question remission mtPm before us exclusively with reference to the state of thiugs existing in this country, and advimhlc.

to the general scheme of penal discipline reeommended in this and our Progress Heport, we are of opinion that it is advisable to aholish the syiitem of remitting sentences at present in operation, and to repeal so much of the 318th section of the Criminal Law and Practice Statute as empowers the Governor in Council to make rules and regulations for the mitigation or remission of sentenees.

Reasons for 25. This eonclusion, we may remark, is f(mmlcd less ou the superior force of thi> conclu-sion. the arguments against the remission system than on the twofold consideration, that

the primary condition of the suecess of our proposed scheme is having ample time for its operation on a prisoner, and t1mt the successive relaxations of discipline which it provides for may he taken as a fair equivalent for rc•mitti11g a portion of the sentence.

Reservation 2G. In all cases the prerogative of the Crown to pardon and release prisoners, of the 0 • l . l 1 u· f' . . Crown's pre- or to nutlgate t~wn· sentences, upon t 1e su )sequent 1scovery o extenuatmg circum-rog:;tJVe. f I · · 1 ld f b · l d "\lr- 1 . stances, or o t 1eu· mnoccnce, s 1ou · o course e stnet y reserve . '¥It 1 a view,

howevet·, of ensuring similar publicity for such acts of remission, and the grounds for tlwm, that has been given to the sentences pronounced in open court, we deferentially suggest, that wheneYcr a prisoner is liberated before the expiration of his sentence, or a mitigation of the sentence has been allowed, an announcement of the fact, with a statement of the reasons for the complete or partial pnrdon, shall be published in the Government Gazette.

Abol ·t· f 27. 'Vith the reservation here stated, lYe recommend that the re0o·ulations for !·lOU o ·

P1 r~sentr~gu- the n·mission of sentences in force since 18GO shall he re1)ealed, excepting in reSJ)CCt

atlons rc- 'j commended. of prisoners now in confinement, and that in future the sentences awarded hy the

jmlgl'S shall be in every case carried out in the manner described in our Report.

V.-LIFE SENTENCES.

Sf>ntcnces for 28. Another exercise of the prerogative, to whieh \Ye n.my be permitted to ref(·r, life. is the commutation of death sentences to imprisomncnt for life. So long as the 1mnish­

mcn~ of death forms n pm-t of the penal code, where a prisoner, after a fair trial and on clear evidence, has been found guilty of a capital offence, it is manifestly in the interests of justice to carry the sentence into effect. The injurious results arising, as alre<uly pointed out, from the uncertainty and inequality of sentences of imprisonment~

XI

are still more manifest in respect of sentences involving life itself. The chief m·gnment in favor of the retention of (h;ath rmnishments is their efficacy in detcrr:il:.!,' fi:om

~ '-'

crimes of the h~!!lw:.;t class, and that cfficacv is Q:reatlv weakened bv everv act of <,_J J ~; ._} .J o.l

intelfc~rence with the stern operation of the law. It would he better, indeed, to nho]ish the death penalty altogether than not to enforce it with irnpartinl and rigorous uniformity. And it il'> cert~in that the suhstitution of the sentenc~e of imprisonment for ]if(~ frequently exercises an injurious influence on the prisoner hin'lself. He :s shut up for lif(~ in bopelms confinement. One of the most po·werful incentives to good conduct is taken ii-mn him, and the eff(~ct upon his mind is too often to sink him into sullen and reddcss despair. Moreovel·, the class of life-sentenced prisoners forms a diffieult and dangerous body of men, vdwm it is almost impracticable to bring under any fixed scheme of reformatory di8eipline in company \vith other prisoners. It has been suggested that this class should be kept in a separate prison by themselves ; lmt the cost of such an arrangement ap1Jenrs to us to he a decisive objection to its adoption.

2£1. "\Ve therefore recommend that, in future, all commutations of the death Recommenda-tion !lS to life

pennlty shall he :f.Jl' t:. definite period of irnprisomnent, which \YC venture to suggest sentences.

shaH he fixed at fifteen ye:;rs, and that all prisoners whose sentences shall he so commuted Rhall he hrought within the operatio.n of the systern of discipline set forth in our Report.

30. The cases of the prisoners at present undergoing life scntnwes arc rresent life sentenced

reeommended to the consideration of the Executive. prisoners.

VI.-MISCELLANEOUS OFFENCES.

31. The 43rd section of the Criminal Law and Practice Statute provides that Offc>nces a•rainst wo-

tbe crime of Hape ;;;hall be punishable >Yith death. Beyond the expression of our n~m and children.

opinion that the penalty ought to be strictly enforced in al1 cases attended \vith ciremnstanees of special ngg;ravation, we have no suggestion to add to that already Ante,lo,stc. 3.

g1ven. 32. A great advance towards the repression of Drunkenness might, we think, Drunkenness.

be made, if the act itself, apart from the conduct to which it excites, were dis-tinctly recognized as nn offence. We nre, of course, aware that it is impossible tn make man temperate hy penal enactr..1ent, or moral by Act of Parliament ; and that no law should be pasBed to affect the individual who indulges privately in this or other personal vices. But the open exhibition of drunkenness is an outrage on public decency, and an injury to society hy the evil example set, of which the law is bound to take cognizance. "\Ve therefore recommend that, in dealing with the offence of Drunkenness, the penalty shall attach, in the first instance, to the act of public exhibition in that state, and secondarily to disorderly conduct committed by the offender whilst drunk. \Ve furtlwr recomn1eml that, as there is scarcely any substantial distinction between habitual drunkenness and lunacy, the Lunacy Statute, which is practically inoperative for this purpose, should be amended so as to include habitual drunkards. The friends of such persons should have power to make application to the Master-in-Lunacy, as in cases of lunacy; and in the remoter districts, where accesR to the Master is difficult and expensive, power should be given to existing local tribunals to deal with such applications under the Statute; a copy of the pro-ceedings in every instance being fonvarded to the MaRter for perusal and record. vV e also suggest that, in order to maintain a due regard for the credit and reputation of the persons on whose hehalf applications of this kind may be made, the enqumes may he conducted in private.

Obscenity.

Vagrancy.

Prevalence of juvenile offences.

Causes of it.

Means of prevention.

Public educa tion.

Evening schools.

Popular amusements.

Demoralising entertain­ments should be sup­pressed.

Punishment of juvenile offenders.

Whipping the only alterna­tive.

Xn

33. We do not feel called upon to recommend a more severe punishment for the offence of Obscenity. The provisions of the Statute in respect to it might with advantage be more strictly enforced by the proper authorities.

34. The clauses of the Police Offences Act, if enforced with energy, are, in our opinion, sufficient for the purpose of suppressing Vagrancy. We may add that the English Habitual Criminals Act, the adoption of which we have recommended, deals stringently with the class of notorious and reputed vagrants.

VII.-J UVENILE OFFENDERS.

35. We have specially considered the prevalence of juvenile offences, and the difficulty of suggesting any effectual means of checking it. The evil is one rather to be prevented than repressed. Juvenile crime is mainly the offspring of ignorance, first in the parents, and then in the children ; in a lesser degree it arises from habitual idleness, from the social circumstances of a new country, which are adverse to the growth of sentiments of reverence and obedience in the minds of the young, and from the culpable neglect of parents to look after the moral training of their children and to exercise over them proper control. Youths are permitted to roam abroad instead of being kept at ho~e; they become contaminated in morals and depraved in manners by vicious associations, and by the evil example of adult criminals at large, whose obscene and blasphemous language they pick up, and whose actions they at length come to imitate.

36. It lies beyond our province to do more than allude, in passing, to the para­mount duty of the Government to encourage and foster every agency calculated to check juvenile crime in its origin. The imperious necessity of a thoroughly efficient system of public education needs not to be dwelt upon ; but we may be allowed to refer to the obvious utility of evening schools for both youths and adults, in wh~ch might be taught the commoner elements of education, together with the rudiments of technical and scientific knowledge, music, and the elementary principles of art. Experience has well established the fact, that just in proportion as a taste for pursuits of this kind spreads through a community, the amount of juvenile and indeed of all crime decreases. The character of the prevailing popular amusements is also a matter worthy of consideration, as bearing directly on this subject. It is notorious that public enter­tainments of an immoral or indecent kind tend directly to increase the number of juvenile criminals. It is therefore the interest of the State, not only that places of amusement should be strictly supervised, but that every means of substituting healthful and rational recreation for the people should be encouraged by the Government.

37. ·with regard to suggesting the most suitable punishment for this class of offenders, it is to be observed that the difficulty is greatly enhanced by the palpable and serious eYils arising from the incarceration of youths, either together or with adults, even for short periods of time. The invariable tendency in such case is to sink the younger offenders morally to the level of the worst of those amongst whom they are confined. Under no circumstances, as we think, should this practice be allowed. But in recommending its abolition, we are compelled to substitute in lieu of it some efficacious punishment of a summary kind. There is none that can be suggested excepting personal chastisement. It cannot be denied, however, that there exists, and properly, a strong repugnance to the infliction of corporal punishment on youths as a sentence. The objections taken to it are, that it is calculated to destroy self-respect

Xlll

and permanently degrade the moral feelings ; and that, when once established as a legal penalty, there is a disposition to apply it too frequently and indiscriminately. There is certainly great force in these objections ; but nevertheless they yield, in our opinion, to the absolute necessity of adopting corporal punishment as the only alter­native for imprisonment. It is the lesser of two evils.

38. In order to guard against the possibility of abuse in its application, we recommend that no bench of justices shall have power to sentence a youth to be summarily chastised, excepting there he at least two justices present, of whom one shall be a police magistrate ; that a special report shall be made in every case where the penalty is inflicted ; that solitary confinement in the lock-up (not in the gaol), on bread and water, for not more than twenty-four hours, may be substituted for the chastisement, or added to it, at the discretion of the bench ; and that the police districts within which this power may be exercised for a definite period only, to be fixed by the Governor in Council, shall be proclaimed in the Government Gazette.

Limitation of its infliction.

39. The chastisement should in all cases be inflicted with a "birch rod," never Mode of in­

with the lash, and in no case should any sentence he for more than five-and-twenty fiiction.

stripes, all to be inflicted at one time.

40. The responsibility of parents for the offences of their children has been also pressed upon our attention. At first view it seems a startling proposition to inflict a penalty on one person for the misconduct of another ; but, as we have stated, it is undeniable that a large measure of responsibility does in many instances rest upon the parents when children and youths, who are still under parental guardianship. are brought before the tribunals as offenders against the law. It is fitting that in such instances the culpability of neglecting to exercise proper parental control should he brought home to the parents in a practical manner. We therefore recommend that it shall be left to the discretion of the bench, upon proof of the parents' culpable negligence, of which a previous conviction shall be deemed sufficient primd jhcie evidence, to impose on them a fine (not exceeding five pounds), and to order them to make good any damage that may have been done to property by the delinquent.

VIIL-THE CROFTON SYSTEM.

41. We have taken into our consideration "Whether the system known as the Crofton System could be advantageously applied to this country, and if so, what steps should he taken to adopt it."

42. The Crofton System is based in part on the principle tried in Norfolk Island by Captain Maconochie about thirty years ago-that, namely, of reckoning sentences, not by time, but by the amount of labor performed by the criminal. From circumstances into which it is unnecessary to enter, Captain Maconochie's experimental trial proved unsuccessful ; but it has since been very largely adopted into the penal system of Great Britain and other countries. The Act establishing the Crofton System in Ireland, called the Irish Prisons Act, was passed in 1854. It repealed the former Prisons Act, and constituted a "Board of Directors of Convict Prisons for Ireland," consisting of three members appointed by the Lord Lieutenant. To this Board was remitted the power of making rules for the internal management of the prisons, contracting for all necessary food and supplies, punishing breaches of discipline, and acting generally as justices within the establishments. The first chairman of the Board was Captain (now Sir Walter) Crofton, the founder of the system designated after him.

ReFponsibility of parents.

Parents may be fined.

The Crofton system.

Origin of the system.

Evidence of Sir W. Crof­ton before Royal Com­mission on Transporta­tion, 1863.

Principles of the system.

Quoted from North Ameri­f'fln lleview, Y<li. 102, p. 221.

XIV

43. The general principles vvhich govern it arc thus stated by Sir ,V. Crofton :-" l. That convicts are better and more rclinllly trained in small numbers, aml hy their being

made to feel, thronghont their detention, that their advancement depends upon them:;dves,

through the active exercise of qualities opposed to those which have led to their irnpl'iKon­

ment.

"2. That the exhibition of the labor aml training of the com·ids in a more natural form, before

their liLemtion, than is pmcticalJlc in ordinary prisons, is a course oL•.,ionsly cal<;alntcd to

induce the public to assif.t in their absorption, and thereby to matel·idly climini~h the

difficulties of the convict question.

"3. That the institution of appliances to remler the criminal calling more hazardous will

assuredly tend to the diminution of crime ; and, therefore, that poli<'e snpervi,.oion,

photography, :md systematic communication with the governors of connty gaolF, with

a view to briug, in all possible cases, former convictions against offenders aml entail

lengthened sentences upon them, arc matters of the gravest importance and clescl'l'ing of

most minute attention."

Firststage. 44. The system includes thTee successive disciplina:ry stages, to whieh all criminals sentenced to lengthened terms of imprisonment arc subjected. In the first stage, a prisoner is placed in solitary confinement in Mountjoy priwn, in Dub1in, for a period of eight months ; but this term may he extended to nine months, or eyen to twelve months as a maximum, as a punishment for misconduct. On entering -:\Iountjoy prison, the criminal's personal description and photograph are takt>n, and registered. During the first three months the prisoner is allowed no occupation, excepting oakum picking. For the remainder of his s0litary term, if he he a skilled workman, he is employed at tailoring or shoenmking ; and if an unskilled laborer, he is put to mending clothes and sheets, or boot-closing, or such other employrncnt as does not require instruction and supervision. For one hour in the day the prisoner attends school, where he is instructed not only in the elementary branches of education, hut also in the whole scope and object of the system which he is undergoing. He thus learns what further discipline he has to pass through, and how much he may do to improve his position in the successive stages by good conduct and steady industry.

Second stage. 45. At the end of his term of solitary confinement the prisoner is transferred, if he be a skilled workman, to another wing of Mountjoy prison, where assoc1atcd labor is carried on ; and if an unskilled laborer, he is sent to Spike Island, and set to work on the fortifications. In this stage there are four classes, designated respectiYely the third, second, first, and advanced (or A) classes. A prisoner enters upon the lowest grade of the third class. His conduct and diligence at his oceupation are registered by rnarks, under the three separate heads of " discipline," "industry," and "school." By attaining the maximum number of marks in any class he is raised to the next highest one, and when he attains to the advanced (or A) class he is employed on special works, in another portion of the establishment, apart from the other classes of prisoners. A man's progress from class to class depends entirely on his earning the requisite number of marks, and any misconduct subjects him to reduction and loss of marks. A gratuity of one penny per ~week is allowed and plaeed to the credit of ~well­concluded prisoners in the third class, twopence per week to those in the second, from threepence to fourpcnce to those in the first, and from scvenpence to ninepence to those in the advanced (or A) class.

Third stage. 4G. When a prisoner has passed through the second stage, he is removed to what is lmown as an " intermediate" prison, and enters on the third stage of his disciplinary course. There are two "intermediate" prisons : one at Smithfield, in Dublin, and one at Lusk, fifteen rnilcs from Dublin. At Smithfield, the prisont>rs are employed at trades ; at Lusk, they are employed at farm-1vork. At neither place are there ever more than 100 men employed. At Lusk, they are fltationed in two iron

XV

huts, holding 50 men each, with accommodation for three officers attached. The }mts are movable, and consist of hut one large room each, which is used as a school­room, dining-room, and dormitory, the beds being put away in the daytime. A gratuity of half-a-crown a week is allowed to such prisoners as are certified to have performed their work properly, hut misconduct of any kind is punished by the delinquent being sent hack to solitary confinement in 1\Jountjoy prison. At Smith­field, the gratuities are graduated according to the amount of work actually performed, but the maximum sum is half-a-crown a week, as at Lusk. The men in these " inter­mediate" prisons are subjected to hut slight restraint or supervision ; the officers are unarmed, nnd work with the men, who are allowed uncontrolled association both whilst at work and nt leisure. They are, even at Smithfield, sometimes permitted to go into the streets ; and liberty is given them to expend sixpence a week of their gratuities on books, or tobacco, or any other article excepting drink. In addition to the usual school-teaching, the priwncrs in the intermediate prisons are allowed the benefit of lectures on instructive subjects, delivered by a gentleman specially engaged and paid by the Government for that purpose. He is called the Government Lecturer to Prisons.

47. Haviug completetl his terms of" intermediate" imprisonment, the prisoner is liberated on conditional-purdon or ticket-of-leave. He is kept under police super­vision, and is obliged to report himself at the consta.hulary station of his locality on the day of every month. Every change of locality must also he duly reported. In Dnh1in prismwrs at large on tickets-of-leave are visited individually once a fmtnight by the Government inspector. It may be added that not much difficulty is experienced in o Haiuing e~nployment for the prisoners on their rele:1se.

L18. Y{hen the full term of sentence has expired, the prisoner receives a certificate of di::;charge in the form of an unconditional pardon ..

4:D. A mDre detailed account of the working of the Crofton System, vvith a description of the present state of the intermediate prisons, founded on personal observations and the most recent public doctmwnts, is given in a despatch from the Hon. J. D. ·wood, which will be found in the Appendix to this Report.

IX.-GAOLS.

Fourth stage.

Final stage.

lion. J.D. Wood's Re­port.

50. Before entering on the details of that modification of the Crofton system Gaols.

which it is propo~wd to estabjish, it will he necessary to state our views and conclu-Sions 011 suhjef·t of the existing gaols.

51. A circular letter was addressed to each of the sheriffs, containing a list of Statistics of

· 1 '· 1 l't' f tl · l 1 h · ' · d gaols (JUestwns rc,:wng to tiw cone 1 1011 o . 1e varwus gao s niH er t en· superviSIOn, an Appe~ilix n. asking 1mggestions :1s to improvements in management and other practical details. From returned it appears that, on the 31st August 1870, there were in exist.C"nce tea gaols (including Melbourne gaol), in which were confined 402 male and 148 {(,male prisoners undergoing sentence and also 45 persons awaiting trial. Other particuln.Ts will 1Je found in the Appendix. Appendix c.

In tl1c Government Estimates of Expenditure for 1871-2 the cost of the Cost of gaols.

gaoL; l,-) set down at £15,520 19s. for salaries, and 1,050 for maintenance, making a total of ,)/;) 1 D5:'. For Melbourne gaol the cost of supervision only is £5193 7s., whid< · ·,·c:; an of £19 lOs. for each prisoner, exclusive of the fluctuating numiJer tho,oe awaiting trial ; ,at Ammt the average is £31 lls. per head ; at BaUam<:, £.21 1 ; at Heechworth, £23 2s. ; at Castlema.ine, £31 7s.; at Geelong, £21 ; at Kilmun~, £55 14s. ; at Maryborough, £33 Is. ; at Portland, £38 ; and

•

Country gaols.

Evils arising from them.

Should not be made places of imprison­ment.

XVI

at Sandhurst, £29 lOs. per head. The total average cost of each prisoner throughout the country is £41 lOs. per head.

53. These returns show that the plan of maintaining a number of small penal establishments throughout the country, each with its separate staff of officers, is very expensive to the State. But a still graver objection arises-that it is wholly incom­patible with the carrying out of a uniform and comprehensive scheme of penal discipline. When prisoners undergoing sentence arc dispersed in small numbers through many places of confinement, each gaol governor will naturally carry out a method of his own, while at the same time it is impossible to make the labor of the prisoners profitable. The tendency of these establishments is, therefore, directly to perpetuate extravagance, and indirectly to encourage, by failing to repress crime. On the other hand, it is only by concentration of prisoners, organized industry, and systematic discipline, that the two great objects of economical management and moral reformation of criminals can be accomplished.

54. It is, therefore, our opinion, that, at the earliest practicable period, the whole of the district gaols should cease to be places of imprisonment, and should be constituted gaols "of the first instance,'' or places of detention, in which only persons awaiting trial, and those undergoing very short sentences for petty offences, should be confined. All other prisoners now in these establishments should be dis­posed of in the manner subsequently described.

Disposal of 55. All the disabled, decrepit, or aged prisoners incapable of working, as well non- effective prisoners. in Pentridge as in the gaols, should be sent to a place specially provided for them.

The Geelong gaol would, in our opinion, be a suitable place of confinement for this class of prisoners.

Disposal of 56. The able-bodied prisoners in the gaols should then be divided into two able-bodied prisoners. classes : ( 1) Those undergoing sentences of more than three years confinement, and

( 2) those committed for shorter periods. The former class should be at once sent to Hous~ of cor- the Pentridge Penitentiary, and the latter to a House of Correction to be erected on rectwn to be } p . d • 1 · · b · • · · h h erected. t 1e entr1 ge reserve, In c ose proximity to, ut not m commumcatwn Wit , t e

present prison. All persons summarily convicted of petty offences and sentenced to more than one month's confinement should also be sent thither. By this arrangement,

Advantages two material advantages would be gained : a unifonn system of gaol discipline, and of this plan. much greater economy of management. The entire criminal population of the country

would be concentrated in one locality, and the possibility of abuses creeping into the general penal system would be materially lessened.

Further ad­vantages of this plan.

Melbourne gaol.

Unsuited to the city.

57. In the district gaols " of the first instance " would he also confined all persons awaiting trial, all debtors committed on fraud summonses, persons detained in default of bail, and those summarily convicted of trivial offences, and sentenced to one month's confinement and under. At present these classes of persons are subjected to the harshness and injustice of being sent to herd with felons. This eviJI would be avoided by the adoption of the plan here proposed ; and at the same time the means would be afforded for making a thorough classification of prisoners of all grades, without which no efficient. scheme of })rison discipline can ever be brought into successful operation.

58. vVith regard to Melbourne Gaol, it is to be regretted that it was made more than a receiving prison. Its proper use is as a place of detention for persons awaiting trial, and those undergoing short sentences upon summary conviction for petty offences. All prisoners now confined in it on sentences of more than three years should be at once removed to Peutridge ; the females, when the new workshops are

XVll

finished, to the C division, as before recommended ; those under three years sentences to the House of Conection, and those unable to labor to the gaol provided for them. This being done, a gaol "of the first instance," should be erected in a suitable locality. The Government might then dispose of the area-nearly ten acres in extent-on which the gaol stands, with the buildings on it, in the most profitable manner ; or a portion of the materials could be used in erecting the gaol " of the first instance" for the city. In no case, however, could the present fabric be made available for the purposes we have in view. Its situation in the centre of a large and populous city, its vast size, inconvenient arrangement, and the construction of the cells, render it wholly unsuitable both as a place of detention and as a disciplinary prison. The time has come, we think, when its removal has become necessary, both on grounds of public utility and convenience, and as an essential step towards the establishment of an organised system of prison management.

X.-ADAPTATION OF CROFTON SYSTEM.

Its abolition recom­mended.

59. The question remains as to how far the Crofton system is capable of HowfarCrof­

heing adapted to the circumstances of this country. There cannot be a doubt ~~ysb~tem that it has worked admirably in Ireland, nor that it is calculated to repress crime adopted.

in a higher degree than any other scheme of penal discipline which has yet been tried. Its partial adoption in England, and the testimony horne to its value by eminent jurists and statesmen in all parts of the world, are conclusive arguments in its favor. The soundness of the abstract principles on which it is based; the careful minuteness 'vith which its multifarious details have been wrought out; the manner in which each step in the disciplinary process is made to conduce to the same end, namely, the reclamation of the prisoner ; the skilfulness with which the co-operation of the prisoner himself towards the attainment of that end is gradually elicited ; and the sagacious blending of severity at one stage of the process with clemency at another; all these are elements in the Crofton system which hardly seem to admit of improvement. We have therefore incorporated them, so far as possible, with the system we propose for establishment in Victoria.

60. '\Ve say, so far as possible. For it must be stated, on the. other hand, Limitationsto

that Victoria differs widely from the older countries where the system has as ~t;0~0{f0~~ete yet been tried, in the varied national character of its population, in their social circumstances and industrial pursuits, in its most prevalent crimes, in geographical features, and it must be added, in the facilities for obtaining intoxicating liquors. These are all essential considerations in the case before us. The principles of the system-namely, the individualization and reclamation of the prisoner-are applicable to any country, hut the details require modification according to the peculiar circumstances of each. Thus, we propose to simplify the system of " marks," by which the prisoner's progress from stage to stage is recorded, so as to preclude the possibility of favoritism ; to shorten, from eight months to six, the term of solitary confinement ; to reject the plan of discharging prisoners upon licenses ; and to make the supervision in the third stage much more strict than it is in the Crofton system. It would he simply impracticable, we may remark, in a country like this, where escape across an inland frontier of very great extent is exceedingly easy, to establish the plan of outside working without supervision which is in operation at the Lusk farm, or even to grant the license accorded at Smithfield.

No. 31. c

Proposed new system.

F!rst stage.

Seeond slage.l

Th i r<l stage.

xvm

61. As regards able-bodied prisoners sentenced to three years' imprisonment and upwards, the details will be as follows :-

( 1.) FIRST STAGE.-A uniform term of six months' solitary confinement will be substituted for the present graduated scale. But the term may be extended to seven, eight, or a maximum of nine months, as a punishment for misconduct. A daily record will be kept of the prisoner's conduct, and of the amount of work performed ; his physical power and mental capacity for work being first estimated and registered.

( 2.) Employment in Solitary Confinement.-The employment in this stage must of necessity be such as can be carried on by one person in a celL Skilled workmen who can be so employed 1\'ill work at their trades ; and unskilled will be set to oakum~picking, mat-making, &c., as at present. This being the punishment stage, and as attendance at school necessitates association, the prisoner will be allowed books for perusal at leisure time ; but the main object will be to teach him habits of steady labor. The hours of work will be the same as at present.

( 3.) SECOND STAGE.-On his release from solitary confinement, the prisoner will pass into the B division, and be employed in the workshops. Unskilled laborers, found incapable of being taught a handicraft trade, may be profitably engaged as assistants in the workshops, and in various minor ways. In each workshop a daily register will be kept of each man's conduct and work performed, estimated according to his personal capacity for labor.

( 4.) Progress through the Second Stage.-The prisoners in this stage will be divided into four classes. Each prisoner, on entering, will be placed in the fourth (or lowest) class, and his progress upwards will be regulated by the number of marks awarded him by the Board of Honorary Visitors subsequently described, who will periodically inspect the daily registers, and allot each man's marks. No money allowance will be given to the prisoners in this stage ; but a short­ening of tl1e term in the first class may be granted for continued good conduct in the three lower classes. The maximum time spent by a prisoner in this stage will be one-half of his entire sentence ; and this may be abridged by one-fourth, (or one-eighth of the whole sentence) ; the time subtracted b0ing added to his term in the third, which will be the most desirable stage for the prisoner himself, and the most profitable to the State.

( 5.) THIRD STAGE.-When a prisoner has passed through the second stage, he will he removed to a separate workshop in another division of Pentridge, or transferred to public works outside the establishment, under the conditions hereafter specified. In this stage also, as in the second, there will he four classes, and the prisoner's progress will be regulated by marks. For each class there will be a graduated scale of money allowances, and the prisoner will be allowed to spend a small portion of his earnings in pennitted indulgences. The general period of confinement in this stage will be one-fourth of the entire sentence ; the one-eighth of the sentence gained by well-conducted prisoners in the previous stage being in such cases added.

XIX

( 6.) Scale £if Money Allowances in Tltird Stage.- The scale of money Scale of money allow-

allowances should be fixed and strictly observed. anees.

(7.) FouRTH STAGE.-Having completed his probationary term in the third Fourth stage.

stage, and if no complaints for misconduct have been registered against him, a prisoner will be allowed the option either of continuing on the public works for the remainder of his period of sentence, or of working at his trade in Pentridge, at wages somewhat below the current rate. Or, he may pass into private employment, upon conditions to be in each case arranged by the Board. The whole of the wages contracted for (with a small deduction), will be retained by the .Board on the prisoner's account until his discharge. The utmost time spent by any prisoner in this (the final) stage will be one-fourth of his entire sentence, less six months. It may be added that there are numerous minor details of management in this and the previous stages which can only be regulated by the personal super· vision of the Board.

( 8.) Discharge £if a Prisoner.·-'Vhen the full term of his sentence is com- Discharge.

pleted, the priso!ler will be discharged, and a portion of his earnings

( 9.)

given him by the Board, who will retain possession of the balance until they are satisfied that he is following some honest occupation, so as to prevent his recklessly expending his means. The Board will endeavor, in conjunction ·with the local Aid Societies mentioned after-wards, to procure employment for discharged prisoners of good conduct ; and it must be strictly forbidden to the police to interfere "ith or inform upon such men. Any attempts on the part of previous fellow-prisoners to extort money from them by threats of informing should be made a punishable offence.

