SENTENCES.
There is no part of a Judge's duty which is more important or
more difficult than apportioning the punishment to the particular
circumstances of a conviction. As an illustration of this statement I
would take the offence of bigamy, where in the one case the convicted
person would deserve a severe sentence of imprisonment, while in
another case he or she might be set at liberty without any punishment
at all. Such cases have occurred before me.
The sentence of another Judge upon another prisoner ought not to be
followed, for each prisoner should be punished for nothing but the
particular crime which he has committed. For this reason the case of
each individual should be considered by itself.
I dislike, also, the practice of passing a severe sentence for a
trifling offence merely because it has been a common habit in other
places or of other persons. For instance I have known five years of
penal servitude imposed for stealing from outside a shop on a second
conviction, when one month would have been more than enough on a first
conviction, and two or three months on a second conviction. For
small offences like these the penalty should always be the same
in character--I mean not excessive imprisonment, and never penal
servitude. As often as a man steals let him be sent to prison, and it
may be for each offence the time of imprisonment should be somewhat
slightly increased, but not the character of the punishment.
Years ago, in my Session days, I remember a poor and, I am afraid,
dishonest client of mine being _transported for life_ (on a second
conviction for larceny) for stealing _a donkey_; but I doubt if that
could happen nowadays. It seems incredible.
Nobody who has carefully noted the innumerable phases of crime which
our criminal courts have continually to deal with, and the infinite
shades of guilt attached to each of those crimes, will fail to come
to the conclusion that one might as well attempt to allocate to its
fitting place each grain of sand, exposed to the currents of a desert
and all other disturbing influences, as endeavour by any scheme or
fixed rule to determine what is the fitting sentence to be endured for
every crime which a person can be proved, under any circumstances, to
have committed.
The course I adopted in practice was this. My first care was never to
pass any sentence inconsistent with any other sentence passed under
similar circumstances for another though similar offence. Then I
proceeded to fix in my own mind what ought to be the outside sentence
that should be awarded for that particular offence had it stood
alone; and from that I deducted every circumstance of mitigation,
provocation, etc., the balance representing the sentence I finally
awarded, confining it purely to the actual guilt of the prisoner.
I have noticed that burglaries with violence are rarely committed
by one man alone, and that when two or more men are concerned in a
murder, one or more of them being afraid that some one, in the hope of
saving himself from the treachery of others, is anxious to shift the
whole guilt of the robbery, with its accompanying violence, on to the
shoulders of his comrades. It is well that this should be so, and that
such dangerous criminals should distrust with fear and hatred their
equally guilty associates.
Except for special peremptory reasons, I never passed sentence until I
had reconsidered the case and informed my own mind, to the best of
my ability, as to what was the true magnitude and character of the
offence I was called upon to punish.
The effect of such deliberation was that I often mitigated the
punishment I had intended to inflict, and when I had proposed my
sentence I do not remember ever feeling that I had acted excessively
or done injustice. I am now quite certain that no sentence can be
properly awarded unless after such consideration. I speak, of course,
only of serious crimes.
It has more than once happened that even after all the evidence in the
case was before the jury, as was supposed, I have discovered that an
accused man, in _mitigation of sentence_, has pleaded that which would
have been a _perfect defence to the charge made against him_! One
of these instances was very remarkable. It happened at some country
racecourse.
A man was charged with robbing another who was in custody in charge
of the police for "welshing." The prisoner had undoubtedly, while the
prosecutor, as I will call him, was in custody, and being led along
the course, rushed up to him, after jumping the barriers, and put
his hand in his coat-pocket, pulling out his pocket-book and other
articles. He then made off, but was pursued by the police and
arrested. He was indicted for the robbery, and the facts were
undisputed.
There was no defence set up, and I was about to ask the jury for their
opinion on the case, which certainly had a very extraordinary aspect.
Suddenly the prisoner blurted out, as excusing himself,--
"Well, sir, _he asked me to take the things_. I was a stranger to him,
and the mob was turning his pockets inside out and ill-treating him
for welshing."
I immediately asked the prosecutor, "Is that true?" and he answered,
"Yes." The prisoner said, "I only did it to protect his things for
him."
Of course I instantly stopped the case and directed an acquittal.
I then gave both parties a little advice. To the prosecutor (the
welsher) I said, "Don't go welshing any more;" and to the prisoner,
"If you ever again see a welsher in distress, don't help him."
I should like to say one word more. It should not be supposed that
a man, when sentenced, is altogether bad because he uses insulting
language to the Judge. He may not be utterly bad and past all hope of
redemption on that account.
The want of even an approach to uniformity in criminal sentences is
no doubt a very serious matter, and is due, not to any defect in
the criminal law (much as I think that might be improved in many
respects), but is owing to the great diversity of opinion, and
therefore of action, which not unnaturally exists among criminal
Judges, from the highest to the humblest, numbering, as they do,
at least 5,000 personages, including Judges of the High Courts,
commissioners, recorders, police magistrates, and justices of the
peace.
When one considers the conditions under which the criminal law is
administered in England, and remembers that no fixed principles upon
which punishments should be awarded have been authoritatively laid
down, and that the law has stated only a maximum (but happily at the
present time not a minimum), and each Judge is left practically at
liberty to exercise his own unfettered discretion so long as he
confines himself within the limit so prescribed, it is no matter for
wonder that so great a diversity of punishment should follow so great
a variety of opinion.
