Under such an arrangement, the liberator and the convict would usually stand in the relation of employer and employed. Those to be thus conditionally released, would be ready to work for somewhat lower wages than were usual in their occupation; and those who became bound for them, besides having this economy of wages as an incentive, would be in a manner guaranteed by it against the risk undertaken. In working for less money, and in being under the surveillance of his master, the convict would still be undergoing a mitigated discipline. And while, on the one hand, he would be put on his good behaviour by the consciousness that his master might at any time cancel the contract and surrender him back to the authorities, he would, on the other hand, have a remedy against his master’s harshness, in the option of returning to prison, and there maintaining himself for the remainder of his term.

Observe, next, that the difficulty of obtaining such conditional release would vary with the gravity of the offence which had been committed. Men guilty of heinous crimes would remain in prison; for none would dare to become responsible for their good behaviour. Any one convicted a second time would remain unbailed for a much longer period than before; seeing that having once inflicted loss on some one bound for him, he would not again be so soon offered the opportunity of doing the like: only after a long period of good behaviour testified to by prison-officers, would he be likely to get another chance. Conversely, those whose transgressions were not serious, and who had usually been {185} well-conducted, would readily obtain recognizances; while to venial offenders this qualified liberation would come as soon as they had made restitution. Moreover, when innocent persons had been pronounced guilty, as well as when solitary misdeeds had been committed by those of really superior natures, the system we have described would supply a remedy. From the wrong verdicts of the law and its mistaken estimates of turpitude, there would be an appeal; and long-proved worth would bring its reward in the mitigation of grievous injustices.

A further advantage would by implication result, in the shape of a long industrial discipline for those who most needed it. Speaking generally, diligent and skilful workmen, who were on the whole useful members of society, would, if their offences were not serious, soon obtain employers to give bail for them. Whereas members of the criminal class—the idle and the dissolute—would remain long in confinement; since, until they had been brought by habitual self-maintenance under restraint, to something like industrial efficiency, employers would not be tempted to become responsible for them.

We should thus have a self-acting test, not only of the length of restraint required for social safety, but also of that apprenticeship to labour which many convicts need; while there would be supplied a means of rectifying sundry failures and excesses of our present system. The plan would practically amount to an extension of trial by jury. At present, the State calls in certain of a prisoner’s fellow-citizens to decide whether he is guilty or not guilty: the judge, under guidance of the penal laws, being left to decide what punishment he deserves, if guilty. Under the arrangement we have described, the judge’s decision would admit of modification by a jury of the convict’s neighbours. And this natural jury, while it would be best fitted by previous knowledge of the man to form an opinion, would be rendered cautious by the sense of grave responsibility; inasmuch as {186} any one of its number who gave a conditional release, would do so at his own peril.

And now mark that all the evidence forthcoming to prove the safety and advantages of the “intermediate system,” proves, still more conclusively, the safety and advantages of this system which we would substitute for it. What we have described, is nothing more than an intermediate system reduced to a natural instead of an artificial form—carried out with natural checks instead of artificial checks. If, as Captain Crofton has experimentally shown, it is safe to give a prisoner conditional liberation, on the strength of good conduct during a certain period of prison-discipline; it is evidently safer to let his conditional liberation depend not alone on good conduct while under the eyes of his jailors, but also on the character he had earned during his previous life. If it is safe to act on the judgments of officials whose experience of a convict’s behaviour is comparatively limited, and who do not suffer penalties when their judgments are mistaken; then, manifestly, it is safer (when such officials can show no reason to the contrary), to act on the additional judgment of one who has not only had better opportunities of knowing the convict, but who will be a serious loser if his judgment proves erroneous. Further, that surveillance over each conditionally-liberated prisoner, which the “intermediate system” exercises, would be still better exercised when, instead of going to a strange master in a strange district, the prisoner went to some master in his own district; and, under such circumstances, it would be easier to get information respecting his after-career. There is every reason to think that this method would be workable. If, on the recommendation of the officers, Captain Crofton’s prisoners obtain employers “who have on many occasions returned for others, in consequence of the good conduct of those at first engaged;” still better would be the action of the system when, instead of the employers having “every {187} facility placed at their disposal for satisfying themselves as to the antecedents of the convict,” they were already familiar with his antecedents.

Finally, let us not overlook the fact, that this course is the only one which, while duly consulting social safety, is also entirely just to the prisoner. As we have shown, the restraints imposed on a criminal are warranted by absolute equity, only to the extent needful to prevent further aggressions on his fellow-men; and when his fellow-men impose greater restraints than these, they trespass against him. Hence, when a prisoner has worked out his task of making restitution, and, so far as is possible, undone the wrong he had done, society is, in strict justice, bound to accept any arrangement which adequately protects its members against further injury. And if, moved by the expectation of profit, or other motive, any citizen sufficiently substantial and trustworthy, will take on himself to hold society harmless, society must agree to his proposal. All it can rightly require is, that the guarantee against contingent injury shall be adequate; which, of course, it never can be where the contingent injury is of the gravest kind. No bail could compensate for murder; and therefore against this, and other extreme crimes, society would rightly refuse any such guarantee, even if offered, which it would be very unlikely to be.