Employment on Public J~Vorks.-It will he the duty of the Government Employment • • on public

to proJect pubhc works of a useful and necessary character on works.

which prisoners in the third stage may be profitably employed. The defence works (on which prisoners have already been engaged) may be cited as an example. To these might be added, the improve-ments of harbors and river mouths, quarrying and stone-cutting for Government departments, the making of canals and storage of water, road-making in remote and difficult localities, and many other works of a similar kind.

( 10.) Dietmy Scole.-The diet.ctry scale in each stage we recommend shall Dietary scale

remain as at present. Wben a prisoner is actively employed, it is necessary that he should receive daily an allowance of food sufficient to sustain. him in health and full working strength. No cause acts more powerfully in making prisoners sullen and insubordinate than insufficient food. It is, besides, the duty of the State, as _well as its interest, to discharge a prisoner in a physical condition fitted to enable him to earn his Jiving by labor. 'Vhen prisoners are unemployed, or are kept in solitary confinement, a reduced ration may be given, as at present. In most of the dietary scales of other countries which we have examined there is a much smaller amount of animal food than in the Victorian scale ; but the deficient quantity is made up by

School in­struction.

Penalties for misconduct.

No second application of system to a criminal.

Treatment in House of Correction.

Employment of females.

Warders.

Board of honorary visitors.

Such a Board indispensa­ble.

Its functions.

XX

milk and other aliments which are elsewhere cheaper, but are in Victoria dearer, than meat.*

( 11.) Instruction qf Prisoners.-The prisoners in the second and so far as practicable in the third stage will he taught in school for t\vo hours every evening. The ordinary teaching will he varied occasionally, as in the Crofton system, by lectures, conversational discussions, and lessons in part singing. And every prisoner should have explained to him the nature and advantages of the system of reformatory discipline he is undergoing.

( 12.) Penalties for JJ1isconduct.-A prisoner guilty of misconduct may be punished, at the discretion of the Board, on the report of the Visiting Justice, by forfeiture of the whole or part of the money registered to his credit, or by being put back one or more stages, according to the gravity of his offence.

( 13.) Limitations of its apptication.-W e do not feel justified in departing from the principle of the Crofton system, that in no case should a prisoner be allowed to pass through the process of reformatory treat­ment a second time : such offenders will be kept in the first and second stages during the period of their subsequent sentences.

62. The prisoners confined in the House of Correction will be subjected to a process of reformatory treatment based on the same principles as those to be adopted in the Penitentiary, into the details of which it is not necessary to enter.

63. The proper employment of female prisoners in the Penitentiary, and the best method of disposing of them upon their release, are questions which must be left to the decision of the Board of Visitors.

64. In addition to the recommendations as regards 'Varders already given in the Report on Pentridge, we think it advisable to suggest that a certain limited number of the police force might with advantage be employed as vacancies occur in the present staff. Two years might be fixed as the term of engagement, the time being reckoned as service in the force. At the end of the term the officer would be replaced by another, and would return to his ordinary duties. By this arrangement the police force would gain a "face-knowledge" of the criminal population, and the periodical changes in the staff of 'Varders would prevent favoritism and other abuses.

XI.-BoARD OF VISITORS.

65. In the Progress Report the appointment of a Board of Honorary Visitors of Gaols and Penal Establishments was recommended.

66. We consider such a Board indispensable to carrying into operation the system of discipline just detailed. Its functions would be of a strictly supervising nature. It would he required to see that the instructions of the Government, founded on this and the previous Heports, were duly carried out; to watch carefully the operation of the system of discipline proposed ; to suggest to the Government from time to time such modifications and improvements as experience might show to be necessary ; to recommend the best means of making the labor of the prisoners profita­ble to the State ; to arrange in each case the mode and terms on which a prisoner may pass into private employment ; to adopt means to find such employment for discharged prisoners as may be best suited to their individual capacity, and may at the same time serve to withdraw them from their previous haunts and associations,

• The aggregate quantity of food given to prisoners must always be about the same average ; but in various countries the materials are varied, so as t.o select the cheapest.

}

XXI

and thus prevent their resorting to crime for immediate subsistence ; to help in the formation of local Prisoners' Aid Societies, by whose means fitting employment may be found in districts remote from the capital ; and to watch over the career of prisoners subsequent to their discharge, with the object of preventing, so far as possible, their relapse into criminal courses.

6 7. The success of the Irish system, which has been so marked, is mainly attributable, according to Sir '\Valter Crofton, to the careful minuteness with which the details are carried out under the personal supervision of the Board of Directors appointed by Act of Parliament. There cannot be a doubt that the same principle a1}plies universally. The establishment of an independent Board, holding an inter­mediate position between the Government and the officers within the establishment, is in fact an essential condition of the effectual working of the proposed system, which is based on the individualization and treatment of each prisoner.

Board of Directors in Crofton system.

R.C.onT.and P.S.Ev. 3664, 3675-6.

68. In England, following the Irish model, a Board of Directors of Convict And in , . l , S f England. Pr1sons \vas estabhshed subsequent to the Pena Servitude Act Amendment tatute o

1864. In America, prison associations, formed voluntarily by the citizens themselves, Prison asso­ciations in

are formally recognized and protected by Acts of the State Legislatures. The Prison America.

Association of New York, for instance, was incorporated by the Legislature in 1846, NewYork Prison As so­

and it annually presents a report of its proceedings, which is laid on the table of the dation.

two Houses. The objects of this association, as stated in its Act of incorporation, are as follows

" 1. The amelioration of the condition of prisoners, whether detained for trial or finally con- Report of As-

victed, or as witnesses. sociation for 1869, pg. IX,

"2. The improvement of prison discipline and the government of prisons, whether for cities,

counties, or states. " 3. The support and encouragement of reformed convicts after their disci1arge by affording them

the means of obtaining an honest livelihood and sustaining them in their efforts at ref<Jrm."

69. In England and in most of the countries of Europe societies of a similar nature are in existence, all more or less sanctioned and recognized by the Government. A very large amount of benefit results both to society at large and to the criminal class individually from the operations of these associations. But a voluntary society having the same objects, even if it could be established in this country, would not possess the powers and means of operation held by such a Board as is here recommended.

CoNCLUSION.

English Pri­soners' Aid Societies.

10. The adoption of the foregoing suggestions will some alteration, of the Criminal Law.

necessit.:'lte a revision, and Alteration in Criminal Law.

71. \Ve must be allowed to reserve for a future time our report on the remaining subject referred to us, namely, the working of the Industrial and Refor­matory schools.

All which we have the honor respectfully to submit to Your Excellency.

23rd May 1871. (L.s.)

(L.s.)

(L.s.)

(L.s.)

(L.S.)

(L.s.)

(L.s.)

(L.s.)

WILLIAM F. STA 'YELL,

ARCHD. MICHIE,

SAMUEL H. BINDON,

W. H. F. MITCHELL,

C. MAC MAHON,

RICH. YOUL,

W. TEMPLETON,

C. E. STRUTT.

Remaining subject for considera· tion.

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APPENDIX.

REPORT OF HON. J. D. WOOD ON IRISH PRISON SYSTEM.

Union Club, Trafalgar Square, London, 31st December 1870.

SIR, In my letter of the 4th of November, I informed you that I had recently visited the prisons in Ireland . .

named in the mar•rin. I have now the honor to send you a re~ort regarding the prison discipline in that conn try, RKl•m<•ml I'nde· o V.:f:'lt(t( r n~al..,s), based partlv on my own observations and partly on tbe boo ·s and documents which I forward, and which are fJr.ngegurmun enumerated' in the schedule at the end of this letter. Penitentiary

~rhe prisons of Ireland are of two classes-borough and county gao]s (including bridewells) and the convict ~~~)~~~~1~~~~j~y prisons. The latter are maintained by the Government, and the former by the different counties and boroughs, eaf'h ~laleamlFemaJe county and borough havina at least one gaol, unless (as is frequently the case) a borough and a county unite in :;,<;1\~;1~~.!'~\~~"~i maintaining a common gao f. (See 7 Geo. IV., c. 7 4, s. 2). In the Government or convict prisons are confined persons DnlJUn; and

sentenced to penal servitude ; all other prisoners are confined in the borough or couuty gaols. At pages 68 and G9 ~;}::,~::~;, of the Forty-eighth Report of the Inspectors-General will be found a list of the county and borough gaols. The the n·unty of only convict prisons are Mountjoy Male and Female Prisons, in the city of Dublin; Spike Island, in the county of l>nt,'in. Cork; and Lusk Intermediate Prison, in the county of Dublin (about fourteen miles to the north of the city of of

Dublin), although, at one time, there were two other convict prisons. Each borough and county gaol is under the management of a Board of Superintendence, consisting of not ~::wts.

more than twelve members, appointed by the grand jury (see 7 Geo. IV., c. 74, s. 2); but there are two Inspectors- Gonr.mt><r.;t General of Prisons appointed under the provisions of the fifty-fourth section of the same Act, whose duty it is to conviCt Jll .ons. visit and report upon all the prisons of Ireland (with the exception of convict prisons). The convict prisons are under the control of three Directors, who are appointed under the provisions of the Act 17 and 18 Vic., c.

Judging from the reports of the Inspectors-General of Prisons, there does not appear to be much. if indeed Ohjccticns to the

any, adyantag~ in the sy~ten~ which p~eva~ls. in Irelan~ (as in other po~tions of the Uni.ted Kingdom), ~f imposing ~~~~!~:~se::';;~tc~i upon local bodies the obhgat10n of mamtammg a partiCular class of prisons. They pomt out that It 1s far &om autlmritics. economical, as a staff must be kept up for each gaol, no matter how small the number of the inmates may be; the officers occasionally out numbering the prisoners in custody (see Forty-seventh Report, p. 43; Forty-eighth Report, E 12), while there is a want of uniformity in the discipline (Forty-seventh Report, p. xliv., lines 3 to 7; Forty-eighth Report, p. xliv.). 'l'hey also recommend (Forty-seveuth Report, p. xliv.; Forty-eig-hth Report, s. xlv.) that all prisonerB under long sentences should be removed to a central depot (as is the case in Scotland) under Government control. The experience of Ireland, therefore, does not furnish any argument in favor of altering the system which has always prevailed in Victoria, under which the Government is exclusively charged with the control and maintenance of prisoners of every class.

The average number of prisoners confined in borough and county gaols under sentences of more than twelve months is 169 (Forty-eighth Report, p. xlvi.), of whom only four have sentences exceeding two years.

1Vhatever may be the cause, there has certainly been a very marked decrease in the number of prisoners Deereru;e in within the last nineteen years. The number of prisoners in the convict prisons in 1854 was 3628, in 1861 it was only number uf 1369, and in 1869 it was 129G (Sixteenth lteport of the Directors of Convict Prisons, pp. 47, 48, and 49). The pnsone:rs.

number of prisoners in the other gaols on the 1st of January 1851 was 10,084, while on the lst January 1861 the number had decreased to 2468, and on the 1st January 1870 to 2029 (Forty-eighth R.eport of the Inspector-General, p. ix.). The decrease in population will by no means adequately account for this decrease in the number of prisoners, since the population, according to the census of 1851, was 6,551,970, while, according to that of 1861, it was 5,798,233. Admitting that the increased prosperity of Ireland may account for a great, perhaps the greater part of the diminution in the amount of crime shown by the above figures, it may be reasonably contended that the improved system of penal discipline has not been without its beneficial effects. At the same time it must be observed that a considerable number of prisoners, more especially of females (Forty"eighth Report, pp. xv. and xvi.; Sixteenth Annual Report of the Direetors of Convict Prisons, p. 12) are recommitted, so that prison discipline has not a lkcommitments. sufficiently deterrent effect upon certain classes of offenders. However it is probable that the greater proportion of such persons have not been senteneed to a long term of imprisonment; and I am inclined to think that few of those who have passed through the convict prisons relapsed into crime. The superintf'ndent at Lusk informed me that few prisoners come back; and he believes that, on being diseharged &om that prison, they readily find employment. If this is the case, the lesson to be learned would seem to be that severe, that is long· sentences, should be passed not so much upon consideration ot the apparent heinousness of the offence as of the previous convietions recorded against the offenders. The governor of Richmond Bridewell (for males) assured me that the class of petty thieves was the most hopeless and incorrigible of any. If a judge were to sentence a man who had stolen a pair of boots to seven years imprisonment, while he sentenced a man who had embezzled two or three huudred pounds to only one or two years imprisonment, some surprise might be felt by the public, and yet the sentences might be meted out with perfect wisdom and propriety, if the one man were an habitual thief, while the other had previously borne au unblemished character.

The construction of the prisons and the general discipline seemed to me much the same as at Pentridge. I have, further on, made some remarks as to the system of good-conduct marks, and the regulations by which prisoners rise from one class to another.

The prisoners seemed quite as healthy as those in Victoria. difference in their diet.

It will be observed that there is a considerable

As regardR the annual expense of the gaols, and the profits derived from prison labor, it will be observed from the blue books I send that there is a marked diffc•rence between the county and borough gaols on the one hand, and the Government convict prisons on the other.

In the first the expenditure, during 1869, was While the return of work was computed at ...

Thus the expenditure exceeded the receipts by

In the latter the expenditure was vVhile the work done was valued at ...

The expenditure therefore exceeded the receipts by only

£77 ,G50 12 1-?! 8,885 2 7l

£68,665 10 0

£38.579 9 9 18,884 H 9

£19,69'1. 15 0

In the one case the receipts amount to nearly one-half of the expenditure, in the other to only about one-eighth.

XXIV

Prisoners sentenced to penal servitude are sent first to Mountjoy, ""hence they pas~ to Spike Island, where they are employed principally upon public works; and finally they are sent to Lusk Prison, which is called an "intermediate" prison, because it is supposed to be intermediate between the strict confinement of Mountjoy, or Spike Island, and a perfect state of liberty. As the treatment of the prison era at Lusk presents some novel features it may be as well that I should give some account of what I observed on the occasion of my visit.

A walk of about ten minutes from the railway station brought me to the penal establishment at Lusk. There are scarcely any signs of a prison about it. The farm is separated from the road merely by an ordinary hedge. On turning down from the gate I saw two long buildings, somewhat like sheds, each consisting of a single long room or hall. One of these is used as a dormitory, and the other as the refectory and school room, but it also contains a few beds. In the neighborhood of these buildings were stacks and the usu'll offices connected with a farm. There were sheds containing stall-fed cattle and milch cows, a stable with the farm horses which do the farm IYOrk, and several pig$tyes. The barns and sheds have been built by the prisoners. Scattered about are the cottages of the warders. The crops grown are cereals, turl'lips, mangel-wurzel, carrots, and of course potatoes. The farm is about 170 acres in extent. It was originally a common, but the rights of the commoners were bought up by the Government. There are certain occupation roads running through it, which are kept in repair by the convicts. It is about thirteen years since the farm was established. The annual produce, according to the superintendent's statement to me, brings in about £2000. It is more productive now than when it was first started, as the ground is in better condition.

Tb ere was nothing to distinguish the dress of the prisoners from that of ordinary farm laborers in Ireland, except that it was not as ragged. They have about two suits in the year. Their better clothes they wear on Sundays, when they go to ehurch or chapel, and mingle with the ordinary congregation. Their hair is not cropped close, and they may grow their whiskers if they please; and, although there were certainly exceptions, yet, looking at their faces and general appearance, it was not easy to believe that they were eonvicts. The only marked difference to be observed between thei;- mode of working and that of the laborers, was that they were in closer groups, and were directly under the eye of the overseer. They were principally engaged in digging up potatoes. A cluster of about a dozen would be working around a warder. At the same time I observed here and there a prisoner who was employed at other work, and who was a long way off from any warder, so that if he had chosen to take to flight he would have been able to escape, at least for a time; but they scarcely ever attempt to run away. "\Vithin the last four years only one man has absconded; and, as the superintendent observed, he must have been mad, as he had only six weeks to serve, when he would have been discharged on license. Within the last year fiye men were sent back to .Mountjoy or Spike Island for misconduct, but as it was only of a trifling nature four of them were allowed to return within a month or so.

'£here are a few shoemakers, carpenters, and blacksmiths, but the great majority of the prisoners are employed in agricultural labor.

In wet weather they break stones for metal, and thresh corn, or are employed in other ways under sheds. There is no hospital at Lusk. If any person becomes seriously ill, he is S(mt to Mountjoy for medical treat­

ment. Before the prisoners are finally discharged they are also sent to l\fountjoy to be clothed; and it is there, I presume, that their portraits are taken. Every prisoner is photographed both when he enters and when he leaves an Irish gaol. Such a practice is of course very useful for purposes of identification. If, for instance, there is a doubt whether a prisoner is the person who has served a sentence in some other gaol, the likenesses are compared, and the question is at once decided.

Appended to your letter of the 27th July 1867, is a schedule of the heads of enquiries which it appeared to you desirable should be made. I now proceed to furnish answers to these enquiries as regards Irish prisons, as far as I am able to do so.

1, 2, 3, 4, 5. The nMmber of prisoners, their sexes, the number of prisoners under say sixteen years of age, the countries or races of the prisoners, their religion.

The nnm her of prisoners and their sexes in convict prisons on the 1st January 1870, was as follows:-Males .. . 887 Females ... 353 Total 1240

The number of prisoners in county and borough gaols at the same date was 2029

Total but as I do not know the proportion of males and females, or of debtors, I am obliged to take 31st December 1869, when there were, exclusive of debtors and lunatics-

Tried Untried

Jt.Iales. Females. 1081 513

210 70

Adding together the prisoners on the 31st December 1869, in the borough and servitude on the 1st January 1870 we have-

county gaols, and those under penal

Males 2178 Females 936 Total 3114

Instead, however, of taking the number of prisoners at any given date, it will be more convenient to take the number of persons committed to gaol during the year 1869. This will include persons ultimately sentenced to penal servitude, as they remain in county or borough gaols until sentenced. The number of commitments during any year is of course very much greater than the number of prisoners at ar1y particular date, as the immense majority of persons committed to gaol are released after a very short incarceration, as they have been guilty of trivial offi:mees punishable on summary conviction before magistrates.

CoMMtTMENTS DURING THE YEAR 1869.

I UNDER SIXTEE!!l.

1\IALES. FEMALES. ToTAL.

:Males. Females.

17,688 12,191 I 29,879 991 154

RELIGION.

EPisCOPALIANS, PRESBYl'!RIANS. ROHAN CATHOLICS.

I OTHER RELIGIONS. COULD NOT BE ASCERTAINED.

Males. Females Total. Males. ~'emales, Total. Males. Females. Total. I Males. IFcmales.l Tom!. Males. ~~ales.' Total. --- ---------- --- ,_ [---

2,011 1,650 3,661 652 340 992 14,912 l0,181 25,093 27 28 86 19 105

XXV

Of the population of Ireland in 1861, the date of the last census, 4,505,414 were Roman Catholics, 691,509 Episcopalians, 523,300 Presbyterians, and 78,310 belong to various other denominations.

'l'here can be no doubt that, with: very trifling exceptions, the whole of the prisoners in Ireland are natives of the country.

6. The quantity and quality oj'tkefood supplied to tltem. The accompanying Table for Richmond Bridewell may be taken to show the dietary of male prisoners in the

borough and county gaols of Ireland-( See 48th Report, p. xxx.).

IUCHMOND BRIDEWELL.

DIETARY.

Authorized hy the Inspectors-General of Prisons with the approval ofHis Excellency the Lord-Lieutenant, pursuant to the 3rd section of the 19th and 20th Vic., chapter 68, being the scale recommended by Dietary Commissioners, I 868.

I.-Dietary for prisoners whose terms of imprisonment shall not exceed one week.

Class 1. Males :-Breakfast (F. 7), 8 ozs. meal in stirabout and half-pint new milk. Dinner (F. 12), 14 ozs. bread and I pint vegetable soup.

Class 2. Females:-Class 3. Males and Females (Juveniles) under 15 years:-

Breakfast, 5 ozs. meal in stirabout and half-pint new milk. Dinner, not less than 8 ozs. brown bread and one pint vegetable soup. Supper, 4 ozs. brown bread.

I I.-Dietary for prisoners whose term of imprisonment shall exceed one week, for untried prisoners who do not maintain

Class 1. Males:­themselves, and for pauper debtors.

Breakfast (F. 7), 8 ozs. meal in stirabout and half-pint new milk. Dinner (F. 12), 14 ozs. bread and one pint new milk. Supper (F. 5), 6 ozs. bread and half-pint new milk.

Class 2. Females :-Class 3. Males and Females (Juveniles) under 15 years:­

Breakfast, 5 ozs. oatmeal and half-pint new milk. Dinner, not less than 8 ozs. brown bread and one pint vegetable soup. Supper, 5 ozs. bread and half-pint new milk.

NoTE.-Potatoes are to be substituted for bread, at dinner, on three days in the week in the following proportions Class 1, 3 lbs.; Class 2, 2?: lbs.; Class 3, 2~ lbs.

Roman Catholic prisoners on the first and last "\Vednesdays in Lent, and on Good Friday, are to receive in place of milk, 2 ozs. molasses at breakfast, vegetable soup at dinner, and tea without milk at supper, on those days.-5th March, 1868.

Females whose term of imprisonment does not exceed one week have at breakfast 7 instead of 8 ozs. of meal, and at dinner 12 instead of 14 ozs. of bread.

The scale for female juveniles is the same as that for males. Females whose terms of imprisonment exceed one week have at breakfast, 7 instead of 8 ozs. of meal ; at dinner, 12 instead of 14 ozs. of bread; and at supper, 5 instead of 6 ozs. of bread.

The dietary for convict prisoners is shown in the accompanying Tables.

7. The number qf turnkeys, matrons, and ot11er officers. As I have already mentioned (p. 2), the number of warders in some borough and county gaols exceed the

number of prisoners. There is therefore nothing to be learned by ascertaining the number of officers in the whole of these gaols; and it will, I think, be sufficient to give the number of offieers in the male and female prisons for the city of Dublin, viz.:-Richmond Bridewell (for males), and Grangegorman Penetentiary (for females), in each of which there is a large number of prisoners.

As shown by the Forty-eighth Report (p. 524.), there were in Richmond Bridewell, on the 30th December 1869, 215 prisoners. The list of officers, with their salaries, is given at p. 534 of the Annual Report. It shows that besides the medical officers and chaplains (who are non-resident), and the governor and deputy-governor, there are the following officers, viz. :-1 chief warden, 1 gate-keeper, 1 hospital superior, 18 wardens, 1 chief clerk, 1 school­master, 1 storekeeper, and 1 master of works, besides 1 hall porter, 1 carter and messenger, and 1 female cook and servant. The whole number of persons employed, exclusive of the medical men, chaplains, governor, and deputy­governor, was therefore 28. The number of prisoners fluctuates considerably in this gaol, thus, on the day of my visit, there were, as shown by the annexed return

RICHMOND (MALE) PRISON, DUBLIN.

MoRNING STATE OF PRISON, 26TH DAY OF OcTOnER 1870.

Under Rule of Penal Servitude.

Convicted at Commissions and Sessions { For ~;.1 odny .. · ..,.._Is emeanor .••

Assaults and breaches of the peace ... ... . .. Breach of Revenue and Excise Laws under Poor Law Act .. . f

For Larceny, illegal possession of goods, &c. ... ... ...

Committed summarily by Magistrates Ao dangerous lunatics .•• ... ... .. .

Untried Prisoners ...

I Vagrancy Drunkenness ...

l Military offences under sentence of court martial

{

For Trial. .. Further examination ••. Desertion

Total confined

62 31 26

105 2

3 7

16

20 9 l

282

R. BOYD, Governor.

The governor informed me that this prison, having been built a good many years ago, is not so fit for its purpose as more modern prisons, and the Inspectors-General remark (Forty-eighth Report, p, 528), that it is by no means perfect. It is therefore probable that in a better constructed prison so large a number of officers would not be required.

No. 81. D

XXVl

In Grangegorman Penitentiary the number of 1;1risoners, on the 31st December 1869, was 119 (Forty-eighth Report, p. 538). A list of the officers, with their salaries, is given at page 547 of the same report. It appears that, exclusive of the chaplains, governor, and female superintendents, there were 21 persons employed, of whom 16 were females. The female superintendent informed me, on the day of my visit, that there were then 133 prisoners and 14 officers. The Report (Sixteenth) of the Directors of Convict Prisons does not give the number of officers ; but I was informed on my visits to the different prisons that, at Mountjoy Male Prison, there were 165 prisoners and 24 discipline warders; at Mountjoy Female Prison, 335 prisoners and 42 officers; and at Lusk Prison, 63 prisoners and 8 officers.

8. Thq annual expense qf the prison. The average daily number of prisoners in the county and borough gaols in the year 1869, including debtors,

was 2205-8 (Porty-eighth Report, p. 43, Table XVII.), and the net expenditure was £77,650 12s. 7!d., making the average total cost of each prisoner per aunum £35 4s. o·e6d. This average varies greatly; the lowest is in the Antrim Gaol, at Belfast, which is only £17 6s. 5d. ; and the highest in the Leitrim Gaol, at Carrick-on-Shannon, which is £43 8s. 4d.; in the City of Dublin Gaol (Richmond Bridewell) it was £25 6s. 6d.; in the Grangegorman Penitentiary (for females) it was £40 3s. 8d.

The average rate per prisoner for staff charges in 1869 was £19 16s. ld. See Fifty-eighth Report, p. xliii. In the convict prisons the expenditure :(or the year ending on the 31st March 1869 was as follows :-

Mountjoy, :Mountjoy, Smlthlleld and Spike Island. Total. -- Males. Females. Lusk.

See Sixteenth Report of Directors of Convict Prisons; p. 46· ... ... £7,643 13 5 £9,516 10 9 £4,287 16 2 £17,131 9 5 £38,579 9 9

The number of prisoners in the year 1868 was as follows (Seep. 49) ... ...

1\:laking the average expenditure per 154 409 74 696 !

' 1,333

prisoner as follows ... . .. £49 12 8 £23 5 41! £57 18 10! £24 12 3! l

9, 10, and 11. The manner in which the prisoners a1·e employed; the quantity and vallte of the articles made by them, or the value qf their labor; if tkey are employed in agrifntltural labor, or in public works, the cost of materials supplied to tkem to be worked up.

I cannot give any information as to the cost of materials supplied to prisoners · hut Table XVI., in the AppendL'l to the Porty-eighth Report of the Inspectors-General, pp. 34 and 35, gives full details as to their employ­ment, and the value of the articles made by them, as far as regards the county and borough gaols.

As regards the convict prisons, I must refer yon to the passages in the Sixteenth Report of tJie Directors, which I have initialed. As to the Mountjoy Male Prison, see pp. 11, 12, and 13; as to Mountjoy Pemale Prison, see p. 33; as to Spike Island, see p. 24 ; and as to Lusk Prison, see p. 41.

12. The system of discipline pursued, whether solitary confinement, the silent system, o·r an,y other. On the whole the system in the convict prisons is similar to that pursued at Pentridge. Prisoners on their

first arrival are kept in separate confinement, and after a time, which varies according to their conduct, they are placed in the associated labor class. During the solitary confinement period each prisoner works in his own cell. The prisoners, however, see each other during divine service and the time set apart for exercise. When I visited Pentridge the prisoners, even when taking exercise, could not see each other, as each man walked up and down by himself in a space enclosed by high walls. This plan is not followed in Ireland ; the prisoners walk in files (each prisoner a certain distance behind the one in front of him) during the period set apart for exercise, so that they can see each other.

The silent system is not adopted.

13 and 14. The nature of the :punishment inflicted for breaches of discipline, the average number of times such punishments are infl~cted.

Punishments are of various kinds, such as corporal punishment, stoppage of diet, retardation of the period of liberation; but it is very seldom that it is necessary to have recourse to corporal punishment. At Richmond Bridewell, I found that exclusion from school was one of the punishments. The 12th Table in the 48th Report of the Inspectors-General (p. 26) shows the number and nature of the punishments in the county and borough gaols during the year 1869. As regards the convict prisons, the governor of :Yfountjoy 'Male Prison reports that the number of punishments during that year was remarkably small.-(Sixteenth Heport of the Directord of Convict Prisons, p. 10.) The total number of offences was 67 (p. 11). In Mountjoy Female Prison there appear to have been two violent assaults upon matrons; in the one case a sentence of additional punishment was given, in the other the prisoner was sent to the criminal lunatic asylum (pp. 30 and 31). In Spike Island corporal punishment was inflicted in five instances, in three cases for assaults on warders, and in two for genera] misconduct and refusing to work (p. 22). In I..usk Prison in three instances prisoners were removed to Mountjoy Male Prison (p. 39).

