[Footnote B: 106 transported]
_Number of Prisoners discharged by the Magistrates, and from the Eight
Gaols, in One Year._
+-----------+-------------------------------------------------
|Names of |Discharged by Magistrates for want of Proof
|Prisons | |Discharged by Proclamation and Gaol Delivery
| | | |Discharged by Acquitals [Transcriber's Note: Acquittals]
| | | | |Discharged after being whipt
| | | | | |Discharged after being fined
| | | | | | |Discharged after suffering
| | | | | | |imprisonment
| | | | | | | |Apprentices discharged
| | | | | | | | |Offenders bailed out
| | | | | | | | |of Prison
| | | | | | | | | |Discharged
| | | | | | | | | |by Pardon
| | | | | | | | | | |Total
| | | | | | | | | | |discharged
+-----------+----+---+---+--+--+---+---+---+---+--------------
+-- | | | | | | | | | |
|Newgate | |134|272|12|11| 20| | |129| 578
| | | | | | | | | | |
L|Poultry | | | | | | | | | |
O|Compter | 199| | | | | | | 27| | 226
N| | | | | | | | | | |
D|Giltspur | | | | | | | | | |
O|Compter | 287| 10| 10| |45| 11| |114| | 477
N| | | | | | | | | | |
|Bridewell | | | | | | | | | |
|Hospital | | | | | |249| 38| | | 287
+-- | | | | | | | | | |
+-- | | | | | | | | | |
| | | | | | | | | | |
|New Prison | | | | | | | | | |
M|Clerkenwell| 237|170| 35| 9| | | 9| |127| 587
I| | | | | | | | | | |
D|House of | | | | | | | | | |
D|Correction | | | | | | | | | |
L|in Cold | | | | | | | | | |
E|Bath | | | | | | | | | |
S|Fields | 568|231| 60| | |353|111| | |1323
E| | | | | | | | | | |
X|Tothil- | | | | | | | | | |
|Fields | | | | | | | | | |
|Bridewell | 253|274| 6| 1| | 27| |154| | 715
| | | | | | | | | | |
+-- | | | | | | | | | |
+-- | | | | | | | | | |
S| | | | | | | | | | |
U| | | | | | | | | | |
R|New Goal, | | | | | | | | | |
R|Southwark | 130| 74| 35| 2| | 28| | | | 269
Y| | | | | | | | | | |
+-- | | | | | | | | | |
| +----+---+---+--+--+---+---+---+---+--------------
| |1674|893|418|24|56|697|149|422|129|4462
| +----+---+---+--+--+---+---+---+---+--------------
N.B. Although the Author has been at infinite pains to
render this Summary as exact as possible, yet from the
different modes adopted in keeping the accounts of Prisons,
he is not thoroughly satisfied in his own mind that the View
he has here given is accurate, to a point.--He is, however,
convinced that it will be found sufficiently so for the
purpose.
[To face page 430.]
It would not only remove that aversion which Prosecutors manifest on
many occasions, to come forward, for the purpose of promoting the ends
of public justice; but it would prevent, in a great measure, the
possibility of compounding felonies, or of suborning witnesses.[125]
[Footnote 125: Notwithstanding the severity of the Law, the
composition of felonies and misdemeanors is carried to a much greater
height than it is almost possible to believe; and various artifices
are resorted to, to elude the penalties.--An instance occurred in
August 1792; where a Jew was ordered to take his trial for a rape,
committed on a married woman.--The offence appeared, on examination,
to be extremely aggravated.--The Grand Jury however did not find a
bill; which was thought a very singular circumstance, as the proof had
been so clear before the Magistrate. The reasons were afterwards
sufficiently explained; which show, what corrupt practices, artifices,
and frauds will be used to defeat the ends of justice:--In consequence
of a previous undertaking between the Jew and the husband of the woman
who had been so grossly abused, a sum of L.20 was left in the hands of
a publican, which the prosecutor was to receive if the bill was not
found. In this confidence the woman gave a different evidence from
that which she had given before the Magistrate. The Jew, however,
cheated both the husband and the wife; for he no sooner discovered
that he was safe, than he demanded the money of the publican and
laughed at the prosecutor.]
It would also be the means of counteracting the various tricks and
devices of old thieves; and occasion an equal measure of Justice to be
dealt out to them, as to the novices in crimes:--It would do more,--It
would protect real innocence,--for in such cases the Public Prosecutor
would never fail to act as the friend of the prisoner.