Such, then, is our code of prison-ethics. Such is the ideal which we ought to keep ever in view when modifying our penal system. Again we say, as we said at the outset, that the realization of such an ideal wholly depends on the advance of civilization. Let no one carry away the impression that we regard all these purely equitable regulations as immediately practicable. Though they may be partially carried out, we think it highly improbable that they could at present be carried out in full. The number of offenders, the low average of enlightenment, the ill-working of {188} administrative machinery, and above all, the difficulty of obtaining officials of adequate intelligence, good feeling, and self-control, are obstacles which must long stand in the way of a system so complex as that which morality dictates. And we here assert, as emphatically as before, that the harshest penal system is ethically justified if it is as good as the circumstances of the time permit. However great the cruelties it inflicts, yet if a system theoretically more equitable would not be a sufficient terror to evil-doers, or could not be worked, from lack of officers sufficiently judicious, honest, and humane—if less rigorous methods would entail a diminution of social security; then the methods in use are extrinsically good though intrinsically bad. They are, as before said, the least wrong, and therefore relatively right.

Nevertheless, as we have endeavoured to prove, it is immensely important that, while duly considering the relatively right, we should keep the absolutely right constantly in view. True as it is that, in this transition state, our conceptions of the ultimately expedient must ever be qualified by our experience of the proximately expedient; it is not the less true that the proximately expedient cannot be determined unless the ultimately expedient is known. Before we can say what is as good as the time permits, we must say what is abstractedly good; for the first idea involves the last. We must have some fixed standard, some invariable measure, some constant clue; otherwise we shall inevitably be misled by the suggestions of immediate policy, and wander away from the right rather than advance towards it. This conclusion is fully borne out by the facts we have cited. In other cases, as well as in the case of penal discipline, the evidence shows how terribly we have erred from obstinately refusing to consult first principles and clinging to an unreasoning empiricism. Though, during civilization, grievous evils have occasionally arisen from attempts suddenly to realize absolute rectitude, yet a {189} greater sum total of evils has arisen from the more usual course of ignoring absolute rectitude. Age after age, effete institutions have been maintained far longer than they would else have been, and equitable arrangements have been needlessly postponed. Is it not time for us to profit by past lessons?

POSTSCRIPT.—Since the publication of this essay in 1860 further evidence supporting its conclusions has been made public. Dr. F.J. Mouat, late Inspector-General of Gaols in Lower Bengal, has given, in various pamphlets and articles, dating from 1872, accounts of his experiences, which entirely harmonize with the foregoing general argument. Speaking of three leading systems of prison-discipline, “based on opposite theories,” he says:—

“The oldest is, that a prison should be rendered a terror to evil doers by the infliction of as much pain as can be inflicted, without direct injury to health or risk to life. The second plan is a graduated system of punishment, from which the direct infliction of pain is eliminated, and the prisoner is allowed to work his way to freedom and mitigation of sentence, by mere good conduct in jail. The third, and in my humble judgment the best, is to convert every prison into a school of industry, labour being used as an instrument of punishment, discipline, and reformation.”—Prison Industry in its Primitive, Reformatory, and Economic Aspects (London, Nov. 1889).

In his pamphlet on the Prison System of India, published in 1872, Dr. Mouat contends:—

“That remunerative prison labour is an efficient instrument of punishment and reformation by occupying the whole available time of criminals in uncongenial and compulsory employments; by teaching them the means of gaining an honest livelihood on release; by the inculcation of habits of order and industry, to the displacement of the irregularity and idleness which are the sources of so much vice and crime; and by repaying to the State the whole or part of the cost of repression of crime by the compulsory industry of the unproductive classes, and thus relieving the community at large from a burden which it is at present compelled to bear.

“That the economic objections to the remunerative employment of convicts are unsound and untenable; and that even if they were true as respects individuals and small sections of the community, the interests of the minority should yield to the general welfare.”

Once more, under the title Prison Discipline and its Results in Bengal, first published in the Journal of the {190} Society of Arts in 1872, Dr. Mouat, after describing an exhibition of gaol-manufactures held in Calcutta in 1856, urges “that every prisoner sentenced to labour should be made to repay to the State the whole cost of his punishment in gaol; . . . and that prisons should be made, as much as possible, schools of industry, as combining, more completely than can be effected by any other system, the punishment of the offender, with the protection of society.” He then goes on to show what have been the results of the self-supporting system:—

“The net profits realized from the labour of the convicts actually employed in handicrafts, after deducting the cost of production, were, in round numbers, as follows:—

	£		£
1855–56	11,019	1864–65	32,988
’56–57	12,300	’65–66	35,543
’57–58	10,841	’66	14,287
’59–60	14,065	’67	41,168
’60–61	23,124	’68	56,817
’61–62	54,542	’69	46,588
’62–63	30,604	’70	45,274
’63–64	54,542

In all, nearly half a million of money. In 1866, the accounts were made up for only eight months, to introduce the calendar in place of the official year, which ended on the 30th of April.

“If the limits of time and space permitted, I could show you in minute detail that each skilled prisoner employed in handicrafts, striking the average of all the jails, earned considerably more than he cost; that five of the prisons under my charge were at various times self-supporting, and that one of them, the great industrial prison at Alipore, a suburb of Calcutta, has repaid very considerably more than its cost, for the last ten years continuously.”

As Dr. Mouat held the position of Inspector-General of Gaols in Lower Bengal for 15 years, and as, during that period, he had under his control an average of 20,000 prisoners, it may, I think, be held that his experiences have been tolerably extensive, and that a system justified by such experiences is worthy of adoption. Unfortunately, however, men pooh-pooh those experiences which do not accord with their foregone conclusions.

I have occasionally vented the paradox that mankind go {191} right only when they have tried all possible ways of going wrong: intending it to be taken with some qualification. Of late, however, I have observed that in some respects this paradox falls short of the truth. Sundry instances have shown me that even when mankind have at length stumbled into the right course, they often deliberately return to the wrong.