15. Wludlter the pri.~oners, on being di.scharged, are furnislted with any swm qf monep, and if so upon what scale.

In all the prisons, both convict and county and borough, the prisoners are credited with certain sums as wages for their labor, which are paid to them on their discharge. In the county and borough gaols both sentenced and untried prisoners are thus entitled to earu wages. There is, howe.ver, an exception in the case of prisoners sentenced to hard labor, who cannot earn any. This exception, the governor of Richmond Bridewell informed me, worked badly. A certain portion of the amount standing to a prisoner's credit is paid to him on his discharge, and the balance after three months, should his conduct in the meantime be favorably reported upon. The scale upon which the payments are made in the convict prisons will be found in the books entitled "Classification of Prisoners," (Mountjoy Male Prison, pp. 5 and 6; Mountjoy Female Prison, p. 6). The scale for male and female prisoners appears to be the same. The system is believed to be very beneficial.

The prospect of receiving a snm of money on their liberation must stimulate prisoners to exertion, and the knowledge that the balance will be forfeited if their conduct is not satisfaetory after their discharge, must tend to prevent them from returning to vicious courses. It is also clear that if a prisoner is discharged in a penny less state he must sometimes be almost driven to commit crime, as some little time must frequently elapse before he is able to obtain some honest employment.

16. Whether any, and if so, what deps a1•e taken to find employment fo1' the prisoners on tkeir discTtarge. I regret that I omitted to make sufficiently definite enquiries on this head, My impression, however, is that

no systematic steps arc taken. The prisoners discharged from Lusk seem generally to find employment as agricultural laborers. There appears to be no prejudice against employing them.

XXVII

17. Wkether any, and ·if so, what indulgencies or rewards are granted prisoners on account of good conduct. My remarks on this head will be confined to the convict prisons. The rewards of a prisoner consist in his

being promoted from class to class. At first he is placed in separate confinement. If his behaviour is reported :;s "very satisfactory" he will be promoted to the second class in two months; if not, his promotion may be delayed for six months ; in like manner, according to his conduct, he rises in succession to the second class, the first clas~. and the advanced class, and then, after serving for a certain period, he is qualified for Lusk Prison. where th0 treatment is of a less rigorous character and the dietary scale is still better than at Mountjoy or Spike Island. The Classification of Prisoners, pp. 3 and 4, and the "Notice" show the Regulations under which a prisoner may ri~e from one class to another.

18. What proportion of prisoners is found guilty of crimes subsequent to their discharge. Information on this head will be found as regards county and borough gaols in the 48th Report of the

Inspectors-General, pp. 15 and 16, and in Tables II. and III., pp. 4, 5, 6, and 7 ; and as regards the Convict Prisons, in the 16th Report of the Directors, p. 12. I would beg leave to call attention to my previous remarks ou this subject at page 3.

19. Tlte average number of deaths. According to the 47th Report of the Inspectors-General, p. 33, the 48th Report, p. 32, and the 16th Report

of the Directors of Convict Prisons, p. 49, the average number is as follows:-

1866. I 1867. 1868. 1869. I

---------------In County and Borough Gaols ... 65, or I in 498 42, or I in 787 32, or I in 1000 19, or 1 in 1715

In Convict Prisons ... ... ... 23 out of 1548, 13 out of 1337, 14 out of 1333 11 out of 1296, or 1·4. or·9 or·6 or ·8

20. The number of prisoners in hospital. During 1869 the daily average number of prisoners confined in the county and borough gaols was 2,123·82

(48th Report, p. 11), and the daily average number in hospital was 79•79 (p. 23, Table IX.); the daily average number of patients prescribed for out of hospital was 89"42.

The following are the statistics as regards the convict prisons.

No. in Received In Hospital Admitted Custody on lst January during the Year on lst January during Discharged. Died.

1869. 1869. 1869. the Year.

---------- ---------- ---------- ---Mountjoy Male Prison ... ... 141 161 1 81 78 1 Mountjoy Female Prison ... ... 403 63 8 271 254 7 Spike Island Prison ... ... 695 146 12 332 327 3

In Custody on 31st December 1869 ... 682 Average daily number of sick --------- ... ... 3

Lusk Prison ... ... ... 106 2 sent to Mountjoy Prison Hospital. Smithfield ... ... ... ... 81

21. The number discharged on account of ill health. I can furnish no statistics under this head. I do not think it is at all usual to discharge prisoners on account

of ill health.

22. The number ofpri.~oners becoming insane. Table IX., Forty-eighth Report, p. 23, gives the number of lunatics in custody during 1869; but this does

not show the number of prisoners becoming iusane, as lunatics are still committed to gaol.-See p. xxix. Neither the Report of the Directors nor the Appendix to it conveys very definite information on this head.

It appears from the Report of the Medical Officer at Mountjoy Male Prison that, during 1869, seven persons were removed from that prison to Spike Island, on such grounds as these: '' being of weak intellect " and "unfit for the discipline of the prison," "becoming melancholy," or "being very eccentric."

During the same years patients were admitted to Spike Island Hospital affected with the following diseases:­Melancholia, 1; malingering, 1; debility, 38. It appears tbat under the head of debility are recorded the cases of prisoners removed from the punishment cells for weakness, either mental or bodily. In several instances this was occasioned by an obstinate determination on the prisoner's part to abstain from food-(Sixteenth Report of the Directors of Convict Prisons, p. 26). 'l'hc medical officer at Mountjoy Female Prison reports (Thirty-sixth Report, p. 34) that among the female prisoners there is a tendeney to insanity, of which six cases were reported, being two less than in the preceding years.

It would appear that none of the prisoners at Lusk became insane during 1860 (p. 443).

23. The provision made for tlte education of prisoners. I would refer to the Forty-seventh Report of the Inspectors-General, pp. 21 and 508, and the Forty-eighth

Report, pp. 21 and 23 and p. 532, for information regarding the education in ~ounty and borough gaols; and to the reports of the schoolmasters and schoolmistresses as regards convict prisons, contained at pages 10, 29, 37, and 4,4, of the Sixteenth Report of the Directors of Convict Prisons.

I was informed, at Mountjoy ;\fale Prison, that some of the prisoners attend school only three hours a week, others an hour every day. At :Mountjoy Female Prison all the prisoners attend school for at least a year, even if they have received some education before their imprisonment. It would interfere with the discipline if any were excused from attendance ; besides, the sclwnlmistrcss told me that there were none of them who were at all well educated, cvc·n for their class in hfe. At l{idnnoncl Tiride1nll l "'as informed that prisoners above twenty-five do not attend school. l~xdusion from school is considered a punishment; and, as I "'ent round the prison, I more than once heard a prisoner request the gowrnor for permission to attend school. I ente1·cd the school room. There was a great dilference, as might bo t·xpcd;c<l, in the proficieucy of the puFils. One lad, or young man, read

XX.Vlll

remarkably well, and would have done credit to a teacher of elocution. Hewas a runaway sailor. The school­master said that his pupils did not advance as rapidly as boys at school would. He attributed this to his having no means of punishing inattention and want of diligence, At Lusk, one branch of instruction is of a novel kind. There is a large model of a ship, and the prisoners are taught to know every part of the rigging, and if the order is given to put about ship, they at once haul the proper ropes. It is said that these lessons have proved of considerable advantage to the men after their discharge, as not a few of them have emigrated, and they have been able to make themselves useful on the voyage.

24. The provision made for their religious instruction. In all the prisons which I visited (with the exception of Lusk, where the prisoners attend church or chapel

along with free persons) there were Roman Catholic, Episcopal, and Presbyterian chapels, or at all events rooms set apart for worsh1p according to the forms of these denominations; and services are regularly performed in them by the chaplains, in some cases on week days, but always on Sundays. In the absence of the chaplain, prayers are read by the senior warder.-See " Rules to be observed in Mountjoy Jlvfale Prison," p. 20.

25 and 26. The treatment adopted with malingering prisoners, -tc., &c. How prisoners who become insane are disposed qf. and how those feigning insanity are treated.

I did not see any of the medical officers, and therefore can give no satisfactory answer to the enquiry as to the mode of treating persons suspected of feigning illness or insanity. It appears that prisoners will sometimes keep up the pretence for a long time, and then suddenly desist. I have, on the other hand, an impression that I have read of one or more cases where prisoners were treated as shamming, but ultimately turned ou~ to be clearly insane. Prisoners on becoming insane are transferred to a lunatic ll>~ylum.

27. Is there any and wkat special treatment for juvenile criminals. There are reformatories to which juvenile offenders may be sent, but I did not visit any of them. I did not

observe any special treatment for juveniles in the prisons I visited.

28. Are there any regulations for remission of sentences suck as are in force kere, and if so, lww are tkey found to operate.

There are regulations under which prisoners may be released from prison before the full terms of their sentences have expired, when they receive a license. This license is liable to be forfeited for misconduct, and in case of such forfeiture the prisoner is liable to undergo a term of penal servitude equal to the portion of his sentence which had not expired when his license was granted. These regulations, as I was assured, work well, and indeed they appear to form one of the chief motives to good conduct on the part of the prisoner. The two notices, which I enclose (schedule 11 and 12), show the earliest periods at which conVIcts, male and female, may obtain licenses. The regulations set forth in these notices should be read in connection with the books entitled "Classification of Prisoners." If I am not mistaken, under the system in force at Pentridge, there are only three classes, and as a rule prisoners pass at certain fixed periods (unless in ease of misconduct) from one class to another, and are liberated after they have served two-thirds of their sentence. There appear to be more stages through which a convict passes under the Irish system. On entering a convict prison he is placed in the 3rd class ; when he has obtained a certain number of marks he is placed in the 2nd class, and so he rises to the 1st class, and lastly to the advanced class, and after continuing for a certain time in that class, if he has obtained the qualifying badge, he is removed to Lusk, where he enjoys comparative liberty. Even his release from prison is not altogether his last stage, as he is liable to produce his license when called upon to do so by a magistrate or police oflieer. The several classes of prisoners are distinguished by dresses and badges.-( See Classification of Prisons, p. 4 of the Regulations.)

I cannot but think that it is an advantage to multiply, as far as can conveniently be done, the number of classes or stages, through which a prisoner must pass in his progress towards freedom. It may be said that if a prisoner knows that a record of his conduct is kept, and that, if it is not satisfactory, he will not be released so soon as he otherwise would be, the effect upon his mind will be the same as if it were necessary for him to pass from one class to another, his advance to a higher clasa depending on his having obtained a certain number of good-conduct marks in the class below it. This might be so, if criminals were in the habit of looking far into the future and con­sidering the effect of their actions, but such is notoriously not the ease. If in a school, prizes were to be awarded to the pupils at the end of the session, merely according to the manner in which they then passed an examination, there can be very little doubt that the system would not have produced such diligent scholars as if the boys had daily changed places according to their proficiency, as in the latter case they would at once have been impressed with the importance of studying their lessons.

As far as I can judgt>, it is by no means very usual for a prisoner in Ireland to earn his discharge within the very 8hortcst period within which it may be earned consistently with the regulations. I am far from saying that it is the case at Pentridge at the present time; but if it should ever hereafter happen to become almost a matter of course that a prisoner should receive his discharge after serving two-thirds of his sentence, the object sought to be attained by the regulations as to the remission of sentences will be entirely frustrated. If, for instance, a prisoner sentenced for six years will (unless his conduct has been extremely bad) be released at the end of four years, the sentence for the longer term will have become a mere legal fiction, and it would have been simpler if the regulations had been abolished and the judge had passed a sentence of four years. A prisoner sentenced to death, even if he is recommended to mercy, feels that he has, at the best, merely a hope of escaping with his life; but if sentence of death is simply recorded hfl knows that the sentence is only a form, and he at once translates "death" into "hard labor." If possible, a prisoner should not be led instinctively to substitute four for six, or six for nine, when he receives a sentence of six or nine years, as the case be. It is true that his liberation will be retarded, if his conduct is very bad; but if the retardation is to place only in the case of offences of such gravity that an additional punishment might be inflicted upon him for committing them, the same end would have been attained, and by more direct means, if he had been originally sentenced to a shorter term of imprisonment, and he had been imprisoned not merely for the full term but for a further period, in conformity with a subsequent sentence passed either by the prison authorities or by visiting justices.

I enclose forms of the licenses granted to male and female convicts, and also a memorandum relating to them (schedule 17, 18, aud 16).

29. Does tke labor qf tke prisoners ente1' into competition witk .free labor, and ij' so, wkat ([/feet kas it upon tke lrztter.

In the prisons I visited I found the prisoners employed in picking oakum, shoe-making, making coir-mats and weaving woollen mats. As I have already mentioned, the prisoners at Spike Island arc employed on public works, while tliose at Lusk were, with very few exceptions, employed in agriculture. In the female prisons the prisoners are employed in shoe-making, shirt-making, and washing.

A good deal of the labor is directed towards the production of articles required in the prisons. Thus the female prisoners are employed in making clothing for the prisoners in Spike Island. The boots worn by the prisoners are all made m the prisons. They are of three different c1asses, the lighest being those worn by the inmates of Mountjoy, who never go beyond the prison walls, while for those engaged in agricultural operations at Lusk strong heavy boots are necessary.

XXIX

The crops raised at Lusk are regularly sent to Dublin, and sold there by a salesman on account of the prison. I was told that the making of coir-mats is a branch of industry not followed outside of prisons, so that in this

case there is no competition with free labor. Some of the female prisoners are employed in making shirts for a firm in Manchester.

Whatever may have been the ease at one time, there are, a~ I was assured, now no complaints that prison labor is entering into injurious rivalry with free labor.

From the 16th I~eport of the Directors, p. 9, it appears that all the public departments in Ireland (following the example set in England) are supplied with mats and hearth-rugs made by prison labor.

30. Tke legislative provisions (i:f an.lf) far tke prevention of crime and tke operations of suck pro11isions. As you are aware the law of Ireland is substantially th~ same as that of England as regards crime. There

are a number of Acts of Parliament relating to Irish prisons from 7 Geo. IV., c. 74 downwards. ' I have the honor to be, Sir,

Your most obedient servant, (Signed) J. DENNISTOUN WOOD.

P.S.-The governor of Richmond Bridewell (from whom I received much information), expressed a desire to see a report respecting penal discipline in Victoria, and I promised to communicate his wish to you.

J.D. W.

SCHEDULE.

1. Forty-Seventh Report of the Inspectors-General on the General State of the Prisons in Ireland, 1868. 2. Forty-Eighth Report, &c., 1869. 3. Sixteenth Annual Report of the Directors of Convict Prisons for Ireland, for the year ending 31st December 1869. 4. Rules to be observed in Mountjoy :Male Prison. 5. Rules to be observed in Mountjoy :Female Prison. 6. Mountjoy Male Convict Prison-Classification of prisoners. 7. Mountjoy Female Convict Prison-Classification of prisoners. 8. Regulations showing when male convicts are eligible for intermediate prisons, and female convicts for refuges, 9. Mountjoy Male Prison-Daily routine.

10. Richmond Bridewell-Regulation and distribution of a prisoner's time. 11. Table showing the earliest periods at which prisoners may qualify themselves for admission to the intermediate

prison. 12. Table showing the number of marks which female prisoners must obtain to become eligible for license. 13. Record as to a prisoner who has passed through the different stages in the shortest time. 14. Record as to a prisoner whose liberation has been retarded by misconduct. 15. Particulars as to habitual offenders. 16. Memomndum as to liccnRes. 17. License to a male convict, and conditions of license. 18. License to a female convir;t. 19. Notice to candidates for employment in prisons. 20. List of ,:ounty and borough gaols.

The Honorable the Chief Secretary, Melbourne.

APPENDIX B. CIRCULAR TO SHERIFFS.

Royal Commission on Penal and Prison Discipline, Melbourne, 24th August 1870.

StR,-By direction of the Commissioners, I have the honor to request that you will be good enough to furnish them with a separate detailed return of each of the gaols, penal establishments, and places of penal detention under your supervision, fmth the following particulars, viz.

l. The designation and site of the establishment, and the particular circuit or sessions district or districts from which prisonerR are committed.

2. The number of prisoners undergoing sentences on the 31st .August 1870, distinguishing males from females, and adults from youths.

!J. A tabulated statement of the numbers undergoing imprisonment, specifying their several offences and sentences, and distinguishing those sentenced to hard labor and those sentenced to imprisonment without hard labor.

4. 'rhe number of persons awaiting trial on the 31st JY1arch, 30th June, and 31st August 1870. 5. The means at disposal to classify the prisoners according to their senteuces, or their relative degrees of

criminality, and the extent to which, or the mode in which, such means have been used. 6. A tabulated statement of the number of all prisoners who have been previously convicted in Victoria

and elsewhere, the number of all such convictions, and the source from which information thereof bas been obtained.

7. A statement of the natme and amount of labor to which the prisoners are subjected, specifying whether the labor is performed within or 11ithout the walls of the establishment, the hours of labor daily, the mode by which the amount performed by each prisoner is ascertained, the number of prisoners employed at each kind of bbor, and the special labor imposed on those undergoing hard-labor sentences.

8. A copy of the dietary scale or sc~1les in usc in the establishment. 9. A copy of the general regulations enforeed in the establishment.

10. The nwdes mlopted to r.:gister the dates of admission, release before the expiration of the sentence, and lbal ; the lJrevious convictions, and identity of the prisoner therewith; and the general concluct in confinement of ench individually.

11. The amount of money furnished to, the means used to procure employment for, prisoners upon their discharge, stating whether there are any Prisoners' Aid Societies in the district.

] '3. 'I he means at disposal, and 1 hose adopted, to separate youthful from adult uu~u,,~,D. l:l. A of the building and i~s condition, especially with reference drainage and ventilation,

of its adequacy or othcrwi&e for tho purposes for which it is used. No. 31. E

XXX

The Commissioners will also be glad to receive from you such information as your practical experience and observation may have suggested relative to the following subjects:-

1. The efficiency or otherwise of the penal system now in operation, in the direction of repressing crime and reforming criminals.

2. The best means of increasing its efficiency for those ends. 3. The practicability of turning the labor of the prisoners to profitable account, so as to make them

contribute to the expenses of their maintenance. 4. The sufficiency or otherwise of the existing dietary scale. 5. The possibility of lessening the number of gaols or other penal establishments in your district. 6. And, generally, the possibility of economising expenditure in the establishments.

You will oblige the Commissioners by giving the fullest and most explicit information on all theforegoingpoints, and it will be necessary that your reply to this circular should reach Melbourne, if possible, on or before the 5th September next.

I have the honor to be, Sir, your obedient servant, DAVID BLAIR, Bon. Secretary.

APPENDIX C.

SUMMARY OF REPLIES TO FOREGOING CIRCULAR.

Ararat Ballarat Beech worth Castle maine Geelong Kilmore !faryborough Melbourne Portland Sandhurst

Ararat ... Ballarat Beech worth Castlemaine Gee long Kilmore :Mary borough J'tfelbourne Portland Sandhurst

NUJIU!ER OF PRISONERS CONFINED IN GAOLS:-

~'otals

Total Prisoners

PERSONS AWAITING TRIAL:-

Total

CoUNTRY GAOLS,

Males. 15 61 59 51 22 9

17 187 26 45

492 148

640

FeDll\les, 7

18 11 8

10 1 4

79 1 9

148

3 8

10 3 3 1 2 6 0 9

45

1. There were 305 male and 69 female prisoners undergoing sentences, and 39 persons awaitillg trial in countrv gaols.

"2. The larger proportion of the were on short sentences of one year and und~r. But in some of the gaols, especially in Tieechworth, there were a few long-sentenced prisoners of from three to e1ght years.

3. Effective means of classifying prisoners do not, as a rule, exist. 4. The prisoners are chiefly employed in prison duhes (cutting wood, cleaning, cooking, &c.); but in some

few instances they are allowed to work for the local municipalities, either gratuitously or on payment of a portion of the cost of gnarding them while so employed.

5. The dietary scale is uniform, and the general regulations issued by authority are observed in all the gaols. 6. Prison registers are kept in all the gaols. 7. l'\o assiEtance (except in rations, at Beechworth) is given to prisoners on their discharge, nor are any means

taken to find employment for them. No Prisoners' Aid Societies exist. 8. The buildings are all described as being sufficiently large and suitable for the purpose.

DAVID BLAIR.

MINUTES OF EVIDENCE.

FRIDAY, zoTH JANUARY t871.

Present:

His Honor Sir W. F. STAWELL, in the chair;

Hon. A. Michie, :M:.L.A., W. Templeton, Esq., P.M., Hon. Judge Bindon, R. You!, Esq., :M.D., C. E. Strutt, Esq., P.l\:1., D. Blair, Esq., M.L.A.

His Honor Sir Redmond Barry examined.

1. You have held the office of judge for nineteen years ?-I have. z. The subject of sentences has been a special matter of enquiry, and it is suggested that the

present enactments place too much in the discretion of the judge, and in that way lead to an apparent inconsistency or inequality of sentences-thus, for various kinds of larceny or felony, the punishment may vary from imprisonment for a day to imprisonment for fifteen years ?-This is so large a subject that I find difficulty in giving a succinct answer. The difference in the amount of punishment awarded may be in some measure accounted for when it is borne in mind that, in this country, sentences are passed either by a sole judge, as in the Supreme Court, or by several, as in the courts of general sessions and petty sessions. The circum­stances which operate on several judges mu~t be different from those which influence a sole judge. A judge in the Supreme Court knows nothing, more particularly when on circuit, beyond what is brought undet· his judicial notice in eaeh case. Representations, such as in Great Britain are, by presentments of jmies, by addresses, special commissions, or otherwise, brought nuder the notiee of the judges of are not made to a judge in this country. He knows little or nothin~ from extrinsic sources of the causes which lead to the commission of crime in particular localities, which he visits only occasionally. He, therefore, draws his conclusions from the merits of the case, and graduates the punishment according to what he sees and hears. The justices of the peace in general sessions bring to bear their local knowledge of the condition of the district-also their knowledge of the character, conduct, and credibility of the different witnesses,

and suitors. Their decision is a collective one-sometimes one of compromise. In courts of petty sessions, the conduct of the prosecution being delegated not to professional men in all cases, but to constables and others, disclosures are made not usually made in other courts, aml representations by persons with whom the prosecutors and police have confidential communicntions are made in the presence of the accused. These come with a sort of semi-official weight, and, although not within the strict rules of evidence, are, if not denied by the prisoners, acted upon. Circumstances in each instance put those who preside in the different courts in possession of evidence of different degrees of value, and of different character-consequently, uniformity in the appropriation of punishment cannot be expected. Again, punishment is regulated usually according to the novelty, the enormity, or the frequency of commission of the particular crime. A crime of rare occurrence, but dangerous to society in its nature, must, on its appearance, be repressed in the bud by !md exemplary punishment. Breaches of the peace and common larcenies may be considerably aggravated by the attendant circumstances. Great ferocity and brutality in the one case, aml di:<regard for confidential relations in the other, with the constant recurrence of offences of the same nature about the same time in certnin places, may impose the necessity for making one, which would otherwise be the subject of a month'H imprisonment, to be met with a mueh more severe punishment. Horse-stealing was so prevalent some years since that it was absolutely necessary to deal with it in a stern and t·esolute manner. Sentences of six, se>en, or eight years were then by no means uncommon, because nt that time stealing a horse was not simply depriving a man of a particular species of property, but of the means of his subsistence. Horses were generally stolen from persons making their way to the goldfields, and a man had entailed on him loss of time in looking for his horse and prosecuting the thief~ besides having to incur expenses inordinate, when compared with those to which a person robbed of his hm·se at the present day would be exposed, being meanwhile unable to puraue any steally employment. By a firm adherence to this just severity the crime was repressed, whereupon the severity was relaxed. Horse-stealing is still deserving of different treatment in different districts; in some, the animals are numerous, consequently of small value; the effective organizntion of police renders the apprehension of the thief tolerably certain-the crime is of rare occurrence there. In other districts the nature of the country gives facilitiet~ for removing the stolen horse across the bm·der, and renders the recovery of the animal and captul'e of the thief difficult, if not impossible. The offenders oppress the inhabitants and enjoy almost an immunity. When such men are prosecuted to conviction, it is nsunlly f(mml that they are old and practised offenders who have defied the law. To treat them as the horse-stealer mentioned before would be mistaken mbdirected leuity, most injurious to the comm1mit,y. Larceny by an adulterer may present itself in remarkably diflerent phases of aggravation. In one case, the prisoner, a thoughtless simple-minded accomplice of the woman, may have been persuaded to take property of her husband; in the other case, a designing adulterer elopes, manifestly acting with an independent larcenous intention to deprive the owner of his property, who, having gratified his first imention, and satisfied the second, diseards tho woman. Although not punishable criminally ior the adultery, the latter ]arcony obviously requires a different degree of punishment. But, in addition to these circumstances, which vary the nature and quality of the offence it.self, there are other· elements to be taken into consideration ; the age, social condition and standing, education, opportunities of exercising 8elf-control enjoyed by !t prisoner ; his poverty, ignorance, neglected state, undue confidence unwisely placed in him without proper precautions, the temptation or provocation to which he hns been exposed; these and others are to be weighed in each case; and, unless a discretionary power to meet out punishment according to the deserts of the criminal be left unfettered, great injustice must be done. If a compulsol'y system of uniformity be enforced by Act of Parliament, results may be expected such as were furnished when so many classes of offences were punishable by death. Juries will, as formerly, take on themselves to determine that the punishment to which the prisoner is exposed, is unduly severe, and will acquit in the face of the clearest evidence ; or, if not prepared

PENAL, a

Sir Redmond Barry,

:z.oth Jan. 1871.

Sir Redmond Barry,

continued, :totn Jan. 1871.

to violate their duty openly, will evade the perform<~,iCZl of it by not to agree on theie verdict. I venture therefore, to condense tho conclusion at which I arriv<>, by saying that any approach to tho change contemplated, which would limit the discretion of judges or alter the mode of admini~tering punishment, will require n very extensive comparison of the JiJtercnt Actii ol' Parliament which form our criminal code and a careful examination of the uhnost endless variety of eireumstanccs which distinguish one offence in degree of criminality from another.

3· Following out the observations you have made, do you think the sentences as pronounced should be carried out, or that a regulation which allows of their mitigation, dependent upon the good conduct of the prisoners, should be still in force ?-Perhaps you will allow me to read what I have already written upon the subject in relation to the regnla.tions respecting remissions of sentences of prisoners.-[ His Honor read his observations. Vide Appendix.]

4· The Commission wish to have your opinion as to the expediency of regulations by which prisoners are, as a right if behave well, entitled to a certniu reduction of the punishments inflicted on t.hcm. At present, persons convicted the first time are entitled, after service of three-fifths of the sentence, to their discharge. It has appeared to the Commission that that question has a very intimate relationship to the first branch of the enquiry, viz., the limiting of the discretion in a judge as the amount of punishment ?-I have felt that, on many occasions, a very inconvenient matter to with. 'Vhen those regulations were first promulgated, I had them read in conrt, and, a ,·cry aggravated case coming before me, I graduated the punishment so that the prisoner, getting the benefit of abbreviation of sentence to which he would be entitled, still had to scrYe wlmt I cm1sidm·ed to be a sufficient length of time. This gave to the public, not acquainted with the object, the idea that the sentence was one of extreme and disproportionate hardship and severity. I will explain what I meun. It was an assault upon a woman, attended by very aggravated circumstances of brutality. The ordinary sentence would have been one of fifteen months imprisonment, with or without hard labor ; and that would have been reduced hy the regulations to ten months in gaol. As I felt the man ought to spend fifteen in gaol, I sentenced him to twenty-two months, of which a third would be remitted. I told him so, and ell;plaincd the reason. I do not consider lt is fair to the judge that the sentence be pronounces in open court should be altered by regulations. It is true that power to make these regulations is given by Act of Parliament, ~till, in my opinion, such a delegation of legislative power to the Executive or Administrative braneh of the Government, so in modern days, is vicious in principle. The judicial sentence is deprived of one-thit·d of its weight; for while it is announced publicly that a pri~oner is sentenced to (say) fifteen rnouths, he simpers his way from the dock, knowing he is to remain in gaol for ten months only. The public ought to know, are supposed to know, but do not know this, and, to the astonishment of the spectators, they find this prisoner, supposed to be punished with such remarkable severity, at large five months before the time when his sentence, as it was under,~tood, had expired.

5· Is not that a very exceptional case, taken in connection with the subsequent consideration of a possible misconstruction by the public ; would not that afford a very strong reason indeed for enforcing the sentence whieh tho judge actually does pronounce ?-Certainly; I perfectly agree with the conclusion to be drawn from that question. The judge is not responsible for the mode in which the sentence is calTied out; but as to his judicial opinion of the gravity of the offence, and the proportionate amount of compensation to the public to be made by the prisoner he has to deeide, and for that he is responsible. What he says should be interpreted truly ; and it is but fair, to the administration of the law itself as well as to him, that the sentence thus pronounced should not be affected by such a remission over which he cannot exercise any control.

