prisoners who are tried for different crimes, in the various Courts of
Justice, above 5-6th parts are for larcenies, acts of vagrancy, and
smaller offences; where the Benefit of Clergy, either attaches, or
does not apply at all. The major part are, of course, returned upon
Society, after a short imprisonment, or some corporal punishment, too
frequently to renew their depredations on the public.--But a vast
proportion (as has already been shewn) are always acquitted.[132]
[Footnote 132: All endeavours towards the prevention of crimes will
ever be attended with unconquerable difficulty, until some general
House of Industry can be established in the Metropolis: where persons
discharged for petty offences, as well as strangers and others out of
work, may have an opportunity of finding, at least a temporary
employment, sufficient to maintain them. An Institution of this sort
would be a work of great charity and humanity; and it is earnestly to
be hoped, that the view of the subject given in this Work may induce
the Legislature to form a Police Establishment, calculated to promote
such a multitude of good and useful objects;[E] more especially as
with proper management it would very soon pay itself.]
[Footnote E: Vide _page_ 99 _n._]
In order to form a judgment of the proportion of the more atrocious
offenders tried at the Old Bailey: the number acquitted; and the
specific punishments inflicted on the different offences in case of
conviction, one year has been selected; a year in which it was natural
to expect from the immense, and indeed, unparalleled bounties which
were given for seamen and soldiers, that the number of thieves and
criminals would be greatly reduced,--namely--_from the month of
April_, 1793, _to the month of April_, 1794,--including eight Sessions
at the Old Bailey--
The following Table shews in what manner 1060 prisoners, put on their
trials during that period, were disposed of.[133]
[Footnote 133: In the year 1795, 1894 prisoners were tried at the Old
Bailey, and the different Assizes in the Country, exclusive of a much
greater number at the General and Quarter Sessions of the Peace, in
the different Counties. These trials in the Superior Courts of
Judicature, produced the following results:--
Assizes
London. in the Total.
Country.
Received Sentence of Death 44 174 218
" " " Transportation 84 159 243
Imprisoned and Whipt 129 411 540
Judgment respited to serve
his Majesty 23 25 48
Acquitted 150 351 501
Discharged for want of
Prosecutors 91 253 344
--- ---- ----
521 1373 1894]
The Crimes for which the different Offenders were tried, were these
following:
Murder 46 Felony 315 Manslaughter 29
Arson 5 Larceny 998 Bigamy 3
Burglary 101 Receiving Beastiality 2
Robbery 58 stolen Goods 61 Rape 9
Horse and Cattle Frauds and Perjury 2
stealing 108 Misdemeanors 101 Sedition 2
Forgery 16 Rogues and ---
Coining 17 Vagabonds 21 47
--- ---- ---
351 1496
--- ----
_A_ TABLE, _shewing the Prisoners tried at the Old Bailey, from April
1793, to March 1794, inclusive._
-------------+------------------------------------------------------
|Persons committed for trial.
| |Of whom, acquitted and discharged.
| | |Prisoners convicted, and their Punishments.
| | |Death.
| | | |Transported for 14 years.
London, | | | | |Transported for 7 years.
Middlesex, | | | | | |Whipt & Imprisoned.
and | | | | | | |Imprisoned 6 months and
Westminster. | | | | | | |upwards.
| | | | | | | |Imprisoned 3 months
| | | | | | | |& otherwise disposed of.
| | | | | | | | |Sent to serve
| | | | | | | | |the King.
| | | | | | | | | |Judgment
| | | | | | | | | |respited
| | | | | | | | | | |Total
| | | | | | | | | | |punished.
-------------+----+-----+--+-+---+--+--+--+--+--+-------------------
London | | | | | | | | | | |
Sessions | 199| 70| 6|1| 50|10|29|20| 8| 5|129
| | | | | | | | | | |
Middlesex and| | | | | | | | | | |
Westminster | 861| 497|62|1|117|38|51|49|30|16|364
+----+-----+--+-+---+--+--+--+--+--+-------------------
|1060| 567|68|2|167|48|80|69|38|21|493
| |[134]| | | | | | | | |
-------------+----+-----+--+-+---+--+--+--+--+--+-------------------
[Footnote 134: The acquittals will generally be found to attach mostly
to small offences which are punishable with death: where Juries do not
consider the crime deserving so severe a punishment, the delinquent
receives no punishment at all. If all were convicted who were really
guilty of these small offences, the number of victims to the severity
of the Law would be greatly increased.]
