Chapter I (13)

[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.

It generally happens in the Metropolis, that out of from 2000 to 2500 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

Thomas Cotton, Esq. Cloathing,
&c. 303 2 7
------------
L.3,721 13 6[F]]

[Footnote F: See Appendix (L. i.) to the 28th Report of Select Committee on Finance.]

Another Act of the following year, (28 Geo. III. cap. 24,) empowered his Majesty, under his Royal Sign Manual, to authorize any person to make contracts for the Transportation of offenders, and to direct to whom security should be given for the due performance of the contract.

By the Act of 30 George III. cap. 47, the Governor of the Settlement may remit the punishment of offenders there: and on a certificate from him their names shall be inserted in the next General Pardon.

Under these various legislative regulations, the two Systems of Punishment, namely, the _Hulks_ and _Transportation_ to New South Wales, have been authorized and carried into execution.

The System of the Hulks commenced on the 12th day of July, in the year 1776; and from that time until the 12th of December 1795, comprehending a period of nineteen years, 7999 Convicts were ordered to be punished by hard labour on the river Thames, and Langston and Portsmouth harbours, which are accounted for in the following manner:

1. Convicts ordered to hard labour on the
River Thames, from 12th July 1776, to the
12th January, 1778 2024

2. Convicts, _under sentence of Transportation_,
put on board the Hulks on the River Thames,
from 11th January, 1783, to 12th December,
1795 4775

3. _Deduct_, under sentence of Transportation,
put on board the Hulks in Langston and
Portsmouth Harbours, received from the
Hulks at Woolwich, on the 20th of June,
1791 466
---- 4309

Additional Convicts sent from different prisons
to Portsmouth and Langston from 1791,
to 1st December, 1795 1200

To which, add those from Woolwich as above 466
---- 1666
----
Total 7999
Of the above convicts there have been
Discharged 1610
Pardoned 790
Escaped 130
---- 2530
Removed to other Gaols 17
Transported to New South Wales 2207
Died[143] 1946
----
6700

And there remain in the Hulks on the
Thames 523

And at Langston Harbour 776
---- 1299
Total as above 7999

[Footnote 143: A malignant fever, at one period, carried off a vast number, in spite of every effort to prevent it.]

By a subsequent account laid before the Select Committee of the House of Commons on Finance, and stated in Appendix, M. of their 28th Report, dated the 26th of June, 1798, it appears that the number of Convicts stood thus:

In the Hulks on the Thames, at Woolwich 501
At Portsmouth 948
----
Total 1449

Besides 415 under Sentence of Transportation in the
different Gaols, making in all 1864.

From the same authentic Documents, (pages 115, 116,) it appears, that of these Convicts, the following numbers will be discharged upon Society in the succeeding 13 years:[144]

Portsmouth. Woolwich.
In 1800 140 115
1801 106 43
1802 127 26
1803 107 46
1804 149 77
1805 33 3
1806 1 1
1807 1 1
1808 1 1
1809 1 0
1810 1 0
1811 10 4
1812 1 0
--- 678 --- 317
For life 76 22

[Footnote 144: See page 98 of this volume, for an Account of the Convicts enlarged the preceding eight years,

in all 1383
To be discharged as above 995
----
Total 2378]

RECAPITULATION.

Convicts discharged from the Hulks, from 1792 to
1799 inclusive (_See page 98 of this Treatise_) 1383

To be discharged from the Hulks at Langston chiefly
in 6 years 678

From Woolwich, chiefly within the same period 317
----
Total 2378

In the same authentic Documents, namely the Appendix (L. 1 & 2) page 103 of the 28th Report of the Select Committee on Finance, a Statement is given of the Expence which has been incurred by Government, "for or in respect of the Conviction, Confinement, and Maintenance of Convicts, from the 1st January, 1775, to the year ending the 31st December, 1797," of which the following is an abstract:

1 Jan. 1775 to 1 Jan. 1776 paid at the Exchequer L.8,660 0 0
-- 1776 -- 1777 -- 7,950 16 10
-- 1777 -- 1778 -- 13,676 14 5
-- 1778 -- 1779 -- 17,939 18 0
-- 1779 -- 1780 -- 22,292 11 1-1/2
-- 1780 -- 1781 -- 21,034 0 1-1/2
-- 1781 -- 1782 -- 18,686 19 0
-- 1782 -- 1783 -- 22,320 10 9
-- 1783 -- 1784 -- 17,669 3 11
-- 1784 -- 1785 -- 31,555 18 11
-- 1785 -- 1786 -- 32,343 17 7
-- to 7 March 1786 -- 9,353 17 0

To 31 December 1786 22,282 18 4
1787 33,927 9 7
1788 34,059 14 8
1789 62,656 15 5
1790 46,865 4 6
1791 43,840 9 0
1792 22,300 12 7
1793 25,403 16 0
1794 25,751 3 7-1/2
1795 14,195 7 4-1/2
1796 36,174 7 9
1797 } { 19,506 15 11
1797 } { 12,574 0 0
---------------
Total Expence of Convicts in the }
Hulks, from the Commencement } L.623,022 14 5
of the System to 1 January 1798 }

The Contractors for the Convicts at Woolwich and Langston Harbour, (as appear from documents laid before the House of Commons) entered into an agreement with the Lords of the Treasury obliging themselves for _the consideration of 1s. 3d. per day_, (being 22_l._ 16_s._ 3_d._ a year _for each Convict_,) to provide at their own cost or charge, _one_ or more _Hulks_, to keep the same in proper repair, to provide proper Ship's Companies for the safe Custody of such Convicts; and sufficient _meat_, _drink_, _clothing_ and _medical assistance_, for the Convicts; as also to sustain all other charges (excepting the expence of the _Chaplain_, _Coroner_, and bounties to discharged Convicts;[145]) obeying, at the same time, all the orders of his Majesty's Principal Secretary of State for the Home Department, respecting the Convicts. A subsequent contract was made at 14-1/2_d._ which reduced the expence to 22_l._ 1_s._ 0-1/2_d._ per man: and which is the allowance made to the present Contractors.