Even in the most accurate and useful books of practice to which all
look for guidance and assistance during every stage of the criminal
proceedings, down to the conviction of the offender, no serious
attempt has been made to deal, even in the most general way, with the
mode in which the appropriate sentence should be arrived at.
The result of this state of things is extremely unsatisfactory, and
the most glaring irregularities, diversity, and variety of sentences
are daily brought to our notice, the same offence committed under
similar circumstances being visited by one Judge with a long term of
penal servitude, by another with simple imprisonment, with nothing
appreciable to account for the difference.
In one or the other of these sentences discretion must have been
erroneously exercised. I have seen such diversity even between Judges
of profound learning in the law who might not unreasonably, _primâ
facie_, be pointed to as safe examples to be followed; and so they
were, so far as regarded their legal utterances. Experience, however,
has told us that the profoundest lawyers are not always the best
administrators of the criminal law.
Practically there are now no criminal offences which can be visited
with the penalty of death. Treason and murder still remain. For the
latter offence the Judge is _bound to pronounce sentence of death_,
which is imperatively fixed and ordained by Act of Parliament, and any
other sentence would be illegal.
There are certain principles which I consider ought never to be lost
sight of.
In the first place, it must be remembered that for mere immorality,
not made criminal by the common or statute law of the land, no
punishment can be legally inflicted, and, in my opinion, no crime
ought to be visited with a heavier punishment merely because it is
also against the laws of God.
Take, for example, the crime of unlawfully knowing a girl under
the age of sixteen years, even with consent. Assume that with her
invitation the man committed himself. Go further, and establish the
sin of incest. The latter sin ought to be _totally ignored_ in dealing
with the _statutory_ offence.
I must not, however, be understood as intending my observations to
apply to cases where the immorality is in itself an _element_ of the
crime. My view is that the rule ought to apply only in cases where
the immorality is only a sin against God, and is severable from the
_crime_ committed against the laws of the land.
The case I have suggested is an illustration of what I mean.
Secondly, a sentence ought never to be so severe as to create in the
mind of reasonable persons, having knowledge of the circumstances, a
sympathy with the criminal, for that tends to bring the administration
of the law into discredit, and while giving a Judge credit for having
acted with the strictest sense of justice, it might give rise to a
suspicion of his fitness and qualifications for the administration of
the criminal law--a state of things which ought to be avoided.
The same observations apply, but not with equal force, to sentences
which may to reasonable persons acquainted with all the circumstances
appear to be ridiculously light, for it is more consistent with our
laws to err on the side of mercy than on the side of severity.
The object of criminal sentences is to compel the observance by all
persons, high and low, rich and poor, of those public rights and
privileges, both as regards the persons and property common to all
their fellow-subjects, the infringement of which is made criminal.
For the infringement of other rights of a private character the law
has provided civil remedies with which we are not at this moment
concerned.
Punishments, then, should be administered only as a necessary sequence
to the breach of a _criminal_ law, with the object of deterring the
offender from repeating his offence.
Of necessity it operates to some extent as a warning to others; but
that is not its primary object, for no punishment ought to exceed in
severity that which is due to the particular offence to which it is
applied. To add to a sentence for a very venial offence for which
a nominal punishment ought to suffice an extra fine or term of
imprisonment by way of example or warning to others would be
unreasonable and unjust. Vengeance, or the infliction of unnecessary
pain, especially for the sake of others, should never form part of a
criminal sentence.
Reformation of the criminal by and during his imprisonment should
be one chief object of his punishment, but a just sentence for the
offence is not to be prolonged either for education or reformation,
unless expressly sanctioned by law, as in the case of reformatories.
With regard to crimes of violence, it sometimes happens that long
periods of restraint and imprisonment are imperative--where, for
instance, the criminal is persistent in his threats, or has made
it evident by his actions or words that on his liberation from
imprisonment for criminal violence he intends to resume his criminal
course, and will do so unless restrained.
Take, for instance, the case of a persistent burglar, the great
majority of whose robberies are committed under circumstances
calculated to create terror and alarm, and upon whom imprisonment,
however long, has no restraining effect after his liberation. Take the
confirmed highway robber, who to secure his booty does not scruple to
use deadly violence upon his victim. It is rare that one short term
of imprisonment, or the fear of another, induces him to abandon his
criminal course. In such cases it is essential for the protection
of the public that he should no longer be at liberty to pursue his
dangerous and alarming course of life. For him, therefore, a much
longer term of restraint is necessary than in the case of mere
pilferers, whose thefts, although causing loss and vexation, are not
productive of personal injury.
Lastly, I am strongly averse from abolishing the sentence of death in
cases of deliberate murder. Even when the crime is committed under the
influence of jealousy, I should take little pains to save the life
of one who had cruelly and deliberately murdered another for the
gratification of revenge or the purpose of robbery.
In the case of poor creatures who make away with their illegitimate
offspring in the agony of their trouble and shame, there were, in
my experience, almost always to be found very strong reasons for
commutation, even to very limited periods of imprisonment.