Thus it appears, that in London only, of 1060 prisoners, tried in the
course of a year, only 493 were punished; of whom 197, after a
temporary confinement, would return upon the Public, with little
prospect of being better disposed to be useful to Society, than
before.--It may be estimated that in all England, including those
offenders who are tried at the County Sessions, upwards of five
thousand individuals, charged with criminal offences, are thrown back
upon Society every year.--
But this is not all,--for according to the present System, out of
about _two hundred_ and upwards who are, upon an average every year,
doomed to suffer the punishment of death, _four-fifths_ or more are
generally pardoned[135] either on condition of being transported, or
of going into His Majesty's service, and not seldom without any
condition at all.
[Footnote 135: As punishments became more mild, clemency and pardons
became less necessary.--Clemency is a virtue that ought to shine in
the code, and not in the private judgment.--The Prince in pardoning
gives up the Public Security in favour of an individual; and by the
exercise of this species of benevolence proclaims a public act of
impunity.--Let the Executors of the Laws be inexorable; but let the
Legislature be tender, indulgent and humane.
BECCARIA, cap. 46.]
Hence it is, that, calculating on all the different chances,
encouragements to commit crimes actually arise out of the System
intended for their prevention:--_first, from the hope of avoiding
detection and apprehension;--secondly, of escaping conviction, from
the means used to vitiate and suborn the evidence;--thirdly, from the
mercy of the Jury, in considering the punishment too severe;--and
fourthly, from the interest of persons of rank or consideration,
applying (under circumstances where humanity becomes the friend of
every person doomed to die), for the interference of Royal Mercy, by
Pardons_.
God forbid that the Author of these pages should do so much violence
to his own feelings, as to convey an idea hostile to the extension of
that amiable Prerogative vested in the Sovereign; and which His
Majesty has exercised with a benevolent regard to the feelings of
Humanity, and a merciful disposition truly characteristic of the mind
of a great and good King.
These animadversions are by no means pointed against the exercise of a
privilege so benign, and even so necessary, in the present state of
the Criminal Law;--they regard only the impositions which have been
practised upon so many well-intentioned, respectable, and amiable
Characters, who have, from motives of humanity, interested themselves
in obtaining _free pardons for Convicts_, or _pardons on condition of
going into the Army or Navy_.
If these humane individuals, who exert themselves in applications of
this sort, were to be made acquainted with one half of the gross
impositions practised upon their credulity, or the evil consequences
arising to Society from such pardons, (particularly unconditional
pardons) they would shudder at the extent of the cruelty exercised
towards the Public, and even, in many instances, to the Convicts
themselves, by this false humanity.
In a Country, where, from the great caution which mingles in that part
of the Criminal Jurisprudence which relates to the trial of
Offenders,--it is scarcely possible that an honest or an innocent
person can be convicted of a capital offence.[136]--It would seem to
be a good criterion, that the Royal Mercy should only be extended on
two indispensable conditions.
[Footnote 136: It is not here meant to say there have not been some
instances, and even one of a recent date, where an innocent man may be
convicted; but they are certainly very rare, and when discovered, the
Royal mercy, of course, relieves the unfortunate person.]
1. _That the Convict under sentence of death should, for the
sake of Public Justice, (and to deter others from the
commission of crimes) discover all his accomplices, and the
robberies, or other crimes he has committed._
2. _That he should be transported; or make retribution to
the parties he has injured by being kept at hard labour for
life; or until ample security shall be given for good
behaviour after such retribution is made._
The precaution not having been used of knowing _for certain_, before
pardons were granted, whether the parties were fit for His Majesty's
service or not; the Convicts themselves carefully concealing every
kind of bodily infirmity;--and the pardons containing no eventual
condition of ultimate Transportation, in case the persons should be
found unfit for the Army or Navy;--the result has been, that many
Convicts, who have been since actually Thieves upon the Town, were
almost instantly thrown back upon the Public.--Some, even before they
were attested by the Magistrate, in consequence of the discovery of
bodily incapacity; and others, in a very short time after they had
gone into His Majesty's Service, from the like unfitness being
discovered; from some artful device practised to procure a
discharge--or from desertion.--A professed Thief is never deficient in
that species of artifice and resource which is necessary to rid him of
any incumbrance.