[Footnote 145: This expence, by an account laid before the House of Commons, for one Year, ending the 15th Feb. 1792, appears to be--

Expence of Chaplain, Coroner, and Bounties
for Convicts at Woolwich L.221 17 4

At Langston and Portsmouth Harbours 153 19 8
---------
Total L.375 17 0]

The terms of these contracts appear to be as favourable for Government as could reasonably be expected, under all circumstances; and it would appear, that some advantages are reaped by the Public, as the documents laid before the House of Commons in 1792 and 1798, shew that the labour performed by the Convicts is productive in a certain degree.--The following Statements explain how their labour is valued:--

From the 1st of January 1789 to the 1st of
January 1792, it appears that 653,432 days'
work had been performed at Langston Harbour,
Portsmouth, and Woolwich Warren;
which being estimated at 9_d._ a day, is L.24,503 14 0

and

From the 1st of January 1789 to the 1st of January
1792, it also appears that 260,440
days' work had been performed at the
Dock yard at Woolwich; which being
partly performed by artificers in a more
productive species of labour, is estimated
at 1_s._ a day 13,022 0 0
-------------
Total value of Convicts' labour in 3 years L.37,525 14 0

It appears from the 28th Report of the Select Committee on Finance, Appendix, No. 7 and 8--

That the work done by Convicts confined on
board the Hulks in Langston Harbour,
during the year 1797, was performed by
about 421 convicts upon a daily average,
and computing the labour of each artificer
at 19_l._ 8_s._ 9_d._ per annum, and each
labourer at 11_l._ 13_s._ 3_d._ it will
amount to L.5,997 18 3

The work performed in the same year by
about 250 convicts, confined on board the
Hulks at Portsmouth, computed as above
will amount to 3,226 15 0
--------------
9,224 13 3

From which is to be deducted, to make the
amount correspond with the valuation
made by the Ordnance Board 1,440 5 3
--------------
L.7,784 8 0

The work done by convicts, confined on board
the _Prudentia_ and _Stanislaus_ Hulks at
Woolwich Dock-yards and Warren, performed
by 359 convicts, rated at 1_s._ and
1_s._ 2_d._ for labourers, and 1_s._ 5_d._
per day for artificers, is calculated to
amount to 6,578 4 7
---------------
L.14,362 12 7

Deduct allowances made, and articles supplied,
by the Board of Ordnance 1,498 14 10-1/2
-------------------
Total Estimate of the value of the labour of
Convicts in 1797 L.12,863 17 8-1/2
-------------------

Upon this last statement the Select Committee on Finance (whose various elaborate Reports on the State of the Nation, do them immortal honour as Patriots and Legislators) very justly observe, that it is extremely difficult to calculate the value of labour, performed under such circumstances, with any degree of accuracy; and after several views of the subject a conclusion is drawn, that the net expence to the Public, for the maintenance of 1402 convicts in 1797, after deducting the estimated value of labour, amounted to 20,878_l._ 14_s._ 10-1/2_d._ being at the rate of 14_l._ 17_s._ 9-1/2_d._ per man.

It appears, however, that out of the whole number of 1402 maintained in 1797, only 1030 were actually employed. The labour of the remaining 370 was, therefore, in a great measure, lost to the Community.

At any rate, the value of this species of labour must be precarious, and the advantages resulting from it problematical.

Since the mere "possession of so many idle hands will sometimes be a temptation to engage in works, which but for this inducement, would not recommend themselves by their intrinsic utility."[146]

[Footnote 146: See 28th Report of Finance Committee, page 17.]

While it is admitted, that considerable improvements have been made with regard to the reduction of the expence; that provision has also been made for religious and moral instruction, by established salaries to chaplains;--and that the contractors have honourably performed their part of the undertaking; it is much to be lamented, that this experiment has not been attended with more beneficial consequences to the Public; not only in rendering the labour of the convicts productive in a greater degree, so as at least to be equal to the expence; but also in amending the morals of these miserable out-casts; so that on their return to Society, they might, in some respect, atone for the errors of their former lives, by a course of honest industry, useful to themselves and to their country. On the contrary, experience has shewn, that although an expence exceeding 623,000_l._ has been incurred by Government in the course of 22 years, most of them, instead of profitting by the punishment they have suffered (forgetting they were under sentence of death, and undismayed by the dangers they have escaped) immediately rush into the same course of depredation and warfare upon the public: nay, so hardened and determined in this respect have some of them been, as even to make proposals to their old friends, the Receivers, previous to the period of their discharge, to purchase their newly acquired plunder. It has already been shewn, that those few also, who are less depraved, and perhaps disposed to amend their conduct, can find no resource for labour; and are thus, too frequently, compelled, by dire necessity, to herd with their former associates in iniquity, and it is much to be feared, that the chief part of the multitudes, who have been periodically discharged, have either suffered for new offences, or are actually at present afflicting Society by reiterated depredations.[147]

[Footnote 147: See the Examination of the Author before the Select Committee of the House of Commons.]