6. You prefer that the sentence should be carried out in its integrity, and that a prisoner's bad conduct should be followed by an increased sentence rather than that the sentence passed upon him should be abated by good conduct?-Yes. The subsequent bad conduct iRa subject matter for penal discipline, the consideration of which shoulrl be kept altogether apart from the judicial sentence passed on the primary offence. I have before me several instances of such secondary punishments.

i· And which sentences were in nowise mixed up with the original sentence fixing the period cf their punishment ?-In no way whatever. They were cumulative. I am not to be understood as saying that a sentence is to be carried out in its integrity in all instances, because that would improperly limit the exercise of clemency on the part of the Crown, and prevent the correction of possible error. \Yhat I wish to convey is that the abbreviation of the period of punishment should not be effected in that manner, that is to sa-y, by reason of the prisoner's good conduct in gaol; for this he can get credit in another way. It is well known that if a man be sentenced to any period of imprisonment, and it is discovered that he was improperly convicted, a reference would he made to the judge, and if there was reason to believe, by the facts brought to light and his report, that such was true, that would lead to a rerni,;sion of the sentence. Thus the judgo is directly instrumental in this remission. \Yith the other he is not even incidentally connected.

8. Referring to the first question put to you with reference to the wide latitude now allowed by Act of Parliament, and which being allowed is naturally acted upon by ditTcrent judges in fixing the pm1ishment given for the same offences, according to the particular amount of turpitude of each case, the Commission were very much struck with your Honor's observation as to the great differences which we all know to occur with respect to the intrinsic baseness of the crime ; but, allowing for nJl those differences, is not yonr Honor of opinion that the wide latitude now avnilablc to judges might be judiciously limited in respect to the large number of case:> whore men are tried for second and third offences ? The observations your Honor has maile would, as it would appear, equally apply, sny to a tenth offence, which may have been one of certain comparatively venial acts. Allowing for all these v;:rying circumstances, and the natural­almost inevitable acting of judges upon those variations-would not your Honor modify the general con­clusion to which you have invited us in reference to the principle which applies to the numerous class of caseB I have mentioned ?-That has been dono in England. I drew attention to that some few months ago. There is a practice now usually observed here in which those forrner convictions are put upon the record, and proved in aggravation of the uffence for which the prisoner is charged. I may here mention, that the judges of the Supreme Court have repeatedly confeJTed on this subject ; to endeavour to ensure uniformity, they have oompared the convictions and sentences, and drawn up a table of punishments. Still, while the constitution, education, and habit of thought of judges vary, some will look on one species of crime as

·demanding more rigorous punishment than another may think sufficient.

.. •) dJy

9· Might not the enactments, with whi<·h the jl'dges are bound to agree, be a check in passing S!r:Redmond

sentence ?-Certainly; they crcnnot exceed Ole uutximum, but ih~tt I have explained before. The local c!:"~a, circumstances of particular disiricts may l'emlcr it. perfectly right tJmt u man in one would be adequately 2.0th Jan. rB7r.

punished with two years in gaol, thut in another ;c nmn should be com;idered not too severely punished if sentenced to five years on the roads.

I o. And if you reverse the judges you may have tho sa.me thing ?-In some districts, where horse­stealers arc occasionally found to make a raid, a hor~:~c may not be safe if turned out to grass ; and in others, he mrty be as sn,fe as in a livery-stable in Melbourne.

I I. Allowing for all these circumstance~, you see a marked variation in practice ?-I have explained that already. I can mention instances iu which the information filed against a man tried before me on circuit conta,ined counts for previous conviction. It was expected that the man would plead guilty, no doubt existing of the fact, the record being in court ; but there was no evidence to prove the identity of the prisoner. He looked rountl the court and he did not see the detective, who would have recognised him, and so he pleaded "Not guilty." The counts on the previous convictions not being sustained, no notice could be £aken of them. That would be provided against, by insuring whenever such a count was inserted that there shonld be evidence on the spot in support. Had they been proved, the sentence would have been very different.

I z. The Habitual Criminals Act has recently passed ?-I drew attention to that in court some time ago.

I 3· Imposing, if I may so speak, upon the Attorney-General, or requiring that a severer sentence should be passed in relation to the number of previous convictions ?-It is possible, in apportioning punish­ments, to adopt a plan recommended in Mr. Stephens' book on criminal law. Suppose a man tried on an information which contains counts on five previous convictions; he plealls guilty to the whole record ; the judge knows nothing of the facts connected with the previous convictions, no more than the particulars of the principal clmrge, which he learns by rmtding the depositions. An abstract of the previous convictions may be called for, the governor of the gaol may be directed to cause it to be served upon the prisoner, with a notice that if he choose he may subpmna any witnesses to speak to any of the circumstances connected with any of the previous convictions. \iVhen brought up for judgment he may offer any evidence in his power in mitigation of punishment, governed by which the additional punishment imposed by reason of those convictions might be graduated by obliging him to serve over again one-half, one-third, or any pmportiouate part of either of the periods of former imprisonment awarded on each sentence, ucconling to the nature of the previous offence, the severity of the punishment, the conduct of the prisoner in gaol. Thus some standard would he fixed ; at present there is none.

I4. The State had been feeding that man during that period, and had been also subject to the expense of the various convictions?-Yes.

I 5· Does not he require a punishment, to deter others from committing the same offence as well as himself?-Yes, and to lead al~o to his own reformation. That result has not been attained in such a case ; the prisoner shonld be compelled, therefore, to serve a definite portion of his former sentence over again. If it were found that a prisoner had been five times previously convicted, and that the sentences in tlw aggregate amounted to ten or fifteen years, he should be made to serve this incremental J'Unishment in an increasing ratio of severity, according to the number of former convictions, and the length of each term of imprisonment formerly awarded.

I 6. Do you recommend any indulgence in lieu of the remission of a portion of his sentence ?-That is another question upon which I desire to explain myself.

I 7· Might not good conduct jul'itify an amelioration of the condition of the prisoners ?-Certainly, and in many ways which would not affect the lluration of the period of his sentence.

I 8. Tlmt is, Your Honor i~ rMlly of opinion there should be no relation whatever between the sentence and the subsequent conduct ?-As regards the judges, decidedly.

I9. If a man is sentenced to three years, should he serve the last year the same as the first ?-No; I would propose to mitigate the severity of his punishment Ly altering the nature of it, not hy remitting any portion.

20. By lessening the punishment ?-No, not by lessening the punishment either. I would make the punishment the same as at present, with these exceptions : at first the prisoner should not be allowed the indulgence of labor. To a strong, stout, able laboring man, accustomed to work, a sentence of imprisonment without labor is more severe than the ordinary labor he would have to go through. The prisoner, therefore, during the first stage, should not have the indulgence of that which is, in fact, part of his ordinary occupa­tion. Compulsory idleness is a puuiHhment to a laboring man, as irksome as, if not more so, than forced labor. With permission I will continue the remarks already in part read.-[ Vide Appendix.l

2 I. I understand Your Honor, from reading that extract, to have recognised the utility of altering the character of punishment, but not to have recognised the expediency of remitting any portion of the period of the punishment; upon what grounds do you draw that distinction ?-On the groun<l of preserving the integrity of the judicial sentence pronounced in public. It appears to me judiciou,; to cause a man sentenced to imprisonment for a certain time to c;prml a proportion of that time without occupation. This period would vary aceording to eircmnstances. He would thus be able to reflect on the consequences of his guilt. During the suceeeding period he would suffer a lighter degree of punishment, being allowed to work, but without any indulgence. He would thus expiate his offence, and give an equivalent for his support imd supervision by good hard labor, umequited in any way. At the end of that time, if he behaved well, he might be allowed, for the remaining period, to earn wages at a monthly increasing ratio. Thus one, two, or three weeks or months, as the case may be, might be spent, not absolutely in solitary. but in separate con­finement, without regular labor. The prisoner would have a diminished ration, enough to keep up his bodily vigor, and might be occasionally employed in the ca~nal work of sweeping and cleaning, &c. In the next period he would have an improved ration, nnd Lc set to hard work. In the t.hird, small wages, a penny or twopenC'e a day migbt he allowed, provilled the amount of work allotted was done, with extra payment for extra work. In caoe of mishehnv.ior, instead of putting the prisoner in a solitary cell and lo~ing hi5labor, punish him by fine, deducted from his earnings, and make it a rule that he is not to be let out of gaol, even though his sentt·nce may have expired, unless he has to his credit, as wages earned, such sum of money in proportion to the period of his sentence as will suffice to keep him out of the way of temptation until he ean obtain employment. If I may be allowed I will explain this further. Suppose a prisoner in the third

. ~_{yo \. j \._

Sir nedmond narry,

tronUnued, :>.och Jan. 1871.

4

stage to be sentenced by the visiting justice to three weeks solitary confinement; during that period he might earn one or two shillings a week-that is, three or six shillings. Instead of carrying out this cumulative sentence as is done now, let the prisoner be fined three or six shillings, as the case may be. Con­sider this fine as equivalent to tho period of time it repre~ents, and canso the prisoner to work for that period (three weeks) in addition to the term originally awarded, so that he shall have at his command when discharged the sum fixed when he enters the gaol. There would be strong inducements to good behavior in the dread of forfeiting the period of rewarded labor which he had already served, and the knowledge that though his term of imprisonment was lengthened, it was not unproductive of wages. A confirmed bad character would see that misconduct not only prolonged his imprisonment, as it does at present, but deprived him of the opportunity of earning the amount of wages necessary for him to possess before being enlarged.

22. In all that there is a remission of some punishment, in consideration of good behavior ?-No direct remission of punishment.

23. A remission of some form of punishment, a changing ?-He does the same work as at present, and more.

24. All that depends upon his behavior ?-There is no alteration in the nature of work, or remission in the duration of the punishment.

2 5· But there is in the comparative irksomeness which be undergoes ?-He works for part of his time, making atonement for his offence to the State, which has the exclusive benefit of his labor ; during the remainder he works, getting, by way of encouragement to reform, a small remuneration for his labor, with the prospect before him of leaving gaol not absolutely destitute.

26. He gets a more favorable state of things dependent upon good behaviour ?-Yes. 27. The same principle which would warrant a recognition and practical admission of that mode

would also go to justify the remission of the period of his sentence, that is always dependent upon the fact that he really is a reformed character, of which the only best evidence you could have would be that he steadily, for a series of years, endeavoured to work out his redemption. To many constitutions, as we all know, and especially those accustomed to out-door pursuits, mere confinement within the four walls of a gaol is the most terrible punishment you can inflict upon a man ?-It is so.

28. Supposing a man was sentenced to eight years imprisonment, would there be any advantage in allowing him to do his work in six years ?-The advantage mentioned, if it be one, ought to be announced as part of the sentence; the advantage of the other plan is that a man \>ill have money instead ofrednct,ion of time.

29. Supposing the judge had the power of sentencing a man to say four years imprisonment with hard labor, with two years assignment of labor ?-That is a question which I have not considered.

30. The present regulations, which make the actual sentence one thing, whereas in fact the judge has announced another, are no longer tenable ?-I think that is not fair to the judge or the public, and all in consequence of mistaken sympathy for the person of the prisoner, without regard to the position to which he bas voluntarily brought himself. It weakens the moral force of the sentence, the law is not vindicated. It would be better in my opinion that the period of punishment should be divided into distinct broadly defined periods, one, as already observed, for him to consider his position; one of penal servitude, and the third reformatory work, with remuneration prospectively increasing. There is still another plan, that is to make the prisoner's work remunerative in the first instance to the State anJ in a manner more tangible to the prisoner himself, that is by giving him an interest in his labor from the day he entered the gaol; hope, instead of being shut, out would be in his view from the day he crossed its threshhold. Infractions of penal discipline, except in cases of violence, might be punished by a pecuniary mulct or reduction from the prisoner's wages, as already mentioned. It is possible also to do as is done at Berlin, to apply the assignment system in gaol. Thus, if the prisoner be a joiner or a cabinetmaker, it is a ridiculous misapplication of his labour, except as a punishment, to make him break stones, and at the same time it is absurd for the Government to enter into competition with the furniture dealer by employing him at their own risk at his trade. To enable such a prisoner to make such a piece of furniture as he is able to turn out the Government must buy a baulk of timber, a crate of glass, and a chest of tools; but if that man were assigned to a cabinetmaker he would be willing to pay to the Government £30 or£4o, or some other sum a year for his labor, the employer would provide the materials, and the prisoner would work them up in his cell. The master who pays for his labor will know how much he has to expect, and he will report the prisoner if idle or careless. He is not to be allowed to interfere with him, but if he finds the quantum of work he has reason to require is not done, he reports the prisoner to the keeper of the gaol, and the visiting justice hears the case as one of breach of prison discipline, and awards punishment accordingly. The employer of the prisoner pays to the Government a sum according to the estimated value of his labor, which depends upon his skill, &c.; that is paid to the Treasury, and the prisoner is stimulated to industry and good behavior by the wages he is allowed to earn. I took occasion to inform myself upon these matters at Berlin, and saw in the goal there a very excellent cabinetmaker at work; his labor was, so to speak, farmed out; the quantity of work he was required to perform was fixed; if he did not perform it he was liable to be punished, not for a breach of contract to his employer, but for a breach of prison discipline. He had to attend the chapel, and to comply with all the prison regulations, and do his allotted work.

3 I. Is Your Honor aware that that system in force in America has given rise to very great peculations, and led to gross acts of violation of prison discipline. Thus, it is said, the farmer, so to speak, exacts a great deal more from the prisoners than they ought to do; that they induce them to work over-time, this over­time being paid for by introducing contraband articles into the gaol, such as tobacco and various other things, and that the whole gaol generally becomes demoralised ?-Such a thing could not exist in Berlin, because there everything is under military discipline, and, as I was given to understand, no such communication by the employers with the prisoners could occur. All orders, &c., passed through the officers of the gaol.

32. Has this been in force for any time in Berlin ?-Yes. The prisons I went into were all upon this radiating system-the panopticon Hystem-adopted also in Amsterdam. In the gaol at Berlin all the tradesmen were, as I understood, worked in that way, and there was no opportunity for such an abuse as is said to prevail in America. In Dublin, at the .Mountjoy street prison, I saw certain classes of tradesmen worked together in difterent wards; they were allowed to converse, and they talked while employed at their trade over the subject of what they had been taught in the prison school ; they put questions to each other in history, grammar, arithmetic, and geography.

33· Had you an opportunity of seeing what steps were taken to prevent those things arising in Berlin ?-Yes; a man was expected to do so much work each day.

5

34· Respect being had to his physical power?-Yes ; according to the degree of his physical ability in the trade ; after his first few days probation in the gaol his proficiency in his particular branch of trade was ascertained.

35· This man's fair day's work having been ascertained, might not he, by overtaxing himself, do more than that, and thus assist the employer, for which assistance his employer would give him a reward, contrary to the regulations of the gaol ?-Everything in the shape of payment passed through the hands of the authorities of the gaol.

36. But underhand payment ?-That could not be. As I understood, communications between the employer and the prisoner were never allowed to take place, except in the presence of an officer of the gaol. The prisoners worked each in his cell, except where two or three hands were employed in some combined labor ; the tailors and bootmakers, and others were employed in separate cells.

37· Supposing he worked in that way, where would the money go to the extra work ?-The extra-work money was paid as the other to the Government, and the prisoner got a percentage. He is not allowed to work beyond his strength ; the employer cannot tamper with his constitution by inducing him to work beyond his physical power.

38. The discipline was nothing more than might be enforced by regulations ?-Yes. Everything human is liable to abuse ; still there is such regularity and strictness in the working of the system, as explained to me, that what is alluded to as occurring in America could not occur in Berlin, because there is not that direct interference with the prisoners; everything is done through the officers of the gaol.

39· Are there any large contracts for labor; would there be any limit ?-Practically there is no limit to the demand for such labor there ; of course, there is a limit in the supply. I saw in adjoining cells three first-class cabinetmakers and joiners at work.

40. And what was the number of prisoners in the gaol altogether ?-About Soo, as I believe, in 186z. 41. Was there any jealousy of artisans outside with that system ?-Not the least that I heard of.

A master shoemaker enquired at the gaol if he could get say three first-class shoemakers ; he was told he could have that or any smaller number. He would accordingly send so many pair of boot tops or bottoms, &c., on a given day, get them away within a given time, and pay for those men's work.

42. Does the farmer submit those articles and actually deliver them to the prisoners ?-No; as I was given to understand everything goes through the officers. The materials were delivered at the work­room in the gaol with the instructions, where they are distributed by the officers of the different wards.

43· The employers and the men do not come in contact ?-Not except to verify the representations that the men are of the ability stated, and to give specific instructions when necessary, in the presence of an officer.

44· Is any portion of this money paid to prisoners during their confinement ?-No. 45· How does it affect prisoners confined for life ?-According to our experience a man may be

sentenced to imprisonment for life two or three times over. There is usually some limit beyond which a man is not detained in gaol provided it be safe to set him at liberty.

46. Were there any cases brought under your notice of prisoners undergoing imprisonment for life ?-Yes.

47· Would those men in for life have any object in working for money ?-Yes, they would; they would be allowed to purchase necessaries and luxuries, tea or sugar, and perhaps occasionally some tobacco or snuff, or an extra shirt or pair of stockings.

48. Is it any very large substantial percentage they are allowed upon their labor ?-I believe not, but I do not recollect what. If I may be allowed to make a remark, I found, on enquiring into the dietary scale, that the quantity of meat given to prisoners in gaols in Europe is very small, usually in soup, or applied for the purpose of enriching vegetables. The kinds of vegetables used are numerous, and they are varied on different days and at different meals.

49· To revert to a previous question, is not it rather objectionable that the sentence a prisoner gets for one offence should depend upon the chance whether he is tried before one court or another ?-I do not know that that can be obviated. I have known a man sentenced by a judge of assize in England to three months imprisonment, who would in all probability have received a sentence of two years at the Court of Quarter Sessions.

His Honor withdrew. Adjourned to Tuesday next at Two o'clock.

TUESDAY, 2fTH JANUARY 1871.

Present: His Honor Sir WM. F. STAWELL, in the chair;

R. Youl, Esq., M.D., D. Blair, E@q., M.L.A., C. E. Strutt, Esq., P.M., Captain Mac Mahon, M.L.A.

E. P. S. Sturt, Esq., P.M., examined.

50. You have been police magistrate for a great many years ?-For twenty-one years. 5 r. The attention of the Commission has been directed to the discretion placed in judges and justices

in awarding sentences, and to the advisability of limiting that discretion, so as to ensure a greater uniformity in sentences. The Commission desire to have your opinion on the expediency of making any and what alteration in the law as it stands ?-I think it is impossible to avoid giving great discretionary power to magistrates as to the extent of punishment they should inflict. There may be a maximum and a minimum ; but I think there should be a considerable interval between them. There may be various circumstances which aggravate the offence. A man, for instance, may be well known to a magistrate as a hardened character. Then there is the premeditation of the offence, and a man's numerous previous convictions: all tend to cause punishment to be more severe than would be inflicted upon a man taken up say for a first offence. Frequently a man landing from on board ship after a long passage may get excited from drink and falls iu.to the company of associates who lead him into haunts that lead to crime. All these considerations

Sir Redmond Barry,

continued, ~oth Jan. 1871.

E. P. S. Sturt, Esq.,

2.4th Jan. 1871.

E. P. s. Sturt, would induce the magistrate dealing summarily 1Yith n case to award a lesser punishment. Therefore there co~:i;;,a, should be a wide margin always left to the magistrate. It is impos~ihle that punishments can be similar,

~th Jan. x8x7. even though the offences may appear to be similar. sz. It is said that the punishment awarded by tho courts of general sessions are more severe than

those inflicted at the circuits, or in the Supreme Court. Do you account for this by the knowledge that justices possess in each individual case ?-I can hardly venture upon an opinion on that. I think it most probably arises from evidence which may be supplied of previous offences, and the known character of the man.

53· Is there any practice pursued as to affording information to magistrates of a prisoner's character or previous convictions ?-Generally speaking there is. If, for instance, I myself nm aware that a man is an old offender, I always call upon the officer of police or constable who may be in court to state whether there is any evidence of previous convictions. I seldom like to act upon my own recollection in such cases.

54· Has the prisoner an opportunity of contradicting such evidence ?-Invariably. 55. Do the statutes awarding additional punishment for previous convictions extend to those

cases ?-Yes. 56. Would you be disposed to alter very much the limit at present vested in justices ?-I

would not. 57· w·ould you increase the power of justices and have a maximum fixed ?-I would. The

utmost punishment that can be inflicted for larceny under 40s. is three month's imprisonment, and a previous conviction, or a dozen previous convictions, would not affect the sentence. Again, the prisonm· may refuse the jurisdiction of a bench of magistrate~, and the magistrates have no power but to commit him for trial. I believe this has led to much unnecessary expense and inconvenience to the country. Habitual offenders exult in the "cheek" (as they call it) they con display in refusing to allow tho magistrates to deal with them. The consequence is that cases of the most unquestionable guilt have to be committed for trial, though the offence itself is but a petty larceny.

58. Then you think that, so far as petty larceny up to 40s. is concerned, the power of sentencing vested in the magistrates ought to be increased ? -Yes, and also in the case of repeated offences.

59· That would rather be an increase of the punishment, in consequence of previous convictions?­It would; but three months is the maximum now.

6o. Would that be a sufficient maximum for a first offence ?-Yes. 6 r. Would you give the power absolutely to magistrates, against tho will of the prisoner, to convict

him summarily if the article was under 40s. in value ?-Y cs. I may state that the magistrate has the power of dealing summarily with such cases when the offenders are juvenile.

6z. What is the maximum punishment ?-It is now twelve months for larcenies over 40s. 63. But under 40s., what should be the maximum ?-I think twelve months. A man appears before

the police court, charged with two or three offences of petty larceny ; he may have been repeatedly convicted; but you would not be disposed to sentence that man to twelve months imprisonment for each offence. But literally, the magistnttes have now no discretionary power at all.

64. Would you give a general discretion, or' make it graduated in proportion to the number of convictions ?-It might be left entirely to the discretion of the justice. I would not bind him.

65. With reference to juvenile offenders, subjecting them to ·incarceration is subjecting them to contamination ?-I have felt the greatest grief (I can use no other term) at sending to gaol the bright-faced youngsters lately brought up before the court, and yet who have been as completely mixed up in the same offence as those who have all the appearance of the criminal class. You are obliged to deal with them all the same, and I have myself sentenced them to six months imprisonment, when I believe that summary punishment, in the shape of corporal chastisements, would have had more effect, both upon the youths themselves, in checking their future career of crime, and in checking others also.

66. You would merely imprison the lad for the period necessary to inflict the punishment ?-Merely so. I would let him go out to boast of his sore posteriors, aud not allow him to be contaminated by confinement in gaol. I y;ould have him punished as a schoolboy would be for robbiug an orchard or the like,

67. Do you think the puuishment should be on the posterior, and not on the back ?-Exactly. 68. :\light that be supplemented beneficially by fining the parents ?-It would be difficult to draw

the line in such a case. A boy, for example, has only n widowed mother, with perhaps four or five children thrown upon her hands: you could not fine her.

69. Take the case of a father and mother who, simply because a boy may be difficult to manage, allow him to lead a criminal life ?-No doubt a great deal of the evil now commonly called "larrikinism" arises from the neglect of the parents.

70. Would you not punish parents by a fine who have the means to support their children, and yet absolutely neglect their duty as parents ?-It is a matter requiring very serious consideration. A boy is brought up, charged with a petty offence, who is one of a large £<tmily of poor people: to inflict a fine would only be punishing the other membet·s of the family.

7 I. Do you think the majority of these cases of robbery by youths arise from poverty or from vice ? -I think they arise from being under insufficient control. I have seen many lads brought up before me who, had they been under better influences, would never have dreamed of committing the offences for which they stood charged.

72. Have you never felt, when such boys have been brought before you, that you would like to have the power of punishing the parents for the evident neglect they had shown to their children ?-Unques­tionably I have.

73· Have you not often felt, and had proved to you, that the position of the child was entirely due to the neglect of the parents ?-Yes, frequently.

74· And the flUnishment you inflicted upon the child you would have inflicted on the father?-Yes. 75· Do y011 think there are circumstances under which it would be advisable to give magistrates

power to puni~h parents ?-I think it would be very desirable to render it compnlsory upon the parents to exercise a due care over the condnct of their children; but that might be dono under tho existing law. I am hardly disposed to recommend fines and penalties upon the parents, which would fall upon the family, us I have already said.

76. In the event of the fhther not finding security for the boy's good behavior, what is done ?-The father i3 summonod to show eause, and in default of his not flndiug the Buretie:; he would be sent to gaol.

7

77· Have you formed auy opinion as to the best means of dealing with juvenile ofl(mders ?-It appears to me, for example, that there i<houlcl be much greater facilities for getting out lads from the industrial schools for employment on bonrd coasting vessels and other ships. There are too many depart­mental difficulties thrown in tho way. I have heard captain;; of merchant ships express their willingness to take boys, but they would not go through the tr<mble consequent upon applying for them.

78. But necessarily some precaution must be adopted to prevent boys being sent to persons who ought not to be entrusted with them ?-No doubt, but I think the process should be simplified as far as possible, because the captain of a ship cannot afford much loss of time. Moreover, in considering the future of lads who might never have become criminals if it were not for their unfortunate position, in that they are utterly beyond any redeeming influences so long as they are loose upon the streets, every possible facility should be afforded to get them away from the scenes of their past associations.

79· Can you suggest any modo by which criminal assaults on women and children might he rendered less frequent ?-As the Jaw exists it i~ very Revere for offences of that nature, and I do not think there has been any reluctance on the part of magistrates in petty sessions to deal severely with such cases. The period of imprisonment to which a man proved to be guilty of an offence of that nature is sentenced varies from eighteen months to two years, with hard labor.

8o. ·would you inflict corporal punishment in those cases ?-I think not. I think iu mnny instances it arises from absolute madness-the man has lost self-control, and is in fact a monomaniac.

81. Can you assign any reason for the frequency of such offences, as compared with other crimes, in this country ?-I think the punishments awarded by courts of petty sessions are deficient in severity. You mny sentence a man to a long period of iml)risonment, but you cannot award him punishment adequate to or characteristic of the offence. Take, again, men who commit the offence before women and children of obscene exposure of their persons : if magistrates had the power of awarding such men during their punish­ment certain periods of solitary confinement on bread and water, that would probably be more effective. There is, also, the offence of habitual drunkenness, both in males and females. It has come under my observation frequently that an unfortunate woman, with four or five children, resorts to keeping a boarding­house or a small shop, and her husband is an habitual drunkard. It may happen that the poor woman during the confinement of her husband has accumulated a little property; and within a few weeks of the husband's discharge every article of the wife's savings is pawned and the children are left half naked ; and there is no law to protect the poor creature. It appears to me that the wife of an habitual drunkard should meet with the same protection as if she were deserted by her husband. It is, in fact, worse than desertion, for he is robbing her as well.

82. A protection order might be made for the wife in that case, as in the case of a wife who has been deserted by her husband ?-Exactly.

83. How would you deal with the husband himself ?-Let him get hi;; living elsewhere than living upon the earnings of his wife.

84. And there is the ease, is there not, of a man who has got a drunken wife ?-To a great extent that is the man's own fault. He has control over the wife which the wife has not over the husband. I think it a misfortune that neither in our recent Publican's Act nor the present one is there a provision, as in the former Act (13 Vic. No. 29), for prohibiting the sale of spirits to habitual drunkards ; because I am perfectly aware that, in certain neighborhoods, the publicans encourage the husbands to come and get rid of their wages on Saturday night. The man is being repeatedly brought up, and the magistrates can afford the wife no protection. I am often at a loss to know how to deal with such a man. To make him find sureties or to send him to gaol is taking him away from his family. One has no proper remedy to apply to such a case.

8 5· Have you, as a visiting justice, turned your attention to the management of prisoners in gaol, as to the best modo of applying their labor beneficially to themselves and to the State. At present there is a vast number of prisoners whose labor is, comparatively speaking, unprofitable, and which ought to be capable of being so applied ?-I can only draw a comparison between what I have seen of the gaols here and in England, when I visited Millbank, and Pentonville, and Portland, and many of the most prominent gaols, during my recent visit to England. I observed that a great number of prisoners were employed in their cells at looms, manufacturing various articles, which were sold to a large wholesale dealer in soft goods.

86. What were the articles made ?-Blankets, rugs, carpeting, and all sorts of woollen goods ; an nmazing quantity of mats, druggets, flannelings, shirtings, and so on.

87. Were those articles made by each prisoner in his own cell ?-Not in every instance. There might, perhaps, be sometimes two or three workmen in a cell. The doors were all open, and a warder walked up and down a long corridor, having control over forty to sixty of those cells. Perfect silence was preserved, and the prisoners all wore masks covering their faces. Conversation was strictly prohibited. Except the movement of the machinery, everything was perfectly silent.

88. Was there any objection to the disposal of those articles as interfering with free labor ?-Not the least.

89. How wore the articles disposed of ?-The soft goods firm purchases them at a certain percentage below the retail price ; not only articles manufactured in the penal establishments, but in the blind and other asylums.