This, however, is seldom taken into the calculation when Humanity
urges philanthropic Characters to interest themselves in behalf of
Criminals; nor could it perhaps otherwise have been known, or
believed, that so many of these outcasts of Society have found means
again to mingle with the mass of the people.
What impression must these facts make on the intelligent mind!--will
they not warrant the following conclusion?
1. That every individual, restored to Society in this way,
is the means of affording a species of encouragement,
peculiarly calculated to bring others into the same dreadful
situation, from which the unhappy Convict is thus rescued.
2. That for this reason every pardon granted, without some
lesser punishment, or removing the convicts from Society, is
a link broken in the chain of justice, by annihilating that
united strength which binds the whole together.
3. That by removing the terror of punishments by frequent
pardons, the design of the Law is rendered in a great
measure ineffectual; the lives of persons _executed_ are
thrown away, being sacrificed rather to the vengeance of the
Law than to the good of the Public; and no other advantage
is received than by getting rid of one thief, whose place,
(under present circumstances,) will speedily be supplied by
another.[137]
[Footnote 137: That able and excellent Magistrate, the late Henry
Fielding, Esq. (to whose zeal and exertions in the exercise of the
duties of a Justice of the Peace, in the Metropolis, the Public were
under infinite obligations)--manifested, half a century ago, how much
he was impressed with the injuries arising from frequent
pardons.--Those who will contemplate the character and conduct of this
valuable man, as well as that of his brother, the late Sir John
Fielding, will sincerely lament that their excellent ideas, and
accurate and extensive knowledge upon every subject connected with the
Police of the Metropolis, and of the means of preventing crimes, were
not rendered more useful to the Public. It is to be hoped, however,
that it is not yet too late, since the state of Society, and the
progress and increase of crimes, call loudly for the establishment of
a responsible preventive System.]
Nothing can sanction the punishment of death for crimes short of
murder, _but the terror of the example operating as the means of
prevention_.--It is upon this principle alone that one man is
sacrificed to the preservation of thousands.--Executions, therefore,
being exhibited as seldom as a regard to the public interest really
required, ought to be rendered as _terrific_ and _solemn_ to the eyes
of the people as possible.
The punishment now in use, considered in point of law to be next to
that of deprivation of life, is _Transportation_.
It has been already mentioned that Parliament authorized this species
of punishment in the year 1718--when the general plan of sending
Convicts to the American Plantations was first adopted. This System
continued for 56 years; during which period, and until the
commencement of the American War in 1775, great numbers of Felons were
sent chiefly to the Province of Maryland. The rigid discipline which
the colonial Laws authorized the masters[138] to exercise over
servants, joined to the prospects which agricultural pursuits, after
some experience was acquired, afforded to these _Outcasts_, tended to
reform the chief part; and after the expiration of their servitude,
they mingled in the Society of the Country, under circumstances highly
beneficial to themselves and even to the Colony. Possessed in general
(as every adroit thief must be) of good natural abilities, they
availed themselves of the habits of industry they acquired in the
years of their servitude--became farmers and planters on their own
account; and many of them, succeeding in these pursuits, not only
acquired that degree of respectability which is attached to property
and industry; but also in their turn became masters, and purchased
the servitude of future Transports sent out for sale.[139]
[Footnote 138: By the Acts 4 George I. c. 11, and 6 George I. c. 23,
the persons contracting for the transportation of convicts to the
Colonies, or their assigns, had an interest in the service of each,
for seven or fourteen years, according to the term of transportation.]
[Footnote 139: For some years previous to the commencement of the
American War, the adjudged services of convicts became so valuable in
Maryland, that contracts were made to convey them without any expence
whatsoever to Government, who had formerly allowed 5_l._ a head; for
the reasons already assigned, they generally were more adroit, and had
better abilities than those who voluntarily engaged themselves to go
to America.]