The prevailing practice in criminal trials, in the true spirit of
mildness and humanity, induces the Judge to act in some degree as
counsel for the prisoner.--Without a Prosecutor for the Crown,
therefore, every trifling inaccuracy in the indictment is allowed to
become a fatal obstacle to conviction;[126] circumstances which would
frequently throw great light upon the charges, are not brought under
the review of the jury, and thus public justice is defeated.
[Footnote 126: In criminal cases, a defective indictment is not aided
by the verdict of a Jury, as defective pleadings are in civil cases.
Indeed wherever life is concerned, great strictness has been at all
times observed. That able and humane Judge, SIR MATTHEW HALE,
complained above a century ago,[C] "_That this strictness has grown to
be a blemish and inconvenience in the law and the administration
thereof; for that more offenders escape by the over-easy ear given to
exceptions in indictments, than by their own innocence: and many times
gross murders, burglaries, robberies, and other heinous and crying
offences remain unpunished, by those unseemly niceties; to the
reproach of the Law, to the shame of the Government, to the
encouragement of villainy, and to the dishonour of God_."[D]]
[Footnote C: He died 1676.]
[Footnote D: Hale, P.C. 193.]
Upon an average, the Magistrates of the Metropolis commit annually,
(out of many times that number who are equally objects of punishment,)
from about 2500 to 3000 persons, male and female, for trial, at the
seven different Courts of Justice in and near the Metropolis; charged
with a variety of felonies, misdemeanors, and other petty offences.
But after fully convincing their own minds, from a careful, and in
many instances, a most laborious investigation, that the parties are
guilty, they are obliged, from experience, to prepare themselves for
the mortification of seeing their labour and exertions in a great
measure lost to the Community: the major part of these criminals being
returned upon Society, without any effectual steps adopted for their
reformation, or any means used for the prevention of a repetition of
their crimes. A considerable proportion of this wretched number may
have suffered perhaps a slight punishment for their demerits; but
which produces no effect that is not ultimately mischievous to the
Community; since it serves merely to initiate them, in a greater
degree, in the knowledge and means of committing new acts of fraud and
villainy.
To establish a System calculated to prevent criminals from returning
to their evil practices after punishment is the very essence of good
Police; but notwithstanding its importance to the Community, no
measures have ever yet been adopted, calculated to attain so desirable
an object.--It is however ardently to be hoped, that the period is
fast approaching, when this great desideratum will be in a certain
degree obtained; and that the suggestions offered in the subsequent
Chapters, may tend to accelerate the renovation of this forlorn and
miserable class of outcasts, by means of an appropriate _Penitentiary
System_.
CHAP. XVI.
_On Punishments.--The mode authorized by the ancient
laws.--The period when Transportation commenced.--The
principal crimes enumerated which are punishable by
Death.--Those punishable by Transportation and
Imprisonment.--The courts appointed to try different degrees
of crimes.--Capital punishments, extending to so many
offences of an inferior nature, defeat the ends of
justice.--The system of Pardons examined:--their evil
tendency.--New regulations suggested with regard to Pardons
and Executions.--An historical account of the rise and
progress of Transportation.--The expedients resorted to,
after the American War put a stop to that mode of
punishment.--The System of the Hulks then adopted.--Salutary
Laws also made for the erection of Provincial and National
Penitentiary Houses.--The nature and principle of these Laws
briefly explained.--An account of the Convicts confined in
the Hulks for twenty-two years.--The enormous expence of
maintenance and inadequate produce of their labour.--The
impolicy of the system exposed by the Committee on
Finance.--The system of Transportation to New South Wales
examined.--Great expence of this mode of
punishment.--Improvements suggested, calculated to reduce
the expence in future.--Erection of one or more National
Penitentiary Houses recommended.--A general view of the
County Penitentiary Houses and Prisons:--their inefficacy
in reforming Convicts.--The labour obtained uncertain, while
the expence is enormous.--The National Penitentiary House
(according to the proposal of Jeremy Bentham, Esq.)
considered.--Its peculiar advantages over all others which
have been suggested, with respect to health, productive
labour, and reformation of Convicts.--General reflections on
the means of rendering imprisonment useful in reforming
Convicts.--Concluding observations._
Imperfect in many respects as the criminal Law appears, from what has
been detailed and stated in the preceding Chapters, and much as the
great increase of capital offences, created during the last and
present Century, is to be lamented:--it cannot be denied that several
changes have taken place in the progress of Society, favourable to the
cause of humanity, and more consonant to reason and justice, in the
appropriation and the mode of inflicting punishments.