90. Were the articles manufactured by prison labor sold by contract or by auction ?-By contract. The wholesale dealers would take as many at a certain price as could possibly be made.

91. ·who supplied the materials, the Government or the purchaser ?-I believe the Government, but I would not speak positively of that.

92. How were the proceeds disposed of; did you learn whether any part of them were applied to the prisoners themselves ?-Yes.

93· Did the prisoners receive any indulgence ?-They received a mitigation of punishment. 94· Did they receive any sum of money at the expiration of their sentences ?-I put that question

to the officer with whom I went round, and I believe it is the practice to give the prisoners a certain amount upon their leaving gaol.

95· How was it given ?-I believe it was given in one sum. 96. Direct from the gaol authorities or through the medium of any society ?-Direct from the gaol

authorities,

E. P. S. Sturt, Esq.,

contin'Uf'd, Z4th Jan. 1871.

E. P. S. Sturt, Esq.,

MnUnued, 24th Jan. 1871•

97. Would not that be likely to lead to very great evils ; a prisoner being suddenly discharged from gaol with a sum of money in his possession might be tempted to excess ?-It may bfl so; but a prisoner, if he has any good left in him, may have every desire to get away from his old associations, whom he dreads might drag him back inte the same career of crime. The money given him would frequently enable him to leave the country, but if doled out to him it would have very little effect. I do not think any prisoner ought to be discharged from gaol without having some means to remove him from the scene of his past career of crime and to start him in respectability, so far as outward appearance goes, in order that he should have a fair chance with others to get a living.

98. Were the prisoners whom you described approaching the expiration of their sentences, or were they prisoners in different stages of sentence ?-To the best of my recollection a prisoner would not be dis­charged on ticket-of-leave now iu England.

99· But those who were working, were their sentences approaching expiration ?-Yes, they had gone through the probationary stage in Mill bank prison. I remarked some prisoners who had been mixed up in a riot at Portland, and had been sent to Millbank where they underwent the close system of imprisonment. They were walking about with masks over their faces and with a kind of felt slippers on; and neither prisoners nor warders were allowed to speak a word. That was considered the severest punishment that those men could be subjected to.

Ioo. ·were the well-conducted prisoners allowed to speak on the subject of their work, or was there any distinction drawn in that respect ?·-I think there was no distinction.

Ioi. Was there a special foreman appointed to set the men's tasks ?-Yes. l02.. Did he observe whether the work was itself well executed ?-The purchasers took care of that.

They would return inferior articles, and that would be reported to the authorities. IOJ. \Vas there no person actually inspecting the work while in process of execution ?-No. I saw

an immense store of goods which had been passed under examination by the purchaser's men. I Of. At what gaol was that ?-Pentonville. I05· \Vas the nature of the occupation in the cells such as the prisoners could get their living at

when they came out of prison ?-Certainly. 106. Handloom-weaving is not a very flourishing trade now, with the competition of steam-power?­

No, but it gives men an acquaintance with that particular kind of business. I07. Was there any final stage, calculated to break off the sudden transition from confinement to

perfect liberty ; any intermediate stage between this severe discipline and liberty ?-I believe prisoners are sent from one gaol to another, where they undergo a different style of treatment; but at Millbank there is one uniform system of treatment of the severest kind.

Io8. At Pentonville and Portland too ?-Yes. I 09. Did you see any instances in which the system called the Maconochie or Crofton system had

been adopted ?-No. I Io. Did you see any prisoners engaged on public works ?-At Portland I saw them quarrying

stone, and work of that kind. I I I. \Vere those men selected in consequence of their sentences being about to expire ?-They were

all long-sentenced men, but they were not of the worst criminal class. 112.. Were they dressed in prison garb ?-Yes, all of them, and some in irons. I I 3· Were they very closely guarded ?-Not so closely guarded; but still it appeared that the

precautions taken were so great that although a large and very serious rising had been planned, it was completely frustrated, by information which the governor had received. Weymouth waa in a state of great alarm, as reports had spread that the whole of the prisoners in Portland had organised a system of mutiny, and the inhabitants might expect to have the town taken; but it was soon found the alarm was unnecessary, for, as soon as the attempt was made, the mutineers were thoroughly checkmated. Many of them were sent back to Millbank, where there is severer discipline.

I If. Then the works at Portlaml are considered, to a certain extent, a rela;:ation ?-Yes; and there is greater freedom. Prisoners are not within the walls of a gaol, but are working in sight of the sea and the shipping. Some men would infinitely sooner be at Portland than in a gaol.

1 I 5· Can you supply the Commission with any suggestions as to a mode of employing the female prisoners ?-I think that is about the most difficult point to speak to. I should be perfectly at a loss there. It certainly is most pitiable to see those unfortunate creatures who, when sent into gaol, many of them, are very little removed from the brute creation.

I I 6. \Vhen women are liberated from gaol is there any provision made to give them a start in life, so A.s to enable them to get an honest living ?-No, I think that is a great want in a large city such as Melbourne. Those unfortunate creatures, who have fallen to a state of degradation lower than that of brutes, after six or twelve months of restraint in gaol are discharged ; but there is no friendly person to direct them in some useful line of life, where they might at any rate avoid the associations that led to their imprisonment, so that, in fact, they have to go back to their former state of life. They come out with the priaon garb, or with the prison appearance, and they are hopeless, and must go back to their old haunts, to be brought up again in six weeks time. I know women who for the last twelve or fifteen years have passed ten months out of each twelve in gaol.

I 17. Do you think that that class of people are peculiar to Melbourne, or are they just the lower fringe of every society ?-It is an evil that exists wherever there is a large condensation of people. Many of those unfortunate creatures, I believe, are partly idiotic, lying out of nights during the winter in the scrub ; the poor things lose all mind at length.

I 18. How wonlcl you deal with the tramps, and such habitual vagrants ?-I do not well see how you can classify tl,tcm, but you might give to magistrates the discretion which I have before alluded to in relati011 to petty larcenies. I think, in the case of repeated offenders, their punishment should be of longer duration. I have repeatedly thought so when I have seen habitual loafers, who have been apprehended for vagrancy, larceny, drunkenness, or insulting behavior time after time, and who have their three months or six months, and perhaps twelve months, and they como out to repeat the same offences again. In those circumstances a bench of magistrates ought to have the power of giving two or three, or even four years imprisonment. There might then be a chance that the man will find, when he is discharged, he has lost his old associates, and has some hopes of doing something for himself.

9

I 19. Have you thought of what might be done with the wives and families of such men ?-I think if you do much in that direction you tend to encourage pauperism. I think you will find that the mother and other relations manage, unless they a!'e a very degraded class, to get a living. There are, I undel'stand, schools, both Protestant ancl Roman Catholic, for boys and girls, and there a1·e the reformatories ; and I think there is quite sufficient provision.

1 zo. 'l'he question is. whether we could not make the man work in gaol, and devote the proceeds of his labor to the support of his wife and family during his incarceration ?-I am afraid you would complicate things too much. It looks equitable and desirable, if it could be carried into pra~tice, but that system is, to a certain extent, carried out now. The State supports the industrial schools, and they are, I am quite convinced, most valuable institutions; but for them, crime would be cent. per cent. larger than what it is at present. I am convinced that by means of them a vast number ar!l made useful members of society, and become useful colonists, who would otherwise be thieves and vagrants.

1'ke witness withdre-w. Adjourned to F1·iday next, at two o'clock.

FRIDAY, 27TH JANUARY 1871.

Members present:

His Honor Sir ·w. F. STAWELL, in the Chair;

His Honor Judge Bindon1 David Blair, Esq., M.P. R. You!, Esq., M.D.,

His Honor Sir Redmond Barry, further examined.

1 z 1. We were considering the employment of prisoners at your last examination. It seems to be taken for granted that the duration of a prisoner's confinement may be divided into three stages-the first, a short one to bring him to a sense of his guilt; the second, a longer one to discipline him and teach him a trade or means of earning his bread ; and the third, a mode by which the violent transition from confine­ment to liberty can be broken. Has your attention been drawn to that third stage ?-Yes. When I visited the :Mountjoy street prison, in Dublin, I saw this going on.

I zz. I allude specially now to that stage where they are allowed to be at complete liberty ?-I never saw that part of the system in operation. It was carried on at some rural district, as I believe.

1 z 3· Was this second stage which you referred to preparatory to the third ?-Yes, I believe so ; and, if my recollection serve me, all prisoners were not alike submitted to this third partial emancipation; it was applied only to certain men, who, by their habits and disposition, were considered such as could be so trusted. I can very well conceive that a distinction would be necessary. The confirmed burglar or other criminal who had lived all his life in town, and a peasant brought up free from any such associates as the other must have habitually consorted with, as it strikes we, require different treatment.

124. Did you examine or inspect any of the prisons in England ?-None. 1 z 5. Do you happen to know whether, in Berlin, the prisoners were at once emancipated from gaol,

or was there any inLermediate stage, such as is adopted by Bir Walter Crofton ?-I cannot say decidedly, but do not think there was any such system. My belief is, that the prisoners served out the term of punishment without any abbreviation. Both in Prus:;ia and in :France, where I made enquiry, I found there was no abatement of the period of penal servitude.

126. Merely indulgences given them ?-Those were more common in Germany, and in Bavaria especially, than in France.

127. Did you happen to hear whether in any of those places, either Bavaria, Germany, or France, the expenses of the prison were covered by the labor of the prisoners ?-No. But I am very much disposed to believe that the money paid for the use of the labor of the men in the gaol in Berlin, particu­larly of artificers, vet·y considerably exceeded the amount of their cost.

128. In Switzerland the course pursued appears to be the same as in Berlin, but there the prisoners are employed on public works, and every hour of their labor is estimated, and they receive credit for the value of the work performed, and they wove about from place to place so as to be in close proximity to their work; but in none, so far as I could discover, has that system known as Sir ·walter Crofton's system been adopted, and that is one of the points to which the attention of the Commission has been directed ?­I have no personal experience of the working of that system.

129. Were those prisoners you describe as having seen in Dublin dressed in the ordinary prison garb ?-Yes.

130. Was this school you have described held in daylight ?-In daylight. 1 3 I. Did you observe the way in which the female prisoners were treated and dealt with, how they

were employed, and what steps were taken for their reformation ?-I believe it was on the same system, some were washing, some employed in sewing, I think waking garments of different kinds, I did not observe anything particular about them.

132. I observe Sir VValter Crofton's system is carried out by the assistance of a board. Do you know anything about that ?-I do not recollect that; I was not brought into contact with any members of the board. I was informed that this gaol at .!\lountjoy street had been foe some time au experimental gaol.

13 3· And it has been eminently successful ?-It has been so considered. 134. From your own experience do you think that system could be adopted in this country; from

your own experience judicially and your long re~idence .in the country, do you think that syste1n, known as the Crofton system, could be carried out here, considering the facilities for obtaining wines and spirits and the class of offences that would have to be dealt with ?-I should be extremely doubtful of it in case of the removal from prison discipline of some of the prisoners with whom we have to deal in this country. The safest plan is to incorporate the man as a member of the establishment of his employer, according to our old New South vVales assignment system.

I 3 5· There seems to be l'lo doubt that succeeded in that colony better than any other, but there is such an objection to it on the part of the population ?-Giving the men tickets-of-leave is very close to it,

P~NAL, b

E. P. S. Start, Esq.,

continued, '4th Jan. I87I·

Sir Red¥Jond Barry,

~7th Jan. 1871.

~j,, 1~edmond 1~:\TI',r,

contiiwed, 1.7H1 Jan. 1871.

10

and allowing a man to clJOose his master is very near it too, but that is objectionable. I think a man should be compelled to serve one master chosen for him and not selected by him, care being taken that the master does not abuse the privilege of his right to insist upon his labor or do him any injustice. I think the ticket­of-leave system is a bad one. An idle or ill-tlisoosed unrefot•med man has no inclination to work, makes no exertion to obtain employment, and prefers to tr;tst to his old a~sociates for assistance, to beg or relapse into crime with the hope of impunity. 'l'his optional idleness should not be allowed.

I 36. The great difiiculty in the assignment :;ystem is the obnoxiousness to which the master of the employed is exposed so far as the other servants are concerned, the employing of assigned servants. An employer of labor would be very likely content with a well-behaved man who understood his work and had every inducement to perform it well, but the free laborer would unquestionably be opposed to it ; that would be the difficulty felt ?-That is the difficulty; the circumstances of this country are very much altered within the last twenty-five years, and it might be more difficult to apply the assignment system now than it was originally; but if the other plan of partial enlargement before the expiration of the sentence be adopted it will entail a veey large outlay; cottages must be built at places where the prisonees are to be engaged in some kind of rural labor; penal supervision and also superintendence, and instruction of an expensive kind must be provided; there must be an outlay for tools, horses, cat.tle, machinery, seeds, &c., &c. It is not to be expeeted that the Government of this country could commence experimental farming as a mode of reforming such a class of men. .

I 3 7. Some other work, such as the formation of a canal, the removing of a bar, the construction of a harbour or sea-wall ?-The latter is the kind of work upon which the prisoners at Portland in England are engaged. Such work might be carried out at Portland or Belfast or elsewhere in Victoria.

q8. And at the GippsLand lakes, and various works of that kind. The obvious difficulty is the facility of escape and the facility of obtaining wines and Hpirits. A prisoner may be comparatively reformed and have corrected many of his evil habits, and become exposed to the temptation of drink, and his reso­lutions be at once broken through ?-If rightly informed, I believe the prisoners under the system alluded to were engaged in Ireland in reclaiming waste lands, trenching and manuring with limestone gravel, and making the land ready for cultivation.

I 39· Then your own opinion is rather in favor of the assignment system than any experiment of working without the usual guards that are maintained at very great expense ?-Y cs, if there is to be any emancipation at all before the completion of the period of sentence. I should prefer assignment to that, provided the social condition of the country would now admit of it. I am not sufficiently acquainted with the circumstances to give a decided opinion on that branch of the subject, but I own I should prefer that the pri•oners should be detained in gaol. If partial emancipation be allowed, well-behaved prisoners might be attached to the geodetic and railway surveys, to the telegraph extension, and to other similar works carried on in the field. But my opinion is that the general body of prisoners can be supervised and maintained in gaol more economically, that discipline can be better kept up and reformation better ensured there, than by an expensive and uncertain mode of distributing them, and that if their work be paid for and a portion be set apart for them as alluded to on a former occasion it would be bettet· for them.

140. The attention of the Commission has been directed to the present punishments as prescribed for certain offences, more especially against women and children, do you think any alteration is necessary in relation to them ; it has been suggested the infliction of corporal chastisement should be added ?-I have a vel'y ?rreat objection personally to the lash, and the infliction of any kind of physical pain; but it has had such a deterrent effect in ~orne especial instances that I am inclined to withdraw my opposition to it, and to extend its application to other specific cases. Violence to women and children by men might be so punished. I believe the class of men guilty of those offences would be more affected by l;hat than by any other ipecies of punishment. As to its having a tendency to the degradation of the criminal, they have already degraded themselves by their conduct, and disgraced if not degraded permanently the objects of their crime. No com­miseration whatever shonld be entertained for them, and they should suffer in an exemplary manner. I would be much more disposed to visit a crime of this unmanly character on defenceless women and children with such punishment than garrotting, to which it has been applied.

[{I. With respect to the general question of personal chastisement, we may take the case of a man who commits an offence requiring a eertain degree of courage, the question is how to produce a beneficial effect upon those who have forgotten and degraded themselves ?-The mistake is in attributing to those men a refinement of feeling they do not possess; they are of base and cowardly instincts, and do not deserve the consideration due to the criminal of brave, perh3ps generous character, who may have given way to corrupting influences or the impulse of sudden passion.

142. Would that be extended to all unnatural offences ?-Unquestionably, to unnatural offences especially. I believe people who commit those offences would shrink from corporal punishment in a degree that would make it most efficacious.

143. There is a class of prisoners, particularly in this country, perhaps not peculiar to it especially, but who exist here in numbers who commit offences, remain in gaol for a certain time and leave it, and return again, and practically the State suppot·ts them. Those offences are apparently met by the recent enactment called the Habitual Criminals Act, could such an enactment be produced here with advantage?­Unquestionably.

144· Those persons must be in prison for a period of not less than four or five years ; that would produce n very great difficulty in our present criminal law. The intermediate stage, so to describe it, or between one year and four years, or whatever the minimum is, is completely stepped over, and no prisoners subject to penal servitude can receive a sentence for less, I think, than four or five years. That seems apparently very severe, but of course it is only to be administered in cases where the prisoners had an opportunity of reform and have not availed themselves of it ?-The habitual criminal must have had recorded against him more than one previous conviction;

If5· But it is startling. .For instance, the elass known as vagrants and prisoners convicted of small larcenies to be subjected to four or five years seems a long time of imprisonment ?-That supplies an. argument against controlling the discretion of the judges in apportioning sentences.

If6. The same person steals some trifling article and is subject to two or three months, perhaps more, is discharged, commits a similar offence within a week or a month, and this is repeated and continued for. years and years ?-For my part I should have no compunction in awarding to such men four years imprison­ment. If a man will not live honestly he must suffer for it. Were certain criminals sentenced to serve

over again one-half the periods of imprisonment would be by far exceeded.

11

awarded by previous convictions, the term of four years Sir Redmond Barry"

<onlinuecl. 147. 'Would yon make it a cbuse in the offence-the change of name ?-No.

his name if he likes. A man may change :&7thJan •• •S7•·

I48. If he changes it for the purpose of evading identity ?-If it be done wilfully and with a criminal intent, that is another thing ; it is a species of forgery, or assuming an identity under false pretences ; an alias generally entails upon the person who assumes it a greater amount of punishment.

149 Suppose that was made one of the offences, do you think it would be advisable to put a clause of that kind in ?-It is quite possible tl1c social inconveniences attending such acts as those might inllJJce the Legislature to make it an offence, probably an ingredient in adding to the amount of punishment, but I do not consider it desirable to make it an indictable misdemeanor. If such habitual criminals were found to have used aliases in order to impose upon the public or evade detection, it might induce the Legislnture to direct that the punishment inflicted upon them should be greater.

I so. As to the class of criminals confined in the gaol at Berlin, were they selected, do you know?­I cannot positively say, but I think not. The previous history of each man, his name, description, crime, and sentence was written up over the door of his cell; but I do not recollect having heard whether any classi­fication, as skilled prisoners in one gaol, unskilled in another, was adopted.

1 51. Did they teach them a tmde before they were farmed out ?-I am not aware of that. I 52. Your Honor js aware that the great majority of criminals are men without a trade ?-Yes. J 53· Therefore there would be a difficulty in farming out unskilled labor ?-I alluded only to those

prisoners who had a trade, and more particularly I alluded to those who had a trade of a valuable character. J 54· But that wonld be a very small portion of the bulk of the prisoners ?-Yes ; for in general the

more advanced a man is in skill the better is his education and his behaviour. I 55· How would they get employment for that unskilled labor ?-There wore, if I remember correctly.

some large iron works in or close to the gaol where common unskilled prisoners were employed. It appears to me to be quite possible to arrange so as to have the useful handicraftsmen imprisoned in the same gaol. Those of the trades of a higher class could be imprisoned in the metropolitan gaol, where that description of labor could be employed to the best advantage. It would be a waste of labor power to detain at Ararat or at Beech worth prisoners skilled in such trades. It is completely immaterial in what gaol a man tried in the Supreme Court, which has jurisdiction throughout Victoria, serves his imprisonment, as he can by the judges be imprisoned in :my gaol therein. It is different when tried before courts with local jurisdiction. All tlmt would have to be secured would be that in justice to the man he should be sent free of expense, when emancipated from gaol, to the part of the country he came from. It would be cruel to send a man from Portland to Beechworth, and leave him to find his way back to J>(>rtlaud. Still it might be found advisable to have concentrated at Pentridge, from all country gaols, all prisoners competent to make the clothing and other necessarit>s required for the prisoners all over the country. It might be advantageou~ to concentrate in Melbourne those handicraftsmen whose labor would be nvailable to the various tradesmen here. One of the objections to the use of prison labor might be got over thus, the sale of articles made in a prison ;.hmtld not be disposed of to the public at the prison. If, for instance, a piece of furniture were made in the .Melbourne gaol, it should be sent to a sale-room in which were eeveral other pieces of the same kind. Tho public would not be aware where it had been made, whether in the town or suburbs or in the gaol.

I 56. Among the prisoners here a very small pt"rcentage are tradesmen, and the majority of those havel1een taught their trade in the prison ?-As I have already said, the good tradesmen are better behaved generally than others.

I 57· You further alluded to a circumstance of the skilled workmen who received a higher price and the unskilled workmen who received a lower price?-Yes.

I 58. In that way perS(lTIS requiring comparatively rough work to be executed might take a less skilled workman at a lower price ?-Yes.

I 59· And so in fact a prisoner would learn the art of manufacture in a gaol ?-Yes ; such a trades­man as a mason can only be employed profitably in some Government work.

I 6o. The syRtcm to be profitable or to enable the Government to derive benefit from it must he in operation a series of years ?-Of course, if a man be sentenced to gaol for seven years he has got as good an opportunity of learning a 1rade there as anywhere else. He would go into grwllln ignorant criminal and he might come out as an educated and skilled workman with the means of earning his living, and with money in his pocket to enable him to live honcFtly until he could get employment.

161. Suppo~ing there were sufficient profitable Govemment work for a prisoner, would you not think: that was the least objectionable mode ?-The chief objection to that is the propensity there is to give· fictitious value to the work done, whereas the other is tangible and the money earned is paid into the Treasury ..

I6z. Articles might be valued just the same at contract price ?-If you can sell them at that price. I63. Take boots and shoes for the Lunatic Asylum. A ;·ote is taken for that amount and the thing is

l!ent to the Government to say what they can take the contract at, and if it is taken at a IWice less than that outside it is a gain, and the money is passed fi·om one vote to the other, ~o that practically it is paid at the price outside ?-There is this difficulty in that plan, the Government has to become a tradesman to a certain extent and purchase the material, on this there is always wear aud tear nnd loss, but a tradesman has to Lear that and would suffer smaller loss than the Government would ; he has various ways of applying even the scraps which otherwise might be and in a Government workshop inevitably would he thrown away. In the instance of boot and shoes, if you get a contractor to send to Pf'ntridge for I,ooo pairs of boots he would have the leather all cut in his own shop and send the materials to be worked up, he would therefore incur the ri,.k of speculating in the price of the materials and the loss upon tl<em; otherwise the Governmeut would have to buy so many hides, so many gros~ of bristles, and so on.

I64. That is one of the great drawbacks in making the system renumerative; the raw material has tc be purchased by contract, and then a large quantity is pnrchased, and more, perhaps a great deal, than is necessary which is not used to advantage ?-A man who cuts a skin the l'lize of this table which he has no interest in cuts it as he pleases, and would llot hesitate to make a sacrifice of a large portion of it, whereas if the contractor who bought it and had to pay for it has it made up in his shop there would be a greater economy practised by him. Moreover, there are endless varieties in the shape of waste. Prisoners would not make use of expedients, tt very much larger supply of tools would be 1~uired than in a private establish­ment; from over cautiou and want of cootidence in himself the priS(lncr n1ight not be able to use the

Sir Redmond Barry,

continued, •7th Jan. 187r;

12

particular description of tool served out to him, he would require to have tools of different sizes and shapes; the moment the Government get into the practice of supplying those tools the expense becomes endless.

I65. In the case of farming the laborers, are the tools supplied by the Government ?-I think by the employer, and the man is made responsible to the Government, not to the employer for the use of them. For instance, if a prisoner break a plane or chisel he is reported, and if he does not satisfactorily explain himself he is punished for it as for a breach of penal discipline. An indulgent, that is an over indulgent or supine overseer may say, "This man's work is found fault with, and it is not to be wondered at that his work is not good, he has not got tools suitable for him, he is not a skilled workman." These are matters of detail, though detail is not to be despised, as success depends upon details. My opinion is that the less the Government has to do with the labor except in turning it to good account the better. Labor is capital, the Government has at its command labor of a certain kind, of different qualities and degrees, and the question of how to apply that profitably is the same as if a private individual were to have to determine how to apply to the best advantage so many horse-power of steam.

I 66. And it is precisely one of those questions in which the consideration of the details is the settlement of the question ?-Yes.

I67. Has your attention been directed to the Industrial School ?-I was only twice at Sunbury. The short visits I paid there did not enable me to form any direct conclusion; but there were some things I mentioned to the visiting justices which struck me, and which I suppose are remedied by this time.

I68. Are there any other points yon could offer any suggestions to the Commission upon ?-I think not, except on the subject of Industrial Schools. I am strongly of opinion the system adopted in England or in Franee is better than that adopted here, that is, the having cottages in which tl1e children are grouped instead of having them assembled in large barracks. I consider it extremely dangerous to herd together 700 or 8oo. At Red Hill, J\Iettray, and other places, a man and his wife with one or two children are placed in a cottage to which is attached a small garden. These people are selected not only for their proficiency in some trade, but for the qualities which render them eligible for bringing up a family, sueh as having a cheerrul affectionate disposition, being of domestic habits and of good temper. To each couple is entrusted generally from seven or eight to twelve boys. These children call the old couple papa and marna, and they are treated as if all were members of the same family. They are brougl1t up with the discipline of other establishments; they are obliged to attend divine service together and drill together, but on other occasions have all the comforts and attractions of a domestic circle. They do not feel that great iRolation and deprivation of home associations which is inevitable in large establ ishrnents. The present system appears to me to have this most baneful effect, 6oo or 700 boys are brouf!ht together in one place, and have no knowledge of any of the affections of kindred or relationship. They are under the drill sergeant or superintendent, and instead of being encouraged as by a parent to behave properly, they are corrected when they from ignorance perhaps break through some artificial rule of discipline. The other system is totally different ; it is one of an affectionate parent superintending the development of the ideas of the child.

I69. Yon are aware that in England they farm out the children ?-Yes, I saw recently in a news­paper an ad vertisernent by gnnr<linns of the poor calling for tenders for the maintenance of children at farm houses-that was for nurture only-such a plan which may work well if a good selection of nurses be made.

I 70. But in England they farm them out for their education ?-Uuless there be some control over the persons having them for their education, such as by constant visiting at uncertain times, they could not be superintended satisfactorily.

His Honor withdrew. AdJourned to Tuesday next, at Two o'clock.

TUESDAY, 31st JANUARY 1871.

Members present:

His Honor Sir W. F.

R. Youl, Esq., M.D., W. Templeton, Esq., P.M.,

STAWELL, in the Chair;

Capt. Mac Mahon, M.P., D. Blair, Esq., M.P.

His Honor Judge Cope examined.

Honor Judge I 7 I. You have been Judge of the County Court and Chairman of General Sessions for several years? Cope, y

at Jan. 1871. - es. I 72. There is a point which seems to have attracted public attention, and that is the apparent diffe-

rence between sentences pal'sed by different judges, and different courts for the same offence. Would you think it wise to limit the discretion of courts by a Legislative enactment, fixing the minimum and maximum in a way not done at present ?-I think the difference in sentences is not wholly between the General Sessions and the Supreme Court, because in the same court there will be differences. I am not sure that I made the suggestion to the Crown Law Officers, but I drew up a scheme by which the judges were to meet and draw up a scale, clas:;ifying offences into three grades, namely :-First, offences·; secondly, aggravated cases, including second and third offences, or any other classification; thirdly, offences committed under extenuating circumstances, by children of tender years, or neglected by the parents, and the like. So that every judge having this scale before him (but not being confined to it), his sentences would be more uniform than they are now. For my own guidance, I drew up a rough paper dividing offences into those three classes. At one time I had a notion that severe sentences would repress crime more effectually than lighter ones. I have since altered my opinion very much, and I now think comparatively short sentences would be better. Instead of fifteen years, I would not now give more than two or three years, except in cases of violence or other aggravation. .

I 73· Your view is that a scale or arrangement of that kind would sufficiently meet the objection, such as it is?-Yes; and the plan would not require any special legislation. Judges would keep within certain limits, and each judge would be exercising the same extent of discretion as another judge.

174. What difference would there be between such a scheme and a Legislative Act fixing the limits ?-None, excepting that in the one case we should do without the assistance of the Legislature. As

13

J&e ./ far as I am concerned, I would prefer the Legislature taking away the discretion, but I do not see how the His Honor Judge

Cope, Legislature ran look into every particcllar case as a judge can. continued,

I 7 5. Do yon think that short sentences do not semi criminals out comparatively unreformed, having Jist Jan. I87r.

learned nothing whatsoever in gaol, but on the contrary, perhaps acquired a good deal that may be injurious?-You have then ll:iven him a taste of gaol, and if he received a second sentence he would come under the ''aggravated" class, the lighter sentences being for first offPnces. Even then, os to longer sentences, I vwnld rather make the prison discipline more severe thnn increase the length of the sentence. "VVhy a prisoner should not work in gaol as well as outside I could never see. If I could make a prisoner do remunerative work in gaol I would certainly make him do it; and if his labor could not be made remunerative I would make him live according to his work. I mean that according as he worked, so would I pay him in the shape of food. At present all prisoners are treated alike, and the rations are by no means contemptible. A prisoner is saved cooking ; he has a better cell than l1e would have out-of-doors, and if he does not like the look of a potatoe he can have another. Now, I would feed him on tlw smallest possible rations as long as he did only the smallest possible work. I have understood from the governor of the gaol that the Chinese do not care much about being in gaol, it is not any punishment to them, the only punishment is the short rations; HO t,hat I do not give Chinese prisoners sentences with hard labor, but simply irnprisonmPnt, which means short rations.

q6. Still the State gets no work out of them ?-You would get as much work out of thorn as you do now. They would not exactly stnrYe, but it would make it very uncomfortable for them. They would only be pinched in the smnc way as they would Le out of gaol.