The Convicts having accumulated greatly in the year 1776, and the
intercourse with America being shut up, it became indispensably
necessary to resort to some other expedient; and in the choice of
difficulties the System of the _Hulks_ was suggested, and first
adopted under the authority of an Act of the 16th of his present
Majesty.
The Legislature, uncertain with regard to the success of this new
species of punishment, and wishing to make other experiments, by an
Act of the same Session,[140] empowered the Justices of every county
in England to prepare Houses of Correction for the reception of
Convicts under sentence of death, to whom his Majesty should extend
his Royal Mercy, to be kept at hard labour for a term not exceeding
ten years.
[Footnote 140: 16 George III. cap. 43, sect. 1st, 3d, and 11th.]
The same Act, among many other excellent regulations, ordered the
Convicts to be kept separate, and not allowed to mix with any
offenders convicted of crimes less than Larceny--and that they should
be fed with coarse inferior food, water, and small beer, without
permission to have any other food, drink, or cloathing, than that
allowed by the Act, under certain penalties:--they were to be clothed
at the public expence.
And as an encouragement to these delinquents, while such as refused to
work were to receive corporal punishment, those who behaved well had
not only the prospect held out of shortening the period of their
confinement, but also were to receive decent clothes, and a sum of
money not less than _forty shillings_, nor more than _five pounds_,
when discharged.
This well-intentioned Act[141] (which certainly admits of many
improvements), was followed up, three years afterwards, by another
Statute, (19 Geo. III. cap. 74,) which had two very important objects
in view.
[Footnote 141: An enormous expence has been incurred in building
Penitentiary-Houses in various Counties, and many philanthropic
individuals have exerted their best endeavours to carry this Act into
execution; but it is to be lamented, that crimes have been by no means
diminished. The fact is, that the System is erroneous--Responsibility
is no where established.--No uniformity of System prevails, and no
general superintendance or center point exists.--Like the Poor Laws,
the only part of the Act which is rigidly carried into execution is
raising a fund, which, without imputing blame to Magistrates (for the
error is in the System), has increased the expence of this branch of
the Police of the Country very far beyond what could have been
conceived--and it now becomes a heavy burden upon many of the
Counties.--The reform began at the wrong end.--The same expence
applied in establishing a System of Preventive Police, ought to render
numerous penitentiary houses in a great measure unnecessary.]
The first was to erect, in some convenient common or waste ground, in
either of the counties of _Middlesex_, _Essex_, _Kent_, or _Surry_,
_Two large Penitentiary Houses_, the one to hold 600 _male_, and the
other 300 _female Convicts_, with proper _storehouses_, _workhouses_,
and _lodging-rooms_; an _infirmary_, _chapel_, and _burying-ground_; a
_prison_, _kitchen_, _garden_, and _air-grounds_: with proper
_offices_, and other _necessary apartments_.
The expence of these grounds and erections was to be paid out of the
treasury; and his Majesty was empowered to appoint three persons as a
Committee of Management for regulating the Establishment; under the
controul of the Justices of the Peace of the County, and Judges of
Assize, with power to appoint a _clerk_, _governor_, _chaplain_,
_surgeon_, or _apothecary_, _store-keepers_, and _task-masters_; and
also a _matron_ for the females;--and to allow salaries to each, which
were to be paid out of the profits of the work, to be performed by the
Convicts.
As soon as the buildings should be completed, the Court, before whom
any person was convicted for a transportable offence, might, in lieu
thereof, order the prisoner to be punished by confinement, in any of
these Penitentiary Houses, there to be kept to hard labour in the
proportion of 5 _years_ instead of 7 _years' transportation_, and not
exceeding 7 years in lieu of 14 _years' transportation_; limiting at
the same time the number of Convicts to be sent annually from the
Circuits in the Country, and from the different Sessions in the
Metropolis.
This Act lays down various specific rules for the government of the
Establishment, and for the employment of the Prisoners; and the
following works, as being of the most servile kind and least liable to
be spoiled by ignorance, neglect, or obstinacy, are selected, namely--
1. Treading in a wheel for moving machinery.
2. Drawing in a capstan, for turning a mill or engine.
3. Sawing stone
4. Polishing marble
5. Beating hemp
6. Rasping logwood
7. Chopping rags
8. Making cordage
9. Picking oakum
10. Weaving sacks
11. Knitting nets,
&c. &c.