The Benefit of Clergy, which for a long period exempted clerical
people only, from the punishment of death in cases of felony, was by
several statutes[127] extended to _peers_, _women_, and all persons
_able to read_; who, pleading their Clergy, suffered only a corporal
punishment, or a year's imprisonment; and those men who _could not
read_, if under the degree of peerage, were hanged.[128]
[Footnote 127: 1 Edward VI. cap. 12: 21 Jac. I. cap. 6: 3 and 4
William and Mary, cap. 9: 4 and 5 William and Mary, cap. 24.]
[Footnote 128: Blackstone.]
This unaccountable distinction was actually not removed until the 5th
of Queen Anne, cap. 6, which extended the benefit of clergy to all who
were intitled to ask it, _whether they could read or not_.[129]
[Footnote 129: The benefit of Clergy originated in injustice and
inhumanity, and can only be palliated by the rude state of society,
when so disgraceful a privilege was legalized and interwoven in the
criminal code.--It partakes of the nature of a compromise with
villainy.--It perplexes the system of criminal jurisprudence; and
since its sting is taken away it would be an improvement to
discontinue it totally.]
In the course of the present century, several of the old sanguinary
modes of punishment have been either, very properly, abolished by acts
of parliament, or allowed, to the honour of humanity, to fall into
disuse:--such as _burning alive (particularly women) cutting off hands
or ears, slitting nostrils, or branding in the hand or face_; and
among lesser punishments, fallen into disuse, may be mentioned _the
ducking-stool_.
The punishment of death for felony (as has already been observed) has
existed since the reign of Henry I. nearly 700 years.--Transportation
is commonly understood to have been first introduced, anno 1718, by
the act of the 4th George I. cap. 11; and afterwards enlarged by the
Act 6th of George I. c. 23, which allowed the court a discretionary
power to order felons who were by law entitled to their clergy, to be
transported to the American plantations for seven or fourteen years,
according to circumstances.[130]
[Footnote 130: It is said that exile was first introduced as a
punishment by the Legislature in the 39th year of Queen Elizabeth,
when a statute (39 _Eliz._ _c._ 4.) enacted that such rogues as were
dangerous to the inferior people should be banished the realm, _Barr.
Ant. Stat._ 269: and that the first statute in which the word
Transportation is used is the 18th of _Charles_ II. _c._ 3. which
gives power to Judges at their discretion either to execute or
transport to America _for life_ the Moss-Troopers of _Cumberland_ and
_Northumberland_; a law which was made perpetual by the Act 31 _Geo._
II. _c._ 42. 2 WOODD. 498.]
Since that period the mode of punishment has undergone several other
alterations; and many Crimes which were formerly considered of an
inferior rank, have been rendered capital: which will be best
elucidated by the following Catalogue of Offences, divided into six
classes according to the Laws now in force.
* * * * *
1. CRIMES _punishable by the_ Deprivation of Life; _and
where, upon the Conviction of the Offenders the sentence of
Death must be pronounced by the Judge.--Of these, it has
been stated, the whole, on the authority of Sir William
Blackstone, including all the various shades of the same
offence, is about 160 in number._
_The principal are the following:_
Treason, and Petty Treason; _See page_ 38, &c. Under the
former of these is included the Offence of Counterfeiting
the Gold and Silver Coin, _See page_ 191-211.
Murder, _See page_ 44, &c.
Arson, or wilfully and maliciously burning a House, Barns
with Corn, &c. _See page_ 56.
Rape, or the forcible violation of chastity, &c. _See page_
46.
Stealing an Heiress, _See page_ 48.
Sodomy, a crime against nature, committed either with man or
beast, _See page_ 46.
Piracy, or robbing ships and vessels at sea: under which is
included, the Offences of sailors forcibly hindering their
captains from fighting, _See page_ 55, 56.
Forgery of Deeds, Bonds, Bills, Notes, Public Securities,
&c. &c. Clerks of the Bank embezzling Notes, altering
Dividend Warrants: Paper Makers, unauthorised, using moulds
for Notes, &c.
Destroying Ships, or setting them on Fire, _See page_ 57.
Bankrupts not surrendering, or concealing their Effects
Burglary, or House Breaking in the night time, _See page_
57.
Highway Robbery
House Breaking in the day time, _See page_ 54, 55.
Privately Stealing or Picking Pockets above one Shilling
Shop Lifting above Five Shillings, _See page_ 55.
Stealing Bonds, Bills, or Bank Notes
Stealing Bank Notes, or Bills from Letters
Stealing above 40_s._ in any House, _See page_ 55.