I 7 i. As to offences agninst women and ehil dren, do yon think the punishments for these are sufficient at present, or would you add corporal pnni:;hrnent ?-Yes, certainly; and for ::til offimces with violence I think corporal punishment ought t,o be added.

I ;8. For adults as well as boys ?-For adults as well as boys. I think, as to boys, the p1·incipal punishment ought to be corporal. They learn more of harm in gaol than the gaol dis<·ipline docs them good.

I 79· 'Vould you confine them also, or imprison them only so long as is necessary to inflict eorporal punishment, and then let them go ?-I think the longer boys are kept in gaol the \Verse they become. A very short imprisonment am! a tolerably severe castigation would be best.

I8o. The boy soundly flogged on the bench and allowed to go out with his skin sore ?-Yes. I8I. There is no advantage in keeping him in gaol ?-None at all. I think if you let him go and

show his sore skin his companious would be strongly impressed. I 82. Bas your attention been turned to the industrial sehools o,s penitentiaries ?-~o. I luwe merely

sent one or two boys there, bnt I have never visited the institutions. I83. Have you considered the subject in any way that would assist the Commission ?-Only that,

on two occasions, I ha\·e thought it advisable to send the boys there in preference to sending them to prison on account of their youth.

I 84. There is a ebss of criminals who come frequently before judges, men who seem to consider crime as a trade; they are imprisoned for a few months or years, and then go back to gaol convicted of exactly the same offence. How should such men be dealt with ?-Only by making the prison as uncomfort::tble as possible. So long as the prisons, compared with the habitations such men usually occupy, are comfort itself, they will not deter that dass of offenders. They are kept from beer ::tnd tobacco it is true, and there is no doubt a little restraint; but it is only by short rations and hard work th::tt you can effect any good.

I 8 5· But it is exceedingly difficult to graduate work so as to ::tpply it to men of different physical strength and varying occupations ?-Yes. I have heard the governors of the gaols say that this class of prisoners, as a rule, arc broken down and not fit for any particular work.

186. You woulu only deprive a prisoner of food in order to cornple him to work ?-Yes, ::tnd I would tell him if he worked a little more he would be better fed.

I 87. But a healthy stalwart man would do work enough to earn double rations ?-You must leave it to a certain extent to the gaoler. vVhat would be hard work to me would be nothing at all to a "navvy."

I 88. Do you think there would be any advantage in imposing pecuniary penalties, in the first inst::tnce, in the c::tsc of larceny or petty offences of that class ?-The offenders gt1nerally have nothing to pay fines with.

1 89. Do you think it would be advisable, in the case of neglected criminal boys, to fine the parents ?­I should like to fine the parents somehow.

I9o. But what in that case; how are you to act with a boy whose father tries to reclaim him and the boy will not be reclaimed ?-Send him to a reformatory.

I9I. But there are numbers of cases in which the parents place their boys in the way of temptation or neglect them so much that they must fall into it ?-It comes back to the question of giving the boy a flogging and letting him go.

I 92. You wished to say something more upon the. employment of prisoners ?-1 think that in the vicinity of every gaol there should be some public work to which the men could go when they come out

! of gaol. 193· At a reduced rate of wages?-Yes, merely for rations and some small sum, so that a man could

ultirn::ttely get back to honest work again. 194. 1Vould you give a man a small sum, supposing he wanted to go to a distant part of the country

to get work ?-He might have some small sum given him to get on for a do,y or two. 195· According to the existing law, in a case of a trifling offence-say a larceny under 4os.-it is

optional to the accused to receive sentence from a justice or to be committed for trial; would yon take away this privilege?-Yes, and whether the accused liked it or not. In connection with that, I think the justices should exercise di~cretion in not sending cases to a jury where there is every probability of prisoners being acquitted.

I96. Would you, fm· trifling offences, extend the jurisdiction beyond 4os., or extend the pnnishrnent?­I do not see that in every case the amount stolen regulates the crime.

I97· In such cases would you deprive the accused of his option, and leave it discretion::try with the justice to commit for trial or not, as he thought proper ?-Yes.

I 98. And also extend his power of ptmishing ?-Yes. 199· And for second offences, would there be any objection in your opinion to the magistrates having

power to inflict a heavier punishment, or should second offences be dealt with by the higher courts only ?-

14

His Honor Judge \Vhen vou speak of marristrates simply it means all magistrates, stipendiarv and otherwise. I do not know Cope _ .; o ' ,.__, .;

cm:umt'ea, that I would ~rrant the power fm· that. reason. JW .Jon. ' 87" 200. "Vould there be any objection to giving power ·to two magistrates, one of them being a

stipendiary ?-I think that might be done, both agreeing. 201. Do you think there is any disadvantage iu allowing a prisoner to give evidence in his own

case ?-No, but the cont.rary. I do not see why the prisoner should not be examined. 202. And if examined he must be cross-examined ?-Yes. 203. Would you allow the jury to draw their inferences from his declining to answer?-Yes. 204. Would you examine him upon oath ?-That is immaterial. A man who had committed a felony

would not be very backward in committing a perjury. 205. Then you would make it compulsory upon the man that he must answer or decline ?-Of course

you cannot make a man answer; but if a man does not answer in a certain way you infer that his answer would be unfavorable.

206. A~ to the Habitual Criminals Act, you are aware of an Act passed in England fixing the minimum in all cases of penal servitude to four years ?-Yes.

207. That Act was evidently framed on the principle tl1at a certain amount of time is essential to teach the prisoner a trade and inflict a punishment to deter him from committing a like offence again, Might an Act of that kind be adopted in tllis country with advantage ?-I am only aware of the Act, I know nothing about its working.

208. Are you aware that when persons have been three or four timeR convicted of felony, and are found loafing about, with skeleton keys in their possession, that justices, by straining the Vagrant Act, give them two year's imprisonment ?-Yes.

209. Would it not be better to have an Habitual Criminals Act ?-Anything is better than straining an Act to an intent that it is not intended for.

210. Are there any other points that strike you to give evidence to the Commission upon ?-I think not.

His Honor withdrew.

Frederick Call, Esq., P.M., examined.

rredk, Call, Esq., 2 I I. On the question of sentences, we wish to hear your opinion whether you think the piscretion at 1

"1 J.m. rs7r. present vested in justices and judges genera H) should be limited so as necessarily to ensure a certain

uniformity of sentences. For the same crime of larceny say, a man may be tried before the General Sessions and sentenced for two years, and anothr>r tried before the Supreme Court for the same crime be sentenced to only two months. Ought that diseretion to be allowed to exist to the pr·esent extent would be desirable to have, as f~r as possible, uniformity of sentence; but I do not think it should be restricted in that way, The hr>st decision would he arrived at by a judge who heard the particular ml!rits of the case, and who would be able to decide wheth•·r there were aggravating or extenuating circumstances in the ease.

2 I 2. It is alleged that the public interest is to a curtain extent disregarded where extenuating circumstances are considered, unless the reasons be known to the pnblic, and thus the administration of justiee is brought in some measme into disrepute ?-As a whole, I think the public in general hnve every confidence in the justices who administer the decisions. I, myself, have frequently read cases of judicial sentences which I have found it hard to understand, but I am satisfied there must have been circumstances to account for the sentences pronounced.

213. That may be the impression amongst the educated classes, but how would it be with the uneilucated and the prisoners themselves ?-I should not myself regard the opinions of prisoners as to what they considered right in their own cases. I never knew any prisoner to admit (or, if he did, he was a very great exception to the rule) that he was ever honestly convieted at all.

2 I 4· Supposing prisoners believe that different judges give different sentences for certain offences, do you not think that would be an injurious thing ?-Unquestionably. If it were possible for a prif'oner to choose his own judge, it would be very injurious; but I do not know that there is sueh a system in existPnce.

215. Suppose two prisoners tried on differt'nt circuits for horse-stealing, and that one comes to the prison for eighteen months and the other for five years ?-I havP, in my own experience, known a man to be in gaol for two or three years, for horse-stealing, and :mother then comes in for a like offence, and receives a sentence from which he would be released before the first man.

216. For a similar offence ?-As far as the outsiders knew. 217. Supposing a cnse where the offfmces are exactly similar, say an ordinary horse-stealing case,

and the one man gets eighteen months and the other gets five years : would it not be better that the discretion of the judges should be to a certain extent limited, so that the sentenees for the same offences should more nearly approximate ?-It is no doubt desirable that the 8entences should approximate, but I do not think it is desirable to do it in that way. It is known that there are periods when there is what may be called a peculiar turn of crime in the country. At one time there will be a great inclination towards horse­stealing, at another a great inclination for suicide, und othl!rs murJers. At such periodical times, I think punishments ought to increase in severity. In the early gold-digging times, the ordinary sentence for horse-stealing, because of the frequency of it, was seven years imprisonment ; afterwards, when the offence was less rife, the sentences were moderated, and now they are not more than two or three years.

2 I 8. Should not they be diminished in all the circuits in just the same proportion ?-It would be well if all judges had minds of the same tendency; but you cannot have a criminal law like a tariff' scaleJ to go U]J aud down. There would be many cases in which the exact punishment fixed would not meet the merits of the case. I am inclined to think that, for offences like manslaughter, to fix a maximum and minimum would be impossible.

2 I 9· That is an exceptional instance. llut take just the ordinary cases of crime : would it not be possible to have an average sentence for a peculiar crime, and the juilge to have power to increase or diminish it for re1tsons stated at the trial ?-Do you mean the sentence to be found by the jury?

220. Yes ?-I do not think it is at all desirable. It is quite right to have an increase of sentence for a second or third offence, but it would alter our whole system of jurisprudence if that proposition were carried into effect.

15

zz I. Supposing five years were fixed as the maximum and one year as the minimum, and that three ·Fredk. can, E<'l··

I ld b I d. 'f h · • • ? I h contunml, years s JOU e t 1e or mary senten<:e, 1 t ere were no extennatmg or aggravatmg Circumstances.- ave JISt.ran. ,g7 ,_

more confidence in the judges than in the juries, and such a plan would be virtually leaving the amount of the sentence to the jury.

zzz. But if it were left to the judge, and if he deviated from the sentence prescribed by law, say that he should he bound to give his reasons in open court ?-That would be really of no avail unless you had an appeal to the Executive as a matter of right. Now it is not a matter of right. I do not think it would be desirable to have such a law inscribed upon the statute book. It seems to me that it would be declaring that you have no confidence in the judges. A man who has heard all the evidence must best know everything in relation to the charge, and that knowledge cannot be transferred to other minds. In gi·l'ing sentence I think there ought to be considered the interests of society, the circumstances under which the crime is committed, and many other things that come before a judge in trying a prisoner.

zz3. On the question of habitual criminals the English ~tatute has not merely fixed a minimum amount of penal servitude, hut enables a magistrate-somewhat in, the same way, but more extensively than under our Vagrant Act-to sentence a prisoner proved to be an tiabitual criminal to a very severe term of imprisonment. As that law is not in force here, do you think it might be adopted with advantage here ?-I have never found a case which I thought I could not adequately deal with under the present law; but I grant that sometimes we have to go a little out of the ordinary course to deal with offences adequately.

zz4. You have to strain the Vagrant Act ?-Yes. As a rule habitual criminals are not workers, and therefore I never find any difficulty in bringing them up as rogues and vagabonds.

zz 5· But they have a Rogue and Vagabond Act in England, and they have found it convenient to pass this Habitual Criminals Act in addition ?-I can see no objection to its being introduced here.

zz6. Do you think it desirable, in the case of juvenile offender5, that magistrates should have the power of inflicting a pecuniary fine on the parents ?-It might be desirable, but I think it would be highly improper to make such a law.

2z7. But, practically, the negligence of the parent in not attending to his duty as a parent has led to the commission of the crime by the child ?-I think, nevertheleiis, that the law would not work equitably.

2z8. Supposing a father has taken no pains to bring up a child who is wilful and wayward, but has allowed him to go his own way, so that the child is at last charged with some criminal offence ?-Still, to fine the father with a view to punish him for neglecting the child, I would not approve of. It would be arriving at a conclusion without having any means of forming a true and equitable one. You could never obtain fair evidence as to how the father had controlled the child. Besides, I think. on principle it is a retro~pective Act which I entirely dissent from. A man has been allowed by the law to neglect his child, and you would punish him for what the law has allowed him to do.

z29. ·would you he in favor of compulsory education ?-Yes. But I think that is very different to holding a parent liable in damages by civil process. In my experience I have known fathers who have uncontrollable sons who gave them almost heart-breaking pangs. They would do all they could to rectify the faults of their sons, and to inflict on such parents in addition fine and imprisonment would be most objectiona.ble.

z3o. But take a case where the father has been proved to have wilfully neglected his child, when the child is brought up for a criminal offence ?-I think the present law meets that by sending the child to a reformatory school and making the father pay for his support, under the Reformatory Schools Act. There are exceptional cases, no doubt, when I would gladly send the father or the mother to prison ; and the mother especially, for it often depends more upon her. I do not see why you should visit it always upon the hard-working husband; it is more the wife's part to look after the children.

2 31. Do you think it would have any moral effect to give power to magistrates to fine, at will, parents in cases where neglect is distinctly proved ?-I would not object to that. There are cases where a. child has grossly misconducted himself with the cognizance, perhaps almost in the presence of the father. In mch cases, I would not object to the principle.

232. How would you punish the boy himself?-! would :flog him. I never send a boy to gaol if I can help it.

233. You would merely sentence him to be :flogged ?-I would merely sentence him to be flogged and turned adrift.

234. And if the flogging had no effect upon him ?-Increase it. 235. Have you visited the reformatories yourself?-Yes. 236. Can you suggest any alterations in them. For instance, whether the boys committed to the

reforinatories or industrial schools should be entrusted to persons who would take charge of them as members of their own families ?-Certainly. I approve of such a suggestion greatly. I think it is far better to have boys pnt out on farms or the like, to be broken in to work. Separating the children is the greatest advantage, for where they are mingled together the greatest evils arise.

237. To the girls as well as boys ?-Yes. Even on board the reformatory vessel, I would not allow the big boys to be with the younger. The younger boys become greatly contaminated by association with the elder. There are some boys in whom depravity is so innate that they can never be reformed, and they conupt the others.

238. Would there be any different way of educating boys boarded out on farms ?-There would be some degree of practical difficulty, no doubt, on that point. But if the moral training is attended to-and I think that is the education most essential-and if it were combined with the ordinary amount of knowledge, I think the boarding out system would be the finest system of all, if it could be carried out. There are some children so ba.d, however, there would be a difficulty in getting persons to take them.

j ' J "'

The witness withdrew.

Adjourned t~ Friday next, at Two o'clock.

•r- l' ,- 3')1-16

FRIDAY, 3RD FEBRUARY 1871.

Jtiembers present:

R. Youl, Esq., M.D., in the chair ; Wm. Templeton, Esq., P.M., I David Blair, Esq.

His Honor Judge Macoboy examined.

Ills Hono~ Judge 2 39· You have been a judge for some considerable time ?-For fourteen years. 3.:r;;g~~~h. 2fO. You are aware that prisoners are granted a remission of the sentence which you pass on them-

that is, that only a portion of it is carried out ?-Yes. 2fl. Do you think it is advisable to continue that system, or that the sentence passed by the judge

should be absolutely served by the prisoner ?-I think it might be advisable that the power of remission should continue, according to the good conduct of the prisoner.

242. It has been suggested by His Honor ,Judge Barry that the sentence passed should be entirely served, hut that the reward for the good eonduct of prisoners should be in their improved condition whilst in the prison, and the payment of a certain amount of the wages they earn when they leave, so as to provide them for the future with the means of living honestly, if they ehose ; do you think that would be better ?­I would not think so. I think the other would be better.

2f3· You think the love of liberty is the strongest ?-Yes. 2ff• It has been discussed before the Commission whether there should be a minimum and maximum

of punishment, and whether the discretion of the judges should be more nearly approximated, for the purpose of making the sentences more uniform ?-I think the reason why there is such inconsistency in the sentences is that a certain principle or rule is not adopted. The rule I invariably adopt is this. I look on the punishmm1t of an offence as intended for the protection of society against the occurrence of such an offence more than for the punishment of the individual; and I invariably ask myself this question--What is the minimum amount of punishment that will deter others and this individual from the commission of a like offence, having regard to the state of that particular crime in the district? And I think if that principle were invariably applied there would be more consistency and uniformity.

2f5· How would it be if the judges were to fix something like a rule by which they should be bound ?-If it was under.,;tood that what I have described was to be the intention of the sentence, and there were something like a rule fixed by the judges, there would be something like uniformity. I recollect when cattle-stealing was very rife in Avoca. I was then chairman of the General Sessions in that district, and I found that, to deter others (and the individuals who were committing those crimes habitually) from the commission of that offence, a very high punishment was necessary; and to stamp it out, as it were, I inflicted a punishment of eight years' imprisonment, and the crime was stamped out by the severity of that punish­ment, so that it disappeared altogether.

246. That would aeeount, in a great measure, for the apparent discrepancy in regard to the sentences passed in different districts for apparently the like offence ?-Yes. Take Avoca ~<gain ; when that crime had ceased, perhaps, I would not give as much, or a sentence of six months for a similar offenee; and that was found to act admirablv.

2f7· You think th~ discretion of the judges should be uninterfered with, excepting by any action of their own?-Unquestionably.

248. And that to ensure uniformity the matter should be left entirely to an arrangement between the judges themselves?-Yes ; by the adoption of a sound rule of conduet by whieh all sentences should be guided.

2f9· Have you seen the English Act called the "Habitual Criminals Act" ?-Yes, I have. 2 so. Do you think it would be a good Act to have enforced in this country ?-I dare say it would;

but I have not considered that question sufficiently. 251. In that, the diseretion of the judges, to a certain extent, is limited; because in that Act no

judge can pass a sentence, as a minimum, upon the roads of less than, I think, four years ?-I think anything of that kind is deeidedly wrong, and objectionable on principle. I think it entirely rests with the judge to apply a principle and rule of conduct. If the intention were only to punish the individual, one day's imprisonment might be more severe to one man than seven years to another. I should put the question to myself in sentencing a culprit, whether he were a poor man or a rich man, what will deter this man and others from commission of a like offence.

2 52. It must produce an injurious effect upon a prisoner (who is also to be considered in the sentence passed), who does not understand why, because a quasi-respectable man steals a horse, he should be sentenced to a shorter term of imprisonment. than he?-That is the very objection I raise. If a sentence of only a month, say, is given to a quasi-respeetable man, whilst to a poor man seven years is adjudged, it would seem as if the sentence was passed for the punishment of the individual, and not for the protection of society. If the offender be an old offender, it would require a great deal heavier sentence to deter him, because your object should be, as I have said, not only to deter others, but to deter the individual in the dock.

253. Then you think it a wise thing that it should be proved before the judge that the man was an habitual offender, and that that should be an element in the punishment ?-Yes.

25f· There are a number of men go in and out of prison who get sentences of three months each time, and who, when they are out of prison, commit over again the same offence, and which makes it not only a great expense to the community robbed but to the community prosecuting. Would it be wise, under t11is Habitual Criminals Act, to be able to send those prisoners to gaol at once for four years, and get rid of them ?-The question is, what would deter the man. If he was an habitual offender, and if it required eight years, I would give it him. If three months would do, I would give him three months.

2 55· He has answered that question himself ?-Then I would give him a longer sentence. The question is what is the minimum punishment that will deter that individual and others.

256. You cannot leave the individual out in considering the punishment ?-No. One man may benefit by a sentence of three months' imprisonment, and it might require, in the ease of an habitual offender, the whole amount of sentence a judge eould give him to deter him from the commission of the crime.

257. For a third or fourth offence, what principle would you apply?-! would eonsider that I was applying the same principle, and that it would require more to deter the habitual criminal than a man who had not offended before.

J;o 17

258. How would you graduate to a fourth offence; by giving a double punishment, or four times much, or what ?-I would just considet• in my own mind what would be effectual.

as His Honor Judge Macoboy. con:tintred,

259. What would fix in your own mind the clements ?-I would say, ''This must be a very hardened kind of fellow, he must require a good punishment."

26o. Cannot that be determined by law ?-The law cannot look before it; it must always depend upon a certain discretion of the judge.

26 I. You are aware that for cases of larceny of under forty shillings magistrates can adjudicate only on the condition that the accused person consents ?-Yes.

262. In respect of those cases of offences to the extent of forty shillings constantly occurring, do you think it would be wiser to increase the jurisdiction of the magistrates, and to give them the absolute power of adjudicating, without any reference to the person accused ?-I would not think so. It may be as difficult to try a case of forty shillings as of forty pounds. I have seen so many blunders by justices not educated and trained, that I should doubt the propriety of that.

263. In the case of a man coming up for offences to the amount of forty shillings, and forty shillings and forty shillings, the expense of the trials is great, and he takes the chances of a jury ?-There ought to be something in the nature of a grand jury. I think it is very hanl sometimes that a man should be tried upon the dictum of the Crown Prosecutor, and in many instances we see the cases break down. We are not ripe enough for a grand jury, but we want something like it.

264. Say that a man prosecuted for a larceny to the extent of forty shillings steals a watch ; if he is a knowing offender-as he most likely is, as he is an old offender-when the magistrates ask if they shall adjudicate, he says, "No, I will go to the Supreme Court." The chances arc very much increased of his getting oft. Do you think in such a case the magistrates should have the power absolutely of adjudicating ?-No. No matter whether it be forty shillings or not, it is equally destructive of his character, and I think every man ought to have an opportunity of going to a jnry . .Forty shillings may be as much to a poor man as forty pounds to a rich man. I think he ought to have the choice. It requires the eye of a judge very often to see whether the thing charged is felonious or not

265. Wonld not that be met by giving the right of appeal ?-There the poor man has not a fair chance ; he has no means, and is very often put to disadvantage ; as it is I have very frequently found a man charged falsely with stealing, where, if he could have thrown character into the scale, he would have got off; but he has been unable to do so for the want of funds; he ought to have the chance of the case coming before a judge, who would act as a sort of counsel and see fair play.

266. Supposing in 99 cases out of 100 the jurisdiction was satisfactory, why should the country be put to the expense of going to a higher court ?-If that has been ascertained to be the case, it would be another thing.

267. As to appeal-would not a prisoner be put to the same expense in being put to trial as if he went before a higher court ?-I do not think he has any money; he is generally forced into prison without friends or money.

268. That applies to committals for trials as well as appeals?-Yes. I think it is too much in the hands of the police. In the lower courts a man has no chance whatever scarct'ly.

269. Then you are of opinion that a man should have always the right to go to trial by jury, if he chooses to take the chance ?-I think so. A poor man has equally the right to go there as a rich man, if he thinks well to do so. I wish to observe that I never have given a cumulative sentence in my life. I have noticed that persons have been astonished why I have not given it. I apply the one test. I say, it is perfectly unavailing to try a man on three or four cases ; and I give for the first offence what I consider an adequate sentence for the preservation of society ; and if I had to try him over again, I should only give the same sentence.

270. Might not that have the effect of making a culprit who commits many offences equal to another who does not ?-No; I take into consideration that he has been committed, say, for four offences; it may be we have the judicial notes before us, and we are fully apprised of the circumstances of the case; we read the depositions. Any judge who reads the depositions before he goes to trial can form a very correct idea; and it is present to his own mind whether the man is a man who ought to get a heavy sentence or not­that is, such a sentence as will give some hope of the man; it would be a monstrous thing to extinguish all hope in him.

271. Do you think there should be any such thing as life sentences ?-It depends entirely upon the circumstances of the ease.

272. That extinguishes all hope ?-I do not think there should be any such thing as sentence for life, or for thirty years, or twenty years even, or for sixteen years.

z73. What do you think should be the maximum ?-I think about ten years. 274. 11mt is to say, supposing hanging still exists ?-Hanging for atrocious crimes. 275. If imprisonment were snstituted for hanging, in the case of a man committing atrocious crimes,

would you think it right to lock him up like a wild beast ?-I would lock him up like a maniac. I think the punishment of hanging should be only carried out in very, very rare cases, where very atrocious crimes are committed-deliberate murder, and other such atrocious cases.

276. Do you think, as respects men who commit offences against women and children, it would be wise that they should suffer c01·poral punishment ?-I think not; because those cases are so easily got up, and after a man has been convicted of such a charge, it may be discovered he is perfectly innocent.

277. Take a case of assault, snch as a violent and brutal assault upon a woman by her husband; is it a question whether be should be punished in the way he seems to have been inclined to punish her ?-I think it is a brutal thing. We should not follow his practice, but endeavor to improve him. For brutality I would not punish by brutality; I would give him hard labor.

278. For juvenile offenders ?-They might get a gentle whipping. I think such a birching as a schoolmaster would give on the breech; I think that is the better way.

279. In substitution, or in addition to the other mode of punishment ?-I think in substitution; it is bad to imprison boys.

280. Do you think, as respects those boys (we must adopt the word "larrikins ") who are offensive in the highways and byeways to every person walking along, that habit could be controlled by inflicting a fine, or some punishment on the parents ?-I think the parents are not answerable to a great extent; they are at work in some way or other, and the young vagabonds get out.

PENAL. c

;I'd Feb. I87I •

3,;~ ·..,

18

MlsHonorJudge 281. On a Sunday ?-On a Sunday I think tho fathers ought to control them, because they would be I;., Macoboy,:;; at home.

tXmtinued, :!l"d Feb. IS7r. 282. At all events yon would make the father prove that his OC(~llJlat'ton prevented him fi'Om superin-

tending them?-Yes ; I think the father is generally employed in bread for the family, and those young vagabonds are beyond control. I would punish them themselves.

283. Flog them, and fine the parents if they did not look after them ?-I would whip them, but not degrade them.

284. Those are something more than boys; they are between I 5 and 19 the most vicious of them?­I think, in regard to those reformatory and industrial places, there might be a wilier limit given to the judge. A case occurred to me some time ago. Two boys were tried before me at Eclmca. I was obliged to send the one boy to the reformatm·y school and the other to gaol. They were little bushrangers, and were guilty of eight or ten cases of horsestealing. The boy of fourteen had been led astray by the boy of sixteen. Had I the power of sending the latter to the reformatory school, I would have done so, as I did with the other. My intention was to keep him from harm; but he was obliged to be sent to gaol, being over fourteen ; and the other being under fourteen, I sent him to the reformatory school.

z85. And you would have sent the other to the reformatory if you had had the power ?-Yes. 286. Do you think there woald be any objection to having a fixed punishment, it being left to the

judge to recommend to the Executive a remission of the punishment ?-I think the Executive should have nothing to do with it. I think that is carried too far already in this country.

287. Why should a judge be more than a mere administrator, or do more than hear the evidence and give a man a fair trial, and award the sentence the law fixes, and then leave it to the Government of the country to determine whether that sentence should be extended or lessened ?-There may be some probability of a wrong principle being adopted.

288. Do you think there would be more wrong done by the method suggested ?-It would be wrong altogether

289. Would it be greater wrong than the present system ?-I cannot think anything right that places ·in the Executive what should be placed in the judges-it is the weak against the strong, the few against the many. It is only because the power exists in the judges, and not in the Executive, that we have liberty at all.

His Honor withdrew. Adjourned to Tuesday next, at two o'clock •

. TUESDAY, IfTH FEBRUARY 1871.

Members present:

Sir W. F. Stawell, in the chair;

The Hon. W. H. F. Mitchell, 1\I.L.C., I C. E. Strutt, Esq., P.M., The Hon. Captain 1\Iac 1\Iahon, Richd. Youl, Esq., 1\I.D.

W. McCrea, Esq., lVLB., examined.

w. McCrea, Esq., ::lf.B.,

290. You have been Chief Medical Officer here for many years ?-I have. 291. Have you inspected the industrial schools ?-I have, very often. 14th Feb, 1871. 292. The Commission are anxious (as that subject has been referred to them) to have your opinion

of the present condition of those schools, and the expediency of making any alteration in regard to them, so that, instead of keeping the boys together in large numbers in a public place, they should be drafted off (in ones, or or greater numbers) to persons who would be willing to undertake their up and education. Are the boys now taught any means of obtaining a livelihood in the way of trades are to some extent.

