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he is swayed, partly by the special quality of the offence, partly by the circumstances under which it was committed, partly by the prisoner's appearance and behaviour, partly by the character given to him. And the conclusion he arrives at after consideration of these data, depends very
much on his individual nature—his moral bias and his theories of human conduct. Thus the mode of fixing the lengths of penal restraints, is from beginning to end, little else than guessing. How ill this system of guessing works, we have abundant proofs. Justices' justice,” which illustrates it in its simplest form, has become a byeword;
and the decisions of higher criminal courts continually err in the directions of both undue severity and undue lenity. Daily do there occur cases of extremelytrifling transgression visited with imprisonment of considerable length; and daily do there occur cases in which the punishment is so inadequate, that the offender time after time commits new crimes, when time after time discharged from custody.
Now the question is, whether in place of this purely empirical method which answers so ill, equity can guide us to a method which shall more correctly adjust the period of restraint to the requirement in each case. We believe
We believe that by following out its dictates, we shall arrive at a method that is in great measure self-acting; and therefore less liable to be vitiated by errors of individual judgment or feeling.
We have seen that were the requirements of absolute morality consulted, every transgressor would be compelled to make restitution or compensation. Throughout a considerable range of cases, this would itself involve a period of restraint varying in proportion to the magnitude of the offence. It is true that when the malefactor possessed ample means, the making restitution or compensation would usually be to him but a slight punishment. But
FIXING THE DURATION OF PUNISHMENT.
though in these comparatively few cases, the regulation would fall short of its object, in so far as its effect on the criminal was concerned; yet in the immense majority of cases--in all cases of aggressions committed by the poorer members of the community-it would act with efficiency. It would involve periods of detention that would be longer or shorter according as the injury done was greater or less; and according as the transgressor was idle or industrious. And although between the injury done by an offender and his moral turpitude, there is no constant and exact proportion; yet the greatness of the injury done, affords, on the average of cases, a better measure of the discipline required, than do the votes of Parliamentary majorities and the guesses of judges.
But our guidance does not end here. An endeavour still further to do that which is strictly equitable, will carry us still nearer to a correct adjustment of discipline to delinquency. When, having enforced restitution, we insist on some adequate guarantee that society shall not be again injured, and accept any guarantee that is sufficient; we open the way to a self-acting regulator of the period of detention. Already our laws are in many cases satisfied with securities for future good behaviour. Al. ready this system manifestly tends to separate the more vicious from the less vicious : seeing that, on the average, the difficulty of finding securities is great in proportion as the character is bad. And what we propose is, that this system, now confined to particular kinds of offences, shall be made general. But let us be more specific.
A prisoner on his trial calls witnesses to testify to his previous character—that is, if his character has been tolerably good. The evidence thus given weighs more or less in his favour, according to the respectability of the witnesses, their number, and the nature of their testimony. Taking into account these several elements, the judge forms his conception of the delinquent’s general disposi tion; and modifies the length of punishment accordingly. Now, may we not fairly say that if the current opinion respecting a convict's character could be brought directly to bear in qualifying the statutory sentence, instead of being brought indirectly to bear, as at present, it would be a great improvement ? Clearly the estimate made by a judge from such testimony, must be far less accurate than the estimate made by the prisoner's neighbours and employers. Clearly, too, the opinion expressed by such neighbours and employers in the witness-box, is less trust worthy than an opinion which entailed on them serious responsibility. The desideratum is, that a prisoner's sentence shall be qualified by the judgment of those who have had life-long experience of him; and that the sincerity of this judgment shall be tested by their readiness to act
But how is this to be done? A very simple method of doing it has been suggested.* When a convict has fulfilled his task of making restitution or compensation, let it be possible for one or other of those who have known him, to take him out of confinement, on giving adequate bail for his good behaviour. Always premising that such an arrangement shall be possible only under an official permit, to be withheld if the prisoner's conduct has been unsatisfactory; and always premising that the person who offers bail shall be of good character and means;
let it be competent for such a one to liberate a prisoner by being bound on his behalf for a specific sum, or by. undertaking to make good any injury which he may do to his fellow-citizens within a specified period. This will doubtless be thought a startling proposal. We shall, however, find good reasons to believe it might be safely acted on
* We owe the suggestion to Mr. Octavius H. Smith.
nay, we shall find facts proving the success of a plan that is obviously less safe.
Under such an arrangement, the liberator and the convict would usually stand in the relation of employer and employed. Those to be thus conditionally released, would be ready to work for somewhat lower wages than were usual in their occupation; and those who became bound for them, besides having this economy of wages as an incentive, would be in a manner guaranteed by it against the risk undertaken. In working for less money, and in being under the surveillance of his master, the convict would still be undergoing a mitigated discipline. And while, on the one hand, he would be .put on his good behaviour by the consciousness that his master might at any time cancel the contract and surrender him back to the authorities; he would, on the other hand, have a remedy against his master's harshness, in the option of returning to prison, and there maintaining himself for the remainder of his term.
Observe next, that the difficulty of obtaining such conditional release, would vary with the gravity of the offence that had been committed. Men guilty of heinous crimes would remain in prison; for none would dare to become responsible for their good behaviour. Any one convicted a second time, would remain unbailed for a much longer period than before; seeing that having once inflicted loss on some one bound for him, he would not again be so soon offered the opportunity of doing the like: only after a long period of good behaviour testified to by prison-officers, would he be likely to get another chance. Conversely, those whose transgressions were not serious, and who had usually been well-conducted, would readily obtain recognizances; while to venial offenders this qualified liberation would come as soon as they had made restitution. Moreover, when innocent persons had been pronounced guilty, as well as in cases of solitary misdeeds being committed by those of really superior natures, the system we have described would supply a remedy.
From the wrong verdicts of the law, and its mistaken estimates of turpitude, there would be an appeal; and long-proved worth would bring its reward in the mitigation of grievous injustices.
A further advantage would by implication result, in the shape of a long industrial discipline for those who most needed it. Speaking generally, diligent and skilful workmen, who were on the whole useful members of society, would, if their offences were not serious, soon obtain employers to give bail for them. Whereas, members of the especially criminal class—the idle and the dissolute -would remain long in confinement; since, until they had been brought by the discipline of self-maintenance under restraint, to something like industrial efficiency, employers would not be tempted to become responsible for them.
We should thus have a self-acting test, not only of the length of restraint required for social safety, but also of that apprenticeship to labour which many convicts need; while there would be supplied a means of rectifying sundry failures and excesses of our present system. would practically amount to an extension of trial by jury. At present, the State calls in certain of a prisoner's fellowcitizens to decide whether he is guilty or not guilty: the judge, under guidance of the penal laws, being left to decide what punishment he deserves, if guilty. Under the arrangement we have described, the judge's decision would admit of modification by a jury of the convict's neighbours. And this natural jury, while it would be best fitted by previous knowledge of the man, to form an opinion, would be rendered cautious by the sense of grave responsibility: inasmuch as any one of its