Stealing above 40_s._ on a River
Stealing Linen, &c. from Bleaching Grounds, &c. or
destroying Linen therein
Maiming or Killing Cattle maliciously. _See_ the Black Act,
9 Geo. I. cap. 22.
Stealing Horses, Cattle or Sheep
Shooting at a Revenue Officer; or at any other person, _See_
the Black Act
Pulling down Houses, Churches, &c.
Breaking down the head of a Fish-Pond, whereby Fish may be
lost, (_Black Act_)[131]
[Footnote 131: The unwillingness which it must be expected a
Jury would have to convict a man capitally for _this
offence_, might be adduced among many other instances, to
show to what extent public justice is defeated, merely from
the severity of the laws, and the want of a Scale of
punishments proportioned to the offences.]
Cutting down Trees in an Avenue, Garden, &c.
Cutting down River or Sea Banks.
Cutting Hop Binds
Setting fire to coal mines
Taking a Reward for helping another to Stolen Goods, in
certain cases, _See page_ 295
Returning from Transportation; or being at large in the
Kingdom after Sentence
Stabbing a Person unarmed, or not having a weapon drawn, if
he die in six months
Concealing the death of a Bastard Child
Maliciously maiming or disfiguring any person, &c. lying in
wait for the purpose, _See page_ 50.
Sending Threatening Letters (Black Act)
Riots by twelve or more, and not dispersing in an hour after
proclamation
Being accessaries to Felonies deemed capital
Stealing Woollen Cloth from Tenter Grounds
Stealing from a Ship in Distress
Government Stores, embezzling, burning or destroying in
Dock-Yards; in certain cases, _See pages_ 261-263
Challenging Jurors above 20 in capital felonies; or standing
mute
Cottons selling with forged Stamps
Deer-Stealing, second offence; or even first offence, under
Black Act, not usually enforced
Uttering counterfeit Money, third offence
Prisoners under Insolvent Acts guilty of perjury
Destroying Silk or Velvet in the loom; or the Tools for
manufacturing thereof; or destroying Woollen Goods, Racks or
Tools, or entering a House for that purpose
Servants purloining their Masters' Goods, value 40_s._
Personating Bail; or acknowledging fines or judgments in
another's name
Escape by breaking Prison, in certain cases
Attempting to kill Privy Counsellors, &c.
Sacrilege
Smuggling by persons armed; or assembling armed for that
purpose
Robbery of the Mail
Destroying Turnpikes or Bridges, Gates, Weighing Engines,
Locks, Sluices, Engines for Draining Marshes, &c.
Mutiny, Desertion, &c. by the Martial and Statute Law
Soldiers or Sailors enlisting into Foreign Service
* * * * *
2. CRIMES _denominated_ Single Felonies; _punishable by
Transportation, Whipping, Imprisonment, the Pillory, and
Hard Labour in Houses of Correction, according to the Nature
of the offence._
_The principal of which are the following:_
Grand Larceny, which comprehends every species of Theft
above the value of One Shilling, not otherwise distinguished
Receiving or buying Stolen Goods, Jewels and Plate. _See
page_ 299
Ripping and stealing Lead, Iron, Copper, &c. or buying or
receiving, _See page_ 295
Stealing (or receiving when stolen) Ore from Black Lead
Mines
Stealing from Furnished Lodgings
Setting fire to Underwood
Stealing Letters, or destroying a Letter or Packet,
advancing the Postage, and secreting the Money
Embezzling Naval Stores, in certain cases, _See pages_
261-263
Petty Larcenies, or Thefts under one Shilling
Assaulting with an intent to Rob
Aliens returning after being ordered out of the kingdom
Stealing Fish from a Pond or River--Fishing in inclosed
Ponds, and buying stolen Fish
Stealing Roots, Trees, or Plants, of the value of 5_s._ or
destroying them
Stealing Children with their apparel
Bigamy, or Marrying more Wives or Husbands than one (now
punishable with transportation)
Assaulting and Cutting, or Burning Clothes
Counterfeiting the Copper Coin, &c.--_See page_ 191-211
Marriage, solemnizing clandestinely
Manslaughter, or killing another without Malice, &c. _See
page_ 44
Cutting or Stealing Timber Trees, &c. &c. &c.
Stealing a Shroud out of a Grave
Watermen carrying too many passengers in the Thames, if any
drowned
* * * * *
3. OFFENCES _denominated_ Misdemeanors, _punishable by Fine,
Imprisonment, Whipping, and the Pillory._
_The principal of which are the following:_
Perjury, or taking a false Oath in a judicial proceeding,
&c.
Frauds, by Cheating, Swindling contrary to the rules of
common honesty, &c. &c.
Conspiracies, for the purpose of injuring or defrauding
others
Assaults by striking or beating another person, &c.