293· Is that by tradesmen ?-By tradesmen. 294· What trades are they taught ?-Shoemakers, carpenters, and tailors, and farmers ; that is, they

are taught farming by the bailiff up there, and they are taught on board the ship to pull in boats, and they do several little things in regard to a ship to make sailors of them, in fact.

295. In what way are they taught the trades you speak of?-At Sunbury they are taught in this way-a certain number of boys are pnt under the shoemaker, a certain number of boys are put under the carpenter, a certain number are put under the tailor. I am not aware whether there is any other trade taught.

296. Does tbeir education continue at the same time ?-Yes, they attend school half the day. 297. The system has, I :>mppose, scarcely been continued sufficiently long to teach them their trade

completely ?-It has to such an extent that they have been sent out to tailors and shoemakers, and some to farmers, and so on; they are sent under a sort of apprenticeship. They are not sent out as accomplished workmen ; they are finished in their trades afterwards, and then they receive a small payment.

298. How many years' apprenticeship in that institution is supposed to be sufficient ?-It depends upon the individual capacity of each child.

299. Take the average ?-Three years, for tailoring and shoemaking; but three years would scarcely be sufficient for a carpenter.

300. Are the girls taught anything ?-Sewing and washing, and to a certain extent they are taught cooking.

301. And the boys, what recreation have they ?-They play about; they h&ve got those gymnasia­swings, and different kinds of athletic exercises. They are not allowed to leave the ground, but they are allowed to go out a small distance and play about.

302. As a rule, do you think they enjoy the health that boys of that age, kept in the way they are, ought to do ?-1 am sure they do.

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303, Some of the children are really destitute ?-The parents are compelled to pay for some, and w.McCrea,Esq., some are destitute. The superintendent endeavors to find out as much as possible about the children, and c!:~. if he finds the parents are able to pay he prosecutes them, if they are able to pay and do not. I4thFeb.r87'·

304. What reason is assigned for relieving the parent of the necessity of educating his child ?-The children are picked up, first of all, in a destitute state.

305. When the parents are discovered, what then ?-I believe the parent has the option of taking the children back ; and if they are able to pay for them, and they do not, they are prosecuted.

306. It bears on the same queetion, viz., whetJ1er thoBe children might not, with great advantage to themselves and the country, be sent to persons who would take them for a small sum, or no payment whatever, in consideration of their labor, and bring them up and educate them as members of their own family?-I think you could do that after a time; but when those children are brought into the school they are children of i(lle, disorderly habits, and no decent man would take them into his family-that is, in the mojority of cases, they have been nf'glected, and let run about the streets, and have acquired bad habits. There is a very narrow line to be drawn between them and the criminals. Generally speaking those children taken before the police court and sent to the industrial ~chool are found wandering about the streets, with nobody to look after them or care for them.

307. Those boys who are semi-apprenticed out, when are they sent out ?-Thai is after some time being in the school.

308. May those bad habits be eradicated in one or two years ?-My own impression is there ought to be a considerable change in the school altogether. I would send every boy on board ship, and make the Sunbury school a school for girls. By that means you would put them where their health would be better, and where they would not be subject to ophthalmia and skin diseases, which are the two diseases the children are subject to in the school. The health on the whole is better on board ship, and the establishment is a cheaper one. The children do not wear out so much clothes or shoes as on shore, and there is not such a waste of time in going fi·om one operation to another. The boys cannot get about so much on board ship, and at a certain hour they they can be piped to do what is required, so that there is no loss of time between their recreation and their work. They can be trained better and quicker into truthful, orderly, and diligent habits on board ship than they can be anywhere else. For the first two years I would place those boys on board a ship, where they can be taught a number of trades, such as blacksmiths and shipsmiths, locksmiths, boot and shoe makers, coopers, painters, glaziers, sail and tent makers, tailors, and other things : those are a few of the trades I know they can be taught on board ship, and I dare say there are many others. They can also he taken in gangs on shore, and he taught gardening and farming; for instance, they can be taken to Williamstown to the public gardens or the public grounds there, and be taught gardening and farming. The great bulk of the boys you could keep on hoard, say for two years, and after that time 1 would apprentice them out. 'l'heir labor would be valuable, aml their habits would be orderly and diligent; and persons would take boys after the two years who would not at first like to take them, and with advantage to the boys and themselves. Then with regard to girls, whom I have said I would place at Sunbury; I think it is a dangerous practice to pnt girls so near town as they are at the establishment hore. You could teach them other things, in addition to what they are now taught. I would turn Sunbury into a dairy farm forthe breeding of high-bred cattle; and there would be the produce of the dairy, such as milk, butter, and so on. The girls could do all the work except carting the foddc>r to the place; so that the food for the animals, and the manure, could be attended to by two or three married men, whose wives could be made useful. There could thus be produced butter, cheese, poultry, eggs, anil so on. If you turned Sunbury into a place like that, you would be at a con;:;iderable expense no doubt for high-bred cows and sheep.

309. Why do you attach importance to their being high-bred cattle ?-A little while ago a Mr. McDougall brought from New Zealand a high-bred bull, and got £4-oo for it. It would pay better, I imagine, than it would to have a cow yon would pay £10 for if you bought high-bred cattle at high prices and kept a pure breed, so that any farmers in this colony could come to the Government place and get high-bred cattle.

310. You expect that money would he made that way ?-I expect that the expenses of the school would be paid by the sales. If the farmers knew all over thit-~ colony there was a Gover,nment establishment, on which they could rely for tho animals being high-bred, you would get a high and a steady price for them.

3 I I. The girls, according to your plan, would let:trn to make cheese and butter ?-Yes, in addition to their present employment.

3 I 2. Your object would be to teach them occupations and knowledge that would be of use to them afterwards ? -Yes.

3 13· That would be of use to them in country life?-Yes ; all the servant girls copgregate about town, and they will not leave town.

3 I 4· Then you would require persons who are skilled and versed in those matter!) to teach them ?­Yes; you could get them readily ; a,nd you would then tum out a healthy and useful set of girls.

3 I 5· How would you check the obvious temptations to peculation in an institution of that kind ?­In what?

3 I 6. In every article that was produced ?-You are, of course, liable to that anywhere-not only in a. school, but everywhere else. You must put a certain amount of trust and faith in people in whatever way you employ them.

317. How would you anticipate that those girls would be employed ?-I say that there is a great scarcity, at the present moment, of f.·um servants and people to be hired in the country for country work ; those girls would supply this deficiency.

3 18. You would not allow the girls to leave the institution till they were sufficiently taught as servants ?-Not as perfect servants, but until they had obtained such an amount of information as would make them useful to the persons who would be glad to take them.

319. So that, in fact, their education would be begun in the asylum and be finished by the person who took them out, so far as tht>ir becoming good and efilcient servants went ?-Yes.

3 20. Do yon not t hiuk those p:irls might be apprenticed after they had been taught certain habits of neatne;;s and orderly behaviour, and hnd received a certain amount of general information. \Vould not many persons be very glad to get them at ouce, in order to tcaeh them those habits themselves ?-No doubt, after a short training in the schoolB, many people would take those children. They would not be generally taken until they were twelve years of age, and without some especial information about them they would not be taken in till after that by those persons.

20

w.McCrM,Esq., 3z1. If they come at three or four years of age you must keep them ?-The State must take the co!:~. eharge of bringing them up.

14th Feb. tS71• 3zz. That is the point. 'fhe question is-Why not, instead of keeping those children in these insti-tutions, at a great expense to the State, act with them in the way suggested ; what is the objection to keeping them, even at five or six years of age, for a much smaller sum than the cost would be to the State, which would be the effect of giving them to the father and mother of a family to take charge of them. During the first few years of their noviciate those parties would receive a certain sum of money, and the remainder of the term the child would become valuable ?-I see no objection with many of the children ; possibly you would get a large number of them in that way.

J&s. Prince, Esq., 14th Feb. 1871.

3z3. Pay for them whilst they went to school say ?-That would be not only for the first year, but you would have them till they were seven or eight years old.

324. Aud in the same way both with boys and girls?-Yes. 3z5. What is the average age of the boys in Sunbury ?-A boy would not be able to learn to make

himself useful in any of those trades till he was eight or nine years of age, and then I would keep him till he was twelve.

p6. Keeping children under the age of eight years in an institution of that kind must be utterly destructive of delicacy of feeling ; they are brought up, so to speak, as little machines ; you may teach them by rule of thumb to adhere to certain regulations without any sensibility, which is destroyed in them?­You can teach them neatness, orderliness, and cleanliness, which I consider very valuable.

327. How are they to learn the natural feelings that boys and girls would have if judiciously brought up in a family ?-I do not mean to say children brought up in that way and put into school would be brought up so well as in a family, but you must provide for them.

3z8. The question is how to provide for them the best, and at the least expense. The children would not be so well off in those schools as in families, and lying, disorderly young brats like that would be taught diligence, orderliness, cleanliness, and truth ? -If the schoolmasters and the persons over them do not teach them truthful habits it is their fault, and they ought to he removed. In many public schools at home truthful habits are taught, and they are never forgotten.

329. You are clearly (I understand) of opinion that if suitable people could be discovered to take those children, either boys or girls, you see no objection to that course-as a sort of adoption ?-I see every­thing to be commended in it, for both boys and girls.

330. If they should be taken out in this way-children of tender years-would not some supervision be necessary to see that they were properly treated ?-It would be advisable. I think you might have an inspector to go round to the different places, and you could give the children to understand if they were not treated properly they were at liberty to make complaint; that the head of the industrial schools would make inspection and enquiry into it.

33 I. You would not encourage that, but rather that the child should regard the master or mistress in the place of a parent as much as possible?-You cannot draw a sharp line in those cases, but you could impress upon the child it would be worse than useless making idle complaints. I would not encourage them in making trivial complaints, but I would in making just complaints.

33z. Then those boys who had not arrived at a sufficient age to be sent on board ship, how would they be treated ?-Boys up to a certain age, say six years of age, I would put into the girls' school until they were of sufficient age to be drafted on board ship. I would have no boys' schools on shore at all.

333· Then those boys would scarcely require any drilling on board ship ?-As soon as you had ~aught them something, get them apprenticed out in the same way ; nobody would take a boy of six years of age.

334· You mentioned that some of the boys learn farming ?-Yes. 335· How are they disposed of?-I believe their services are very readily engaged, 336. For ordinary farming occupation ?-Yes. 337· Are any of them taught the treatment of vines ?-A gardener is attached to the Sunbury

establishment; but they are taught all gardening to some extent, amongst the rest the culture of vines, but l think not to any great extent.

Tke witness withdrew.

James Prince, Esq., examined. 338. Have you turned your attention to the management of criminals in the old country ?-Yes. 339· What gaols have you visited ?-I have visited Oxford gaol and Newgate. 340. Any of the large penitentiaries ?-No, I have not been in a penitentiary in England. I turned

my attention more particularly to reformatory schools. 341. Did those schools receive destitute children and criminals ?-Yes; I do not think thev are so

particular in England as here in point of small crimes ; for instance, Red llill institution is the finest institution in England. I went there several times, and they took criminal children.

342. What is the system pursued there ?-The buildings are not all together in a heap ; each school is separate in itself, taking in about fifty children ; but there is one main church, and there is one master and mistress to look after each school individually ; there is one head entirely. The Roman Catholic children were turned over to the Roman Catholic schools.

T 343· How were the children employed ?-There are 300 acres of land, and they have thirty cows. Nearly the whole of the labor is done by the boys ; one boy may be put to the tailorincr business another to shoemaking, another to the farming business, so that there are sufficient from each sch~ol to do Ihe land.

344· What becomes of the boys after they have learned a trade ?-After they have served their time up to seventeen years of age, there is an American institution that takes all the children.

345· Those are young men ?-Yes; the boys make the bricks for the building; and out of the thirty cows they make bu~ter and sell. it ; they give the ~kim milk, with porridge, to the boys, for their breakfast.

346. What 1s the Amencan scheme ?-There is a gentleman who takes them to America, and the boys, after they have been in America some ·time, write over to the institution to state they are happy and comfortable, and even send subscriptions towards the schooL

347· So that the whole of that labor is lost to Great Britain ?-Yes. 348. On an average, at what age are they received into the school ?-I think there are some lads

there of about eight years of age.

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349· Not younger ?-No, not younger, because there are other schools that take them before that age •. ras.Prmce, Esq.; 3 50. Have you inspected any of those smaller schools ? -I did in Scotland, but not many. ,4tr.if.~~87 ,, 3 51. How are the children in them treated ?-As nurse children, who cannot do anything. 352. They are merely taught as at an infant school ?-Yes. 353· And are drafted to those other schools ?-Yes. I did not see any boys younger than eight there. 354· Are any apprenticed to people in England, or are they all absorbed by this American system?

-Some of the boys would not go America. 355· What becomes ofthose?-When they leave the school they are supplied with two wide-awake

hats and several shirts ; in fact, they have a regular good outfit ; in case any of the boys wish to go to America, their passage is even paid to America for them.

3 56. What becomes of those who do not go there ?-They have to work as journeymen at the trade which learned in the institution. It is an admirable institution-the 300 acres, with their labor, is nearly cient to produce what they eat.

357· What number have they in this Red Hill school ?-About 38o to 400, 358. How are they admitted or selected ?-They are sent from prison there-some of them that are

old enough. I saw a little fellow who was the post-boy-he showed me the way ; and I asked him what he was in there for, and how long he would have to stay there, and he said he would have to be there, perhaps, four years longer.

359· I suppose they keep them till they have learnt some way of earning a livelihood ?-Yes. There are no servants except a man and a woman, and a teacher for the boys. Since I have come back I went to the Sunbury institution, and also on board the ship, at the request of Sir James McCulloch, and I liked the plan at home better than the plan here. I think you have a much better control-there is a better super­vision of the schools-you have them more under control, and you have a better opportunity of knowing the intelligence of the boys, which could not be so while the boys were all together.

360. Are those buildings contiguous ?-No, in different parts of the estate, but all upon the 300 acres. 3 61. Are they all boys there?-Yes. 362. Have you seen any similar institution for girls?-With regard to the girls, it is a bad look-out ;

they cannot be managed at all. I have been to one of the largest-that is at Hampstead, where two or three large houses have been taken. I had a letter from the Government at home to inspect all the reformatory schools wherever I went. They have great difficulties there. As soon as ever a girl has been sentenced to be kept in this reformatory school-the very moment they are going out, the matron told me, it goes to her heart 1o see the lot of low people coming to fetch their daughters away.

363. Are all those girls criminals ?-I think all are criminals at that school. 364. How long are they detained in the school ?-I saw girls there from about, perhaps, eight to

nine years up to seventeen or eighteen. 365. Are they taught trades ?-They do a very great deal of needlework. 366. Are they separated in different schools in the same way as the boys ?-No, this is only in three

large houses in Hampstead. 367. Is there any limit, so as not to admit children below a certain age ?-They could not admit

babies, for instance. 368. When you say, with regard to the girls, "it is a bad look-out," does that apply to the system in

the school, or to the difficulty of reforming the girls ?-The difficulty of reforming the girls. 369. Not the difficulty of disposing of them afterwards ?-No ; the matron told me that those who

reform can go to places, and she has a report of the character of them a length of time afterwards, to state they are going on well ; but, in many cases, the friends, knowing their time is expired, come and take them away.

370. But, generally speaking, is the larger proportion so reformed as to be able to go into domestic service ?-No, the majority are not reformed. I have seen from my ten years' experience it is almost impossible to reform those criminal girls.

371. Another subject you mentioned incidentally was that you had been to the penal institution at the Cape of Good Hope ?-Yes, that is a thing I should very much like to show you very distinctly what I know of. It is some years since I was there, but they had at the time I was there about 56o criminals in the Bainskloof institution-all males. They make all the passes through the mountains, and the whole of the thing that secures them at night and in the day after they are at home is nothing but tall palings about the height of this room-say about 12 or 13 feet. They have gangs of men all along, and I used to ride to look at them, and I remarked, "Are those prisoners ?" They were making a bridge, and I was told they were all prisoners except the man looking over them ; and I said to him, " What do you do with them at night ?" and he said, "We put a very slight chain on them ; they sleep outside in the bush, and do not go hon:;e to barracks." But the better class of men they did not put chains upon ; but everything on their clothes was marked, so that they could not very well escape; and it is very rare to have any runaways there, because they have adopted the system there-(Mr. Sharp was the man who adopted it)-that if a man was sentenced for five years, if he conducted himself thoroughly well for perhaps say a year, or two, or three years, he was recommended to the Government at Cape Town, and his time was allowed to lapse at a given time. The prisoners are given to understand this when they go there. Another thing is, if they try to make their escape, they are caught and are punished severely. I believe they work in chains for three years.

372. In heavier chains ?-Heavier chains; so that a great difference is made between the characters of good men and thoroughly bad men.

373· What is the nationality generally of those prisoners ?-All sorts. 374· Are there Caffirs there ?-Very few Caffirs. 375· What is the term of sentence ?-They are all long-sentenced men, from five to ten years, and

some for life. 376. A man for life-does he stop there ?-He is sentenced for life. 377· Is he so changed there from what he is everywhere else that he allows a palisade like what

you have described to keep him for life when he could escape ?-All I can say is, it is so. 378. May those men sentenced to life have their sentence abridged ?-I believe so. 379· What are the difficulties of the locality for getting away ?-There is a difficult country to

travel, and one very thinly populated. 380. Therefore the facilities of capturing an escaped convict would be great ?-Yes.

·as. Prince, Esq., 381. Suppose a man did escape, where eould he go to ?-There is the greatest severity if he did;

14:~;~':'187 ,, tho man is known by his drcs~,, nnd if he wore to he helped, the people who lmlpod him would have the chance of going to prison themselves ot· Le fine(l very heavily.

382. Is it the peculiarity of tho country or the particulnr prncticc thoro that prevents escape ?-I think if they made up their mind they could escape; they won ILl perhaps go <lown to the sea-side or Port Elizabeth, or get round, by travelling 100 miles, to the coast; u man might go into a house and get something.

383. What distance are the house;, apart ?-Twenty or thirty miles apart perhaps. 384. There is no harbor for them ?-No. The discipline of Geneva is precisely on the same JJrin·

ciple as at the Cape of Good Hope. 385. Arc those men who behnYe so well, and whose sentence is abridged in the way you have

described, obliged to report themselves ?-:'lro, the1·c is no ticket-of-leave in that WHY; they arc ft·ee entirely. Suppose a man is sentenced in chains for three years, if he comlnct himself thoroughly well, and he is a good working man, he is recommended immediately for tl1e chains to be tttken off of him ; and it is a rare thing for a man to leave ; there are encouragements given to the men to be good ; the nH'n are great smokers, and they arc allowed first of all two ounces of tobacco pm· week.

3 86. Is that a regular ration ?-No, that h merely to tho well-conducted men. I think it is a very important thing-the adopting of a system of that kind.

387. Arc there any indulgencies besides tobacco given, such as tea and other things of that kind?­Tobacco is the main thing

388. Are the men kept in prison at first, or are they at once taken to the work you describe ?-I believe they arc taken immediately to tho works.

389. Are there any ca~cs of men who have taken to tho bush and become bushrangers there ?-No, there is no means for it.

390. What distnnce is I3ainskloof from Capo Town ?-One hundred and twenty miles inland. 391. This you say was seventeen years ago ?-Yes. 392. Do they still continue the same system '?-1 do not know. I huYe not been there since. 393· You mentioned they pnrsued the same system in GeneYn ?-Yes. I bnve the rules-[pro-

dttcing the same ]-I had a free pacs to go into the Geneva prison also. 394· Then the same principle is earded out there ?-The rmnw principle is carried out. 395· Encournging them to work by remi,.,~ion of their sentence on p;ood behaviour ?-Yes. 196. Is there any money given on !Paving the prison ?-Yes ; all the prisoners are obliged to work,

aml half of the earnings of the prisoncra are kept for the prison, a quarter is kept for the prisoner's imme­diate disposal, and tho residue is giyeu to him wlten he goes out.

397· Is that for his immediate disposal given him in tobacco ?-No; if he has a wife and a family he can dispose of n, quarter of his eurnings.

398. Suppose he has no wife and family ?-He has fumitnre, as it is called-that is, little luxuries with his meals.

399· Of what kind ?-They would not allow spirits I think; they would very likely allow tobacco; it is prcciHely on the same principle.

400. It ill the ~ame system carried out with a modification of the details ?-Yes. 401, Jluyo you any idea of the proportion of the expensos ?-It is in the 3nl section of the rules­

labor is obligatory for all persons detained in the prison ; that iR, all of them must vYorlc 402. In Genova they have not that kind of' country that they have in Africa. On what works are

they employed there-are they confined within the walls of the prison?-Yes. 403. What work have they to do ?-They make a very large quantity of the matting, which is

exported to different port8, as far oven as Paris. 404. The rnle says the State shall find them work, but it does not specify the work ?-They work at

trades. 405. In South Afrie:t you spoke of men building bridges ; were they taught the trade of a stone­

mason ?-~o, the laboring men were simply :~t labor; but if you got a stonemnson who is a thoroughly practical mnn, ho could square his work out sufficiently to make a bridge over a pass ; hut at the same time he must he ~uperintcnded, beenuse he is a prisoner.

406. Acting a:J a kind of foreman?-Yes. 407. In the prisons in Switzerland do they teach prisoner~ any trades ?-No, there is great difficulty

in teaching a man nftt>r he has attained to middle lite ; not to enable him to gain a living by it. 408. Arc those prirwiple:< enJTied out in any of the gn.ols in England ?-No, I think nothing of the

kind. I think the Cnpe and the Geneva principle is the best I have seen ns regards prison discipline. 409. In Peatridge men who arc tanifht a trade, as a rule, never come hack, howeYer roughly they

have been taught their trades ?~I say the rough work they may do-n rong:h carpenter mny do rough carpentering work, and a m:m with a lunnnwr ean harnmel', I.ots of blnckomiths would he glad to have a hammerm:m ; you can teach thom tho,~e things.

410. Y;m do not know what the ant~cedents of tlw~e priHoner~ wcnl ?-No. 411. Did you enquire for wlmt crimes they were committed-those men in the gangs that worked on the

pass ?-Mm·dcrs tmd housebreaking, aud robberies and different things-the greatest of crimes. I wont also to the churoh, and I never saw the men conduct tlwmselves Letter; they are divided into sections three times a day; and it did not HCom to me that they had half the people to look after them under tl.e Bainskloof system as here. In Cape Town, if they do not work, they are not allowed to eat. I have known a Caffir go three days without touching a bit of food ; he would uot work ; the Caffirs will not work ; they have never been accustomed io it. The objcet is to make them work-to make it a pnnishment.

412. Do they make all wait npon themselves and cook and clean for the prisoners ?-I think they do everything. I should say the earnings of 560 prisoner8, in the four years, mnko it cost the Siate £zooo over and above the eamings, taking the laborer nt 2s. a day and tho mechanic at 3s. a day.

413. The State had to vote a sum for their snpport, becau~e they were doing work of no value r­Yes ; the ol:ject b to make the n;cn work.

414. Did you hear the proportion of prisoners who were committe(! upon recommitments for seeond convictions ?-No.

415. 'Vlmt became of those men aftcrwm·ds, ns a general rule-a good man who had worked and whose sentence had been remitted ?-I think he went to his friends.

A r6. The State took no charge of him after hi~ release ?-Ko ; when he is released be is released Jas.Prbtce, Esq., l (_] contmu~d.

for good. 14th l!'eb, I87'· 4-I7. Is tho whole amount of tho quarter of his e::rnings given him? -'l'he whole amount is given

him in one sum in Geneva. I do not know t.h:lt they got anything in the Capo. And at the reformatory school, if there i5 no uatl mark ngain~l. a boy i'or ~ix month';, he getH z.d. a week, and for twelve months he gets 4d. a week, and that is a groat encouragement ; and they lmve a piece of land-each boy has got a piece he can cultivate--am! they have very pretty little gardens, und some of the boys are sorry to leave. The superintendent told me it was very satisfactory to receive their letters after they go to America; and some come to Australia ; then they do not know what becomes of them.

4-r8. Do they pay their passage out ?-Yes. The ~oitness withdrew.

Adjourned to Tuesday next, at two o'clock.

WEDNESDAY, zzND MARCH t871.

Present:

The Hon. W. II. F. Mitchell, in the chair; W. Templeton, Esq., P.M., I D. Blair, Esq. R. You!, Esq., M.D.

Richard You!, Esq., M.D., a member of the Commission, examined.

419. Will you he good enough to proceed with the statement you wish to make ?--What I want to R!chd.Youl,Esq.,

point out to the Commission is, first, that in any attempt at reforming prisoners it must be taken into ~1.Ild :~:'x871 , consideration that at least go per cent. of criminals generally are criminals from natural formation. They obey the law of averages, and will uo criminals to the end of tho chapter. The success of any attempts at reformation will be in proportion to the manner in which this 30 per cent. of the criminal population is first weeded out. They are criminals, as it were, by hereditary taint, and are thrown off, by the regular law of averages, from all classes of society, from the highest to the lowest. Tliey aro, moreover, inferior both mentally and physically to the class from which they spring. They arc the wns of drunkar<ls, epileptics, lunatics, and persons of feeble mind, and they no doubt represent the punishment which descends from father to son, to the third and fourth generation. They pursue their calling without reference to the rights and comfort or convenience of any one else, and also without reference to their own comfort and rights ; they are thieves, and they continue thieves, in spite of everything that can be done to them, fi·om their youth to their death. The reason why I bring these facts so prominently before the Commission is because I believe it to he absolutely necessary, and I desire to urge the necessity, to have a Habitual Criminals Act passed to meet the ca!:ie of such criminals. At present a man who lives, for example, by stealing poeket­handkerchiefs, gets a month's sentence, and again a month's sentence, and a third month's sentence, and so it goes on for perhaps twenty years, or for his life. His vocation is only to steal handkerchief,; or something of that kind. He never gets a, larger sentence than two or three months, and the puhlic has to keep up a large police force, gaols, reformal:orie~, and so on, for such petty thieves. It is, in my opinion, absolutely necessary that men of this class should be locked up for a term of years as habitual criminals. Persons well acquainted with the criminal population-the late J.\Ir. Price, for instanee-would pick out the habitual criminals from any number of persons ranged before them, and they are not very difficult of selection. The rest of the criminal class (or, say, 70 per cent. of tho whole) are persons who become criminals from evil example, from necessity, from what they call "fiaslmess ;" or the state of their homes is so horrible tlmt they go out and take to drinking, and to habits which lead them eventually into crime. This class of criminals are most of them, I think, to be reformed, and all reformatory measures should be applied exclusively to them. They are, in relation to crime, just what preventible diseases are in relation to medicine. It is a want of proper education, of proper training, and proper care in youth that leads such people into crime. This was notably shown in the early day:> of transportation to these colonies. When the English Government first commenced to transport prisoners, thoy sent out persons for seven and fourteen years who had committed only very slight offences-offences for which they would now get, perhaps, one, two, or three months' imprisonment. Convicts of this class were separated from the rest, and were sent out to farms and the like as laborers ; they became in time respectable colonists, and a large proportion of them were truly reformed. If the English Government had continued to send out only such people, I question very much if they could have sent out a better class of emigrants. But they altered, and more modern appliances of crimim1llaw modified greatly the punishments for slighter offeucos ; tmd the Imperial Government sent out lastly only those termed" halJitual offenders "-ruffians and thieves by natural formation-who continued to pursue their old callings in Tasmania and New South 'Yales, till at length they became so unendurable that the whole com-munity rose up and objectca to receive any more trausported criminals of any kind. If the Commission will examine any persons acquainted with this subject, I think they will confirm what I have said upon it. I would therefore suggest to the Commission the advisability of, at all events, considedng whether it would not be wise, in inflicting punishments for future offences, that these points should be taken into consideration, and that the punishments should he so apportionetl as to include a certain term of assignment. If this were done, it would take criminals capable of reformation away from the towns, and from the society of those persons who are likely to tempt them again to crime; it wouhl put them in a position to earn some money, and they would become (as I think they would, in a great proportion of instances) honest men once more. I think the system of assignment might be managed, anJ that persons requiring labor would soon get into the habit of readily taking assigneJ prisoners. These would be well-trained, hard-working men; and by making it a rule that if they behaved well, for say five years out of a sentence of seven years, they should have the remaining two years in assignment, I believe that farmers and people up the country would take them into service. It would be, in all probability, a wise and judicious mode of dealing with this class of prisoners.

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l\!chd.Yonl,Esq., 420. In describing habitual criminals, do you speak of them as coming from families the heads of M.D.,

cr.mtimv:d, which-the parents, in fact-either from natural formation or from their moral habits, are bound to produce ~md liiar. rS7r. the criminal constitution in theit· children ?-Yes.