The food of the different offenders, as in the former Act, was limited
to bread and any coarse meat, with water and small beer; and the
Prisoners were to be cloathed in uniform apparel, with badges affixed,
agreeable to the Institution.
Certain other rules were established for the discipline of the house,
under the direction of the Committee to be appointed by his Majesty;
who were to attend every fortnight, and to have power to reward such
offenders as should appear most diligent and meritorious, by giving
them a part of their earnings, to be applied for the use of themselves
end families.
And when an offender should be discharged, decent clothing was to be
delivered to him; with a sum of money for present subsistence, not
less than _twenty shillings_, nor more than _three pounds_.
The second purpose of this Act (and which is the only part of it which
was ever carried into effect), regards _the continuation of the System
of the Hulks_.
It declares that for the more effectual punishment of atrocious male
offenders liable to be transported, the Court may order such Convicts
as are of proper age, and free from bodily infirmity, to be punished
by being kept on board ships or vessels; and employed in hard labour
in raising sand, soil, and gravel, and cleansing the River Thames, or
any other river, or port, approved by the Privy Council; or in any
other works upon the banks or shores of the same, under the direction
of superintendants approved of by the Justices, for a term not less
than _one_ year, nor more than _five_; except an offender be liable to
transportation for 14 years, in which case his punishment may be
commuted for 7 years on board the Hulks.
The mode of feeding is the same as already explained, and the clothing
is to be at the discretion of the superintendant. A similar
discipline, varied only by local circumstances, is also established;
and on the discharge of any of the convicts, they are to receive for
present subsistence from 20_s._ to 3_l._ according to circumstances.
The concluding part of the Act obliges the governors and
superintendants of the two Establishments to make annual returns to
the Court of King's Bench: and also authorizes his Majesty _to appoint
an Inspector of the two Penitentiary Houses, of the several vessels or
hulks on the River Thames, and of all the other gaols and places of
criminal confinement within the City of London and County of
Middlesex_; these Inspectors are personally to visit every such place
of confinement at least once a quarter, to examine into the
particulars of each, and to make a return to the Court of King's
Bench, of the _state of the buildings--the conduct of the
officers--treatment of the prisoners--state of their earnings and
expences_--and to follow up this by a report to both Houses of
Parliament, at the beginning of each Session.
It is much to be lamented that neither of these two salutary Acts, so
far as regarded _National Penitentiary Houses_, which seemed to hold
out so fair a prospect of employing convicts, in pursuits connected
with _productive labour_, _industry_, and ultimate _reformation_,
without sending them out of the kingdom, have been carried into
execution. In the year 1784, the System of Transportation was again
revived, by the Act of the 24th Geo. III. Stat. 2. cap. 56; "which
empowers the Court, before whom a male Felon shall be convicted, to
order the prisoner to be transported beyond seas, either within his
Majesty's dominions or elsewhere; and his service to be assigned to
the contractor who shall undertake such transportation."
The same Act continues the System of the Hulks for a further length of
time; by directing the removal of Convicts, under sentence of death,
and reprieved by his Majesty, and also such as are under sentence of
Transportation (being free from infectious disorders) to other places
of confinement, either inland, or on board of any ship or vessel in
the river Thames, or any other navigable river; and to continue them
so confined until transported according to law, or until the
expiration of the term of the sentence should otherwise entitle them
to their liberty.
This plan of Transportation, through the medium of contractors,
although some Felons were sent to Africa,[142] does not appear to have
answered; from the great difficulty of finding any situation, since
the Revolution in America, where the service of Convicts could be
rendered productive or profitable to Merchants, who would undertake to
transport them; and hence arose the idea of making an Establishment
for these outcasts of Society in the infant colony of New South
Wales, to which remote region it was at length determined to transport
atrocious offenders.--Accordingly, in the year 1787, an Act passed,
(27 Geo. III. cap. 2,) authorizing the establishment of a Court of
Judicature for the trial of offenders who should be transported to New
South Wales.
[Footnote 142:
In 1785, George Moore, Esq. received for
transporting convicts L.1,512 7 6
John Kirby for expences 540 19 4
1786, John Kirby; further expences 578 10 1
Anthony Calvert for Transportation 286 14 0