Stealing Dead Bodies
Stealing Cabbages, Turnips, &c. growing
Cutting and stealing Wood and Trees
Robbing Orchards and Gardens
Stealing Deer from Forests
Stealing Dogs
Setting fire to a House to defraud the Insurance Office
Making and selling Fire-Works and Squibs
Throwing the same when on fire about the streets
Uttering Base Money
Selling Base Money under its denominated value
Embezzlement in the Woollen, Silk, and other Manufactures
Offences by Artificers and Servants in various Trades
Combinations and Conspiracies for raising the price of
Wages, &c. (_See stat._ 39 _Geo._ III. _c._ 81)
Smuggling Run Goods, and other Frauds relative to the Excise
and Customs
Keeping Bawdy Houses and other Disorderly Houses
* * * * *
4. IDLE and Disorderly Persons _described by the Act of the
17th Geo. II. cap. 5. and subsequent Acts_; punishable with
one Month's Imprisonment--_namely_,
1. Persons threatening to run away and leave their wives and
children on the Parish
2. Persons who tipple in Ale Houses, and neglect their
Families, &c. as described in the 3d Geo. III. cap. 45
3. Persons who shall unlawfully return to the Parish or
place from which they have been legally removed, without
bringing a Certificate
4. Persons, who not having wherewithal to maintain
themselves, live idly without employment, and refuse to work
for the usual Wages
5. Persons begging in the streets, highways, &c.
* * * * *
5th. ROGUES and VAGABONDS _described by the said Act of the
17th Geo. II. cap. 5. and subsequent Acts_; punishable by
Six Months' Imprisonment--namely,
1. Persons going about as Patent Gatherers or Gatherers of
Alms, under pretence of Loss by Fire, or other casualty.
2. Fencers, Bearwards, Strolling Players of Interludes, or
other Entertainments
3. Minstrels, (except those licensed by the Lord Dutton in
Cheshire)
4. Persons pretending to be, and wandering in the habit of,
Gypseys
5. Fortune-Tellers, pretending Skill in Physiognomy,
Palmistry, &c. or using any subtle craft to deceive and
impose on others
6. Persons playing or betting at any unlawful Games or Plays
7. Persons who run away, and leave their Wives and Children
upon the Parish
8. Petty Chapmen and Pedlars wandering abroad without a
Licence
9. Persons wandering abroad, and lodging in Ale-Houses,
Out-Houses, or the open Air, and not giving a good account
of themselves
10. Persons wandering abroad, and pretending to be Soldiers
or Sailors, without proper Certificates from their Officers,
or Testimonials from Magistrates
11. Persons wandering abroad, pretending to go to work in
Harvest, without a proper Certificate from the Parish
12. Persons having Implements of House-breaking or Offensive
Weapons, with a Felonious intent
13. Persons concerned in illegal Lottery Transactions, as
described in the Lottery Acts, 27th, 33d, 34th, and 35th
Geo. III.
* * * * *
6th. INCORRIGIBLE ROGUES, _punishable with Two Years'
Imprisonment and Whipping, or Transportation for Seven
Years, if they break out of Prison--namely_,
1. Persons stiled End-Gatherers, buying, collecting, or
receiving Ends of Yarn in the Woollen Branch, against the
stat. 13 Geo. I. cap. 23.
2. Persons, who being Rogues and Vagabonds, have escaped
after being apprehended, or who shall refuse to be examined
by a Magistrate, or who shall give a false account of
themselves after being warned of their punishment
3. Persons who shall escape out of any House of Correction
before the period of their imprisonment empires
4. Persons, who being once punished as Rogues and Vagabonds,
shall again commit the same offence.
[-->] _There are a great many other trivial Offences
denominated Misdemeanors, subject to pecuniary Fines, which
it is not easy to enumerate. Since almost every statute,
whether public or private, which passes in the course of a
Session of Parliament, creates new offences--the shades vary
as Society advances, and their number is scarcely within the
reach of calculation._
The crimes mentioned in the first and second classes of the foregoing
Enumeration (except Petty Larceny) are always tried by the Superior
Courts:--The offences specified in the third class, as also Petty
Larceny, and every species of misdemeanor and vagrancy, are generally
tried, (with some few exceptions) by the Justices in their General and
Quarter Sessions, where, in certain cases in Middlesex, they act under
a commission of Oyer and Terminer. The Magistrates in Petty Sessions,
and in several instances a _single Magistrate_, have also the power of
convicting in a summary way, for a variety of small misdemeanors, and
acts of vagrancy: and of punishing the delinquents with fine and
imprisonment.