42 I. Is it not a fact, and is it not known for a fact, especially from experience in Van Diemen's Land, that many transported criminals came out from respectable families ?-There must have been some hereditary taint in such families ; at least that is the rule, although I do not say that in every instance it applies. It is doubtless a difficult point to determine ; but all classes in society, from kings to cobblers, throw off a percentage of criminals. As a rule, they are, as I have stated, the sons:of drunkards, epileptics, imbeciles, &c. If you go to Pentridge and enquire into the family history of each prisoner there, you will find that such is invariably the rule.

422. Do you find, on enquiring into the history of thieves, for example, that they come from families all of whom are thieves ?-More or less it is so. You may have instances where there is only one member of a family who is voluntarily so debased ; but the rule holds good on the large scale. The difference between the faculty of acquisitiveness exercised rightly and exercised illegally is very narrow, and a slight difference in mental formation determines it. Again, it is constantly urged in favor of habitual criminals, when they commit any extraordinary crime, that they are of unsound mind. Now, I have never found that crime is essentially identical with insanity. The criminal habit seems to me to be more of a falling short in the perceptive faculties. The wisest and greatest mind that ever was created might possibly become mad, but it could not possibly become an habitual thief. The distinction is, that the one is a disease of the mental organs, whilst the other is a natural born state. It is their utter incapacity to perceive the relations and the rights of othera that makes criminals by habit commit crimes. You will, for instance, observe the most frightful brutality in them sometimes. Thus there is an instance in which two men and a woman were hanged for shooting the husband of the woman, and the story that one of the men told in Melbourne gaol was this :-One of them who was the paramour of the woman came to the other in bed and said, "I wish you would shoot this--- man. I have been pulling the trigger at him and the gun will not go off." The other got up and said "that perhaps the woman did not want her husband shot, and the paramour answered 'do you go and ask her.'" He accordingly went and asked her-" Do you want your husband shot?" and the woman answered" Yes.'' He then went and deliberately shot him. Now, for any ordinary man to commit an atrocious murder on so slight grounds and with such deliberation, one would say it evinced utter badness of moral character. But the truth is, these people had no perception of the crime as a crime. The idea of their being joined together in an atrocious offence against society and the law never occurred to them.

423. Is not the criminal habit mainly due to the want of early education and moral training?­No. It is just as you may train and educate a vicious horse, and then turn him out, and he will kick and throw you all the same when he comes back. So you may take habitual thieves, and train them as much as you please whilst you have them in confinement, in order to make them better men, and they will thieve again when they get loose.

424. Have not all savage nations the same trait of thieving ?-To some extent, but there are admitted rights of property among them ; for instance, tribal rights.

42 5· Do you know whether, as a rule, the class of men you mention have ever had any advantages of early training ?-Sometimes they have. Thus, there was one Owen Suffolk here, who was a wonderful illustration of the habitual thief. I got this man's history from a gentleman who had educated him, and placed him in a factory in England. Suffolk was well educated, and used in conversation the most correct and beautiful language ; but he told me himself, "I cannot help stealing-I shall do it to the end of my life;" and he has done it. He is now in gaol in England for fraud.

426. You were speaking about assigning prisoners to farmers ; do you think there would be any objection on the part of free servants to such a plan ?-I do not think so. It is not necessary for them to know it. It was never found to be so in Tasmania. There, and in New South Wales, people always desired 10 hire a ticket-of-leave man, because having a ticket-of-leave was a proof of good character. It is desirable that prisoners who might be assigned should be men of good conduct, and also good workmen. There has been no objection for so far, in this country, to the system. And even now, men that have been "old hands," as they are called, are freely associated with by the free population. There was scarcely a shearing-shed in the colony at one timP. where there was not an "old hand" employed.

427. You are now speaking of male prisoners only, not of females ?-But females obey the law of criminal average just the same as males.

428. But you would not assign female prisoners ?-No; for female criminals, as a rule, are prostitutes as well as thieves, and you can do nothing with them. The details of the assignment scheme would have to be carefully worked out ; but I think that by assigning male prisoners, and putting them where they would be taught the practical advantages of honesty, you would get great results. I have selected prisoners to give some help to, while I was visiting justice at Pentridge for many years, and I never made a single mistake. I have advanced discharged prisoners money and paid for their passages to all parts of the world, to the amount of hundreds of pounds, and I have never lost a shilling. Many of those men have gone through great hardships, but, they have stuck to their intention to be honest. The other day I received £7 from New Zealand from a discharged prisoner I sent down there. There is a strong feeling of honor amongst them-the phrase "honor among thieves," really has some foundation in fact. What are called the ":flash men," and boys convicted of casual theft, generally repay the trouble and expense you bestow on them ; at least, that is my experience.

429. You mention five years as the shortest sentence on which a prisoner should be assigned; do you think it essential that they should receive five years ?-I do not say it is essential; but I think if you wish to reform a man, the term of punishment should be longer than sentences generally now are. It is impossible to teach a man a trade, taking into consideration the state he is usually in when you begin to teach him, in any shorter })eriod. It is the constant complaint of prisoners to me that, on coming out of prison, if they take a situation, the receivers to whom they were accustomed to sell stolen goods find them out, and go to them and say, "If you do not give this situation up, I will go and tell the em1)loyer who you are." The rascally receivers hunt them up and persecute them until they again go and steal for them. Every thief who is reformed is of course a loss to the receivers of stolen goods. That is a point that ought to be taken into consideration, nnd the punishment for receiving stolen goods should be made twice as heavy as that for stealing. It is the facility for selling stolen goods that really makes thieves.

25

f30· Do any of the receivers carry on ostensible businesses ?-Some of them are marine storekeepers; Rlchd.YonJ,Esq.,

but many of them live respectably and quietly, and are in the practice of "putting up" robberies, in the per- <»~~,;;a, petration of which they never are seen or known. I recollect a case of a man who was convicted of receiving :und Mar. x87r.

stolen goods in whose favor a petition was got up because he was, as alleged, an old man. This man had made hundreds of thieves, and yet he lived like a prince all the time (three years) he was in Melbourne gaol, and there was no power to control or stop his luxurious living. He bad a dinner of three courses sent him regularly every day !

+3 I. The Habitual Criminals .Act passed in England has special provisions of severity against receivers of stolen goods, has it not ?-I have not seen the English .Act, but I think it is most important to have such an .Act in force here. In fact, you can do nothing effectual without it. It is a perfect waste of the expense of magistrates, clerks, gaols, and constables, to be continually looking after petty rascals who live by stealing such trifling articles as door-mats or pocket-handkerchiefs when they are out of prison. I repeat that, out of every one hundred prisoners in gaol, there are about seventy who are capable of refor­mation, and no earthly power would affect the others.

432. Have you considered the question of uniformity of sentences at all ?-I have frequently noticed whilst visiting justice at Pentridge that the sentences passed on different circuits, for what appeared to me to be exactly the same offences, bore no sort of' resemblance to each other. I think it would be much wiser to diminish the discretion allowed to judges in passing sentences. I refer to judges of all classes, from police magistrates up to those of the Supreme Court. I make an exception, however, with respect to the crime of manslaughter, which is certainly an offence of infinitely varied degrees of criminality, and admits both of great palliation and of great severity. I think all other sentences might be approximated much more nearly than they are at present, and the discretion of judges very much lessened. Take an illustration :-Under the .Adulteration of Food Statute, the magistrates very properly, when a charge is laid, require an analysis of the food to prove that it is adulterated. This analysis costs £5, and the man who adulterated the food is fined, probably, ss. The conse­quence is that the public loses £+ I 5s. by every conviction under this Act; and it can be readily understood that the Local Board of Health (which is the City Council) will not willingly incur a penalty of £+ Iss. for every such conviction. The Act is therefore utterly neglected, and this is the consequence of the discretion given to the magistrates under the Act. It is a case, as I think, where no discretion should be allowed. Under the Health of Towns Act, again, the corporation offered a reward for men found emptying cesspools into streets, and drains, and rights-of-way. The reward is, I think, £I, and the magistrates fine offenders 5s., so there is a loss of 1 5s. on each conviction in the administration of that Act. Useful and needful Acts thus actually fall into desuetude from the improper use of the discretion given to magistrates under them. It is the same in the higher courts. Judges seem to be worked upon (being only human beings, like ourselves) by evidences to character and appeals to their feelings. I recollect that Owen Suffolk, the criminal forn1erly mentioned, appealed to Mr. 1Vrixon-who was a judge who usually exercised his functions very severely-in such moving terms that he felt quite sorry for the man, and diminished very much the sentence he had intended to pass on him, and even wrote to the Executive to have him kept separate, so that he might not be spoiled by contact with other criminals. The convictions of the judge were, in this instance, overridden by the capacity of the prisoner to make a moving appeal. Moreover, when prisoners who have just been sentenced arrive in gaol, they compare their sentences with each other :-"What did you do?"-" I stole a horse."-" So did I." "What did you get?"-" I got two years."-" vVell, I have got seven years." I think such inequalities ought to be abolished, and that sentences should be passed with a far less range of relative severity. I think, also, that if a man is convicted of an offence he should serve out the entire punishment. More substantial justice would, in my opinion, be done if judges had merely to pronounce the sentence of the law, with some limited amount of discretion, of course ; but discretion that ranges from one year to twelve years of imprisonment for the same offence is certainly far too wide.

+33· Would it not be wiser to remove all discretion, and leave it to judges simply to recommend any remission they might deem proper ?-No, there would always in that case be appeals made to the judges by friends and the like. I would let the Legislature fix definitely the punishment due to each offence.

+3+· That is exactly what it comes to; but should a judge have no discretion ?-I think that in some instances he ought to have a discretion, in cases of manslaughter most particularly. Under the Habitual Convicts .Act, however, a judge should not be allowed any discretion. The shortest sentences should be five years' imprisonment, and there should be no authority whatever to lessen it if the prisoner were proved to be an habitual criminal.

435· You have not stated your views upon the system of remitting sentences ?-I think on this point that you must hold out some inducement to a prisoner to labor hard and conduct himself well whilst in confinement. If you confine a man in prison for five years, and he must serve the full five years, however he conducts himself, and go out at the end of them just as he went in, you cannot expect him, and by no process of punishment you can inflict could you ever make him work steadily and honestly ; under those circumstances you must hold out some inducement to him to improve. Whether the remission system is a wise one ; or whether (as I have suggested) it would be better to give prisoners a portion of their sentences under assignment on wages; or whether it would be better to give them wages for tha latter portion of their time for working in the prison workshops; still there must be some inducement held out. It has been suggested by persons who never think rationally on the subject that prisonf'rs may be compelled to work by stopping their food ; but if you do that, a coroner's jury happens some time to come together on the case of a deceased prisoner, and some kind-hearted surgeon will say that he thinks the man died from want of food. Of course there would be a great public outcry raised, and very properly, and the system of stopping rations would be put a stop to. The dietary scale at Pentridge is so constructed that a prisoner loses three or four pounds in weight every winter, and makes it up in summer, and you cannot have a better system of diet than that. Every working animal, if you want to keep him at work, must be properly fed ; and in addition, if a prisoner be underfed, you do not send him out in a condition to earn his livelihood. This can only be done by keeping him in proper health, and proper food is a first essential of good health. No prisoner should be turned out of prison with merely a convict's suit of clothes on his back and no money in his pocket. It is utterly impossible for men so circumstanced to get work. Men should be put in a position to prevent their relapsing into thieving ; and any money spent to gain that end is saved to the State.

PENAL. d

26

436. Do you know anything of the elassification of the prisoners in Pentridge ?-There is no classification, and never has been really, although the regulations !'peak of it. The only prisoners who are separated from the re6t are mcu who arc sentenced for lite or for very long terms of imprisonment._ These are kept apart when at work, not from any idea of clas~ifying, but merely for safe keeping. So far as classification is concerned, however, the boys are kept apart from the men, and that is about the whole of it. Prisoners who have served three or four sentences and prisoners with only one sentence are put together. I tried at one time, when there were many more Imperial prisoners in Pentridge than there are now, to have a separate prison for criminals belonging to this community, but I could not get it accomplished. So far as I know, there is not, and never has been, any real classification of the prisoners. Those who are sentenced for life are often well behaved and well regulated; men who have committed only one offence­murder, say-but otherwise are perfectly honest and well conducted ; yet they are kept in the same place with the most abominable characters.

437· \Vhat do you think about the advisability of abolishing life sentences ?-I think that a man instead of being sentenced to imprisonment for life ought to be hanged. This would be a more humane sentence, and a much better example to the community.

438. Is that statement unconditional ?-It is unconditional. Whenever a criminal's offence ha.s been so great that he deserves to be put in prison for life, then he ought to be hanged.

439· Then you hold that commuting a sentence of death to one of imprisonment for life is not in fact merciful to the prisoner ?-No, it is both cruelty to the man himself and a bad example to the community. Moreover, to imprison men for life in Pentridge, where every other prisoner has the hope and certainty of going out sooner or later, is an additional cruelty to these unfortunate men. They are there without any hope and without any chance. If they were confined in a prison where all alike were subject to the same doom, or if they were kept apart altogether, they would not suffer from that additional cruelty; but where there are, very likely in the same yard with them, men whom they know to be greater ruffians than them:5elves, and to see such men going out year after year, is a very severe infliction upon them. If there is to be imprisonment for life, .it would be merciful to confine prisoners of this class in a. separate prison.

440. Do you remember the old system in Van Diemen's Land, where if a man were transported for seven years he had to serve four years before he got a ticket-of-leave ; if he was transported for fourteen years, he had to serve six years ; and if for life, he had eight years to serve ?-Yes.

441. Would you still have the objection to commute sentences of death to imprisonment for life if that system were introduced here ?-If imprisonment for life were merely a nominal thing, it would be different ; but it is not so, it is a real thing. At the instance of some twenty life-sentenced prisoners in Pentridge, I wrote to the Executive Government requestin::; to be informed what was meant by imprison­ment for life ; and the reply was that it meant literally what was stated-" for life." It is absurd to use words when they are not intended to mean what they express. If it be stated that the sentence is "for life," it ought not to be commuted to a term of fifteen years.

44z. Is it within your knowledge that, in Tasmania, where life-sentenced men have been extreme criminals, and have had no hope of ever being released, they have sometimes committed murders in order to get free by death ?-Yes. In fact an additional gua1·d is now. required at Pentridge in consequence of the fear that is entertained that life-~entenced men might make some extraordinary attempt to escape, not caring for risking their lives at all, nor whether they are shot. There should therefore be a separate prison, if the penalty of imprisonment for life is to he kept up.

443· And at Norfolk Islan(,l men who bad the knowledge that they would never be allowed to leave it, would throw lots amongst themselves which of them should be murdered, and who was to be the murderer, so that they might be sent to Sydney to be tried ?-Yes; and the rest would all stand round to see the murder perpetrated, so that they might also be .sent to Sydney as witnesse~. It is a. fact that a prisoner was never known to flinch from the task when the lot fell upon him to be the murderer.

444· Then in fact the system of life-sentences does not tend to improve the men ?-It converts the men into wild beasts-better by far to hang them at once and so have done with them.

445· Have you considered the best means of dealing with youthful criminals, those usually called •< larrikins" ?-I sec groups of such youths all oYer the town, in the suburbs, and everywhere. You can trace them from five years old up till they arc fully developed young blackguards of seventeen ; and I think that, from the beginning of their career, the parents of such boys are the persons really to be blamed. They exercise no control over their children. If you go to the father to complain of the conduct of his sons, he abuses you. The only effectual course to deal with this evil is to commence by punishing the parents. If a man finds that he has to pay for damage done by his children, through their being allowed to run wild in the streets instead of being sent to school, he would take care to k,eep them out of mischief in future.

44.6. But there are a great number of this· class already grown up, and past parental control; how would you propose to denl with them ?-I would flog them, most decidedly. Tl1ere is, by the way, one point in connection with flogging prisoners that I would here mention. Whenever a flo:;rging takes place in the gaol, there are sure to be paragraphs in the newspapers about the manner in. which the flogging was performed, and how borne by the culprits. Now, criminals, and especially juvenile criminals, find that they are made heroes of in this way, the punishment of flogging will be rendere•l utterly useless fo.r .. them. .

447· Are you aware of any gaol regulation by which the public are admitted to witness these floggings? -I do not think the public are admitted; only the newspaper reporters.

448. Under what regulation are reporters admitted ?-That I do Ii.ot know. Therei.s none that I am aware of. I am quite clear that the permission does an immense deal of mischief, and should not be allowed. Juvenile offenders should be sent to gaol' and well whipped, and thim sent away. again. They should not be kept in prison at all; aud whatever mischief they do their parents should be made tp pay for. This nuisance of "la.rrikinism" is becoming quite intole1'able. Wherevei· you go-whether to the .Botahical Gardens, the Carlton Gardens, or, in fact, anywhere around the city-you will find groups of .boys hailing the passers-by with al.msive and insulting language. In the case of ladies passing, the language used is often shockingly insulting and, indecent. The practice is most indulged in by tlie young SCOUndrels on Sundays. I am persuaded that if forty or fifty of them VI' ere taken up on Monday morning and taken to. the gaol,· and there soundly flogged and then dismissed, and if, on th(l following morning, their. fathers W!Jre had up and fined, the evil of "larrikinism" would be put a 'stop to at once, as if by magic. · ·

27

449· Are many of these lads in employment?-Yes; a great many are in employment and earning Uicl"l~i:;~.~: E><j.. good wages. They very soon become independent of and careless about their parents ; and this arises from ,.,mtinu,,d,

the parents not exercising proper control over them in youth. I was driving down Rathdowne street the zzmt Mar. ' 8i'­

other day, and the cabman spoke to a little fellow of about ten years old who was smoking on the roadway. He said-" You had better run; your father is coming, and he will stop your smoking." To this the youngster replied-" No, he won't ; and I don't care a damn about him ! "

450. Have you considered the best means of dealing with sexual offences ?-I have. In the fit·st place, with reference to the offence of seduction, which is so common in romances, but very rare in actual life. If means be taken to ascertain the manner in which the greater number of the common prostitutes on the town have been brought to their present condition, it will be found that very few of them have been really seduced. They are generally prostitutes by what I have termed the law of average. They are either procured by women, and induced to become prostitutes by profession, or they are induced by their companions to adopt the life; and a vast proportion of them have never been from their earliest youth anything else. The system that occasionally obtains of apprehending and locking up a number of these women always leads to their substitution by women who up to that time have been of respectable character: In one instance, where fifty or sixty of them were sent to gaol at once, it was found that procuresses were getting other women from the labor marts and from situations, &c., for the purpose of supplying their places ; and I had to J'ecommend to the Government that the imprisoned women should be released to prevent the prostitution of others. It should be pointed out to the police authorities that this is the actual and positive result of their doubtless well-meant labors to suppress prostitution in the streets. It would even he better, in my opinion, if the practice were tolerated and controlled by the State.

451. With reference to assaults upon women and children, are such offences more common now than they were formerly ?-I do not think so. They are not more numerous in this colony than they are in all communities. Even in Prussia (which is considered a. model State) they are very CO!Jli;IlOn. 'l'hey are not more common here. For men who abuse by violence children and grown persons the punishment of castration has been· proposed; but, as this method would· be mutilating and punishing a man for ever, I think it is contrary to the spirit of all just penal law. It is a punishment, moreover, that compj'lnsation cannot be made for, provid~d a man is subsequently found not to have been guilty. At least fifty.per. een~. of those cases brought before courts are, in my opinion, trumped-up ones ; .and I have known many men chargeu with such offences who have subsequently been found to have been not guilty. With reference to oflimces of exposure of the person, indecent assaults upon girls and young. children and the like, T believe flogging to be the only proper and effectual remedy. These offences obey the law of average, like all others, and men can only be restrained from committing them by the fear of severe corporal punishment.

Adjourned to Tuesdag ne3:t.

,_,;

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APPENDIX I.

REMISSION OF SENTENCES.

Copy of a Communication addressed by His Honor Judge Barry to the Honorable the Chief Secretary,

on the subject of Remission of Sentences.-2 rst May r 86o.

As regards mitigation of sentence after the prisoner has undergone a lengthened portion of the judicial sentence passed on him, the grounds for indulgence or clemency resting solely on his good conduct in gaol, I submit that with such a subject the Judges have nothing to do: considerations which form grounds for infliction of judicial sentence are totally different from such as are involved in deciding whether the conduct of a prisoner evince a conscientious, a scrupulous, or a conventional compliance with regulations for administering penal discipline. The range of the one is external, embracing the whole social system; of the other, internal, restricted to an area and assemblage of prisoners exceptional in every sense, of which the Judge has no knowledge, over whom he exercises no supervision, of whose conduct he hears no report from a person responsible to him; while what he does see as a report of the behaviour of the prisoner may be perfectly correct and consistent with the utter absence of real reformation on his part. The reference to the Judge under these circumstances seems to me useless. If he dissent from the proposed emancipation of the prisoner, it is extremely doubtful that his dissent can be placed on the proper footing. If he assent, he may lfe instrumental in the premature enlargement of an unreformed culprit.

To the Judge it may be left to determine on the guilt or innocence of the accused, and upon the extreme of the limit for which it is necessary that he should be withdrawn from society; to the administrative department to decide, after careful examination into the merits of the report of responsible supervision and control, by how much that limit may be safely abridged.

It appears to me that if a prisoner be enlarged from gaol with an unconditional pardon, he has the benefit of a. great privilege; but in my opinion he is entitled to more.

The relapse of many prisoners occurs immediately after they leave gaol, in consequence of their being, when emancipated, actually thrown destitute upon the world, bankrupt in character as well as in fortune. Driven thereby to renew their acquaintance with their former associates in crime, the only friends left to them, it follows inevitably that, despite their resolutions to the contrary, and actually against their will, they become insensibly involved in the commission of new offences.

From this they might be saved, or at least protected, if they were allowed to work for wages of even trifling amount for the last sixth, ninth, or even twelfth part of the period of their sentence, and if, except in the ease of prisoners with families having a permanent residence in a particular place, they were on being discharged from gaol allowed, if they asked for their travelling expenses, to enable them to proceed to some distant part of the country to be named by the Executive-a new field for their experiment to reform-these expenses to be paid at that place within some time, perhaps a month, after their arrival there. The first recommendation would form an admirable incentive to good conduct in gaol, as well as a means of enforcing discipline. A pecuniary mulct by way of deduction from the earnings would be more severely felt than the imposition of extra labor, or the privation of some personal or sensual indulgence.

And it might be made an inflexible rule that no application for mitigation of sentence be entertained unless the prisoner have to his credit the prescribed sum which it is resolved he ahould have on leaving gaol.

It will moreover ensure his having means of support for a short time after his discharge to enable him to get honest employment, and perhaps rescue him from contact with persons whose influence will be reproductive of offences against the law. The substitution of rewarded for unrewarded labor makes it, though compulsory, acceptable to the prisoner instead of repulsive, by producing a tangible and valuable result to be prospectively beneficial to him at that critical juncture when he will stand most in need of it. New desires are raised, and a totally new field of reasoning upon the nature and object of the punishment he is undergoing is opened. Unable to see the necessary and relative connection between hard labor and reformation, he regards punishment as inflicted on him by a dominant power in society from a spirit of revenge ; his appetites and passions are unsubdued, his inclinations unchanged ; and having gone through his allotted task, fear and cunning having combined to induce a literal compliance with the prison regulations, he is enlarged to retaliate as soon as he can with impunity upon the society which has treated him, as he considers, too harshly.

If he be invited to consider punishment as inflicted not solely as retribution with reference to himself, and as deterrent with respect to others, but also as intended to wean him from his evil ways, and, moreover, be made to see that the proposed reformation is accompanied with substantial reward, self-interest will induce habits constituting of themselves a training whieh will lead to reflection, and the ultimate adoption of the resolution of amendment. He will then, and not before, become really sensible of virtuous and religious impressions, and hope may reasonably be entertained that on being restored to society he will become a good citizen. For the further protection and encouragement of prisoners, it is in my opinion extremely desirable that the police should have general instructions to assist in procuring engagements for them in the districts to which they proceed on being discharged from gaol ; this would form a substitute for the Societts de patronage found in Bavaria and other continental countries, which assist the discharged prisoners in finding those means of earning a livelihood which respectable society refuses to them.

It would in great measure rescue them from the danger consequent upon loitering about public-houses to obtain a. hiring, the present constant use. It would furnish a. mutual assurance to masters and servants, that as the character of the latter was known, and as he was bound to use every exertion to maintain the good reputation he was endeavoring to form for himself, the former was under reciprocal obligation to treat him fairly, a.nd assist him in working out his reformation. It would, moreover, establish a species of police supervision, more valuable than the ticket-of-leave system, divested of the obnoxious principle of compulsory periodical attendance in public to proclaim their condition, and would admit of prisoners being quietly absorbed into the ranks of society, unremarked by all except those under whose observation, not direct notice, it is necessary they should be perpetually kept. However, unless great care be taken in providing not merely superficial and unsound, but effectual means of improving the moral condition of prisoners, little good will, in my opinion, be wrought by the great indulgence which it is proposed to extend to them.

To discharge at our doors a ticket-of-leave man without a ticket-of-leave, without a shilling, without a character, without a friend, without principle, without moral restraint on his appetites, actions, or passions, and to expect him there­upon to adopt a virtuous life, is not only to expect an impossibility but to enlarge a most dangerous person under circum­atances eminently calculated to cause him to be a source of frequent alarm and to become an intolerable nuisance to society.

j

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APPENDIX II.

ON BANISHMENT AS A PENALTY.

By His Honor Judge Barry.

I believe it would be found advantageous to introduce and legalize a system of banishment. It exists in practice at present, inasmuch as prisoners have been discharged from gaol before the expiration of the term of their imprisonment, on condition that they would leave Victoria and would not return. As such an arrangement is a matter of agreement between the prisoner and the Executive, there may be some difficulty in dealing with such an one were he to return.

In many instances crimes not very serious have been committed by persons recently arrived in the colony, who have selected Victoria with no fixed purpose of making it their permanent place of abode. Others, also convicted, have no tie to the country which they would not willingly sever if emancipated and allowed to try their fortunes elsewhere.

Amongst these classes of persons there are not many who would turn out desirable members of our community ; and it is questionable if the work they give to the Government in gaol be an equivalent for the expe!lse of feeding, clothing, and guarding them.

Banishment would not be to such men a punishment of the severe nature of exile from native country, family, friends, and the associations and prospects by which they were surrounded. It ought to affect them as a warning and inducement to good behaviour.

If legalized, the conditions imposed would be similar to those formerly in force with respect to convicts returning from transportation, except that he should not be punished with death (5 Geo. IV. c. 84. s. zz) ; but the milder modern course might be substituted.

The proof might be simplified by causing each man (before emancipated) to sign a paper, a form of wbich might be given in the Act, in which full particulars might be given of the prisoner (describing his person, with a photograph annexed), and the conditions on which he was allowed the indulgence of banishment. This would involve merely the proof of identity. It would be wholly unnecessary to put the country to the expense of the prosecution before a jury of such a person. He might be tried before a police magistrate, or two justices, at the place of capture : such justice or justices having power, as they saw fit, to remand him to the assize town from the goal of which he was enlarged.

Of course no such prisoner would be allowed to agree to banishment if married, or the father of children in Victoria, or if the source of support of any person or persons dependent on him in Victoria. If in infirn1 health, humanity suggests that an assurance be given that they go a place where they may reasonably expect to be taken care of.

There are many prisoners in our gaols to whom no other prospect is open than ending their lives in an hospital or benevolent asylumn at some time more or less distant, after intermediate imprisonment in various gaols. These men are, many of them at present, a burden to the State while in goal, their labor being of little value; and will be, when they leave gaol, a pest to the community.

The country would be well rid of such persons, and they might find their way to other places, where, removed from the old companions of their guilt, they might reform.

The form in the sehedule, or similar agreement, should be signed before a Judge of the Supreme Court, so that the prisoner is not to be deemed to have executed it under duress.

SCHEDULE A.

WHEREAS A.B., late of laborer, was at the court held at on the day of gaol at for

convicted of the crime of and sentenced to be imprisoned in Her Majesty's and there kept to hard labor, and has been in due course of law committed to the said

gaol in which he now is. And whereas the said A.B., in consideration that the portion of the said sentence now unexpired should be remitted,

has agreed that he will leave Victoria. within days, and that he will not return thereto: It is witnessed that if the said A. H. be found within Victoria. at any time after the day of r87 he shall be liable to be tried summarily for such offence and sentenced to imprisonment in any gaol in Victoria for years, with or without hard labor.

Witness this day of A.B. at C. D. his mark.

Name. Country. Oecupntion. Age. Height.1

Description. Special :3tarks. Educ.ntion. --f~. j~i i A.B. England Frome i Somerset- Laborer •• 36 00 00 00 .. .Anchor on left Reads a li ttlc ; (l'hotograjlh) arm, first and ,, .. ,.ites :i.mper-

I second jotnrs fectly

!

ofi' little finger ol left hand

Signed in Her Majesty's gaol of by the said A.B., in the presence of me. Jc.D. A.B.

By Authority: JoHN FERREl!, Government Printer, Melbourne

P.EN.!L. e