Such was the character of the legislation, which at the commencement of the present century, was thought good enough for paupers. If a man had the misfortune to be poor, he was liable to be confined for an indefinite period at the instance of parochial officers responsible to no one he was liable to see his children forcibly removed from him, and sent to places which were for all practical purposes as distant as the West Indies; to know that they would, on their arrival at their destination, be as much at the mercy of their masters as a negro slave; and that they would grow up without instruction, without advice, without assistance from any

one.

CHAP.

II.

and the

The hardship and the injustice, which such a system Criminals inflicted on the poor, is not capable of exaggeration. Penal But it is very doubtful whether the poor themselves Code. suffered more severely from it than the rich. When a pauper was treated as a criminal, crime seemed no greater offence than poverty; and a poor man, with nothing but a workhouse and a prison to choose between, might think the prison the preferable evil of the two. During the latter years of the war, crime increased with a rapidity, which ought to have startled legislators into adopting some new measures for preventing it. In 1805, 4,605 persons were committed for trial; 2,783 were convicted; 350 of these were sentenced to death, and 68 were executed. In 1810, 5,146 persons were committed for trial; 3,158 were convicted; 476 were sentenced to death, and 67 were executed. In 1815, 7,818 persons were committed for trial; 4,883 were convicted; 553 persons were sentenced to death, and 57 were executed.1 In ten years, then, the committals rose from 4,605 to 7,818; the covnictions from 2,783 to 4,883; the sentences to death from 350 to 553; while the executions

1 Porter's Progress of the Nation, p. 642.

II.

CHAP, decreased from 68 to 57.' Deplorable as was the increase of crime during the war to which these figures pointed, its growth was much more lamentable after the conclusion of peace. Four years afterwards, or in 1819, 14,254 persons were committed for trial; 9,510 were convicted; 1,314 were sentenced to death, and 108 were executed. The first thing which must strike every reflecting mind on seeing these figures, is the extraordinary increase in the amount of crime; the second, the utter uncertainty of detecting it. Out of every 100 persons who were committed to trial, 33 had a reasonable prospect of acquittal; out of every hundred were sentenced to death, 92 were not executed.

persons who

The uncertainty, which undoubtedly encouraged the growth of crime, arose from a very natural and a very pardonable notion. The legislature had the folly to imagine that the best way of repressing crime was to give the suspected criminal no chance, and to punish the convict with the utmost severity. At the time at which this history commences, the counsel of a man charged with felony was not allowed to address the jury in the prisoner's defence; 2 and the commonest offences were, at that time, felonies. The least influential member of Parliament had sufficient power to have any offence made a capital felony, without benefit of clergy. In 1815 it was a capital offence to steal goods to the value of 5s. in a shop. It was a capital offence to steal 40s. from a dwelling

1 These fifty-seven suffered for the following crimes:-Murder and intent to murder, sixteen; burglary, ten; forgery, eleven; robbery from the person, seven; rape, seven; sheep stealing, three; arson, one; horse stealing, one; unnatural offence, one. See Metropolitan Police Report, 1828, p. 286.

2 Arnould's Denman, vol. i. pp. 225, 243, 250; Hansard, N. S. vol. xi. p. 219.

3 All felonies, except sacrilege and

horse stealing, were up to 1827 felonies with benefit of clergy, provided the same were not expressly excepted by statu te. But, as in practice they always were excepted, the law was a mere mockery. Felons were only entitled once to benefit of clergy, which was, practically, very similar to the first fault with which many public school boys are familiar. Hansard, vol. xvii. p. 936; Kerr's Blackstone, vol. iv. p. 95.

house. It was a capital offence to break frames. It was
made a capital offence in 1816 to destroy machines. It
was a capital offence to steal a horse or sheep. Up to
1808 it had been a capital offence to pick a man's pocket.
Up to 1812 it had been a capital offence for soldiers and
mariners to beg. It was seriously proposed in 1813 to
punish the fraudulent debtor with death. There are no
less than 200 felonies,' said Mackintosh in 1819, 'punish-
able with death.' Burke once told Mackintosh that, al-
though from his political career he was not entitled to
ask any favour of the ministry, he was persuaded he had
interest enough at any time to obtain their assent to a
felony without benefit of clergy. So easy was it for any
one to obtain an addition to the long category of capital
felonies. It became in fact necessary to distinguish the
higher class of offences with an even greater punishment
than death. The ordinary felon, who was hanged, was
entitled to be buried. The murderer's body was devoted
to anatomy.1 These severe laws had the natural effect.
Informers prosecuted for the sake of the reward which
followed the conviction; but ordinary persons hesitated
to prosecute an offence which might be punished with
death. James Platt, a Manchester police constable, ac-
knowledged, on the Peterloo trial, that he had been in
the habit of inveigling persons into the uttering of forged
notes for the purpose of convicting them; and that he
had succeeded in hanging one man in this way. Our
murderous laws,' wrote Wilberforce,3 prevent prosecu-
tions and often harden convicts' hearts.' 'John Bull,'
wrote Hazlitt, 'boasts of the excellence of the laws, and
the goodness of his disposition; and yet there are more
people hanged in England than in all Europe besides.' 4
The severity of the penal
couragement to the criminal.

1 Colchester, vol. i. p. 41.
2 Ann. Reg. vol. lxii. p. 860.
VOL. I.

code acted as a direct en-
Juries declined to convict

3 Wilberforce, vol. iv. p. 370.
4 The Round Table, p. 126.

CHAP.

II.

СНАР.
II.

an unfortunate individual of a trifling offence, when con-
viction might entail the loss of the offender's life; and
prisoners were consequently acquitted, not because they
were innocent, but because the punishment assignable to
the offence was, in the opinion of the country, too severe.
A jury, moreover, could never be certain that the judge
would not form a much harsher opinion of the case than
that with which they themselves were disposed to regard
it. Lord Eldon used to defend the retention of a capital
punishment for minor crimes because it enabled the
judges to rid the world of offenders whom they fancied
hardened. A man was indicted for stealing a horse of
the small value of seven shillings and sixpence, and which
he had sold for that sum to a horse-butcher. The jury
found him guilty,' and Lord Eldon allowed him to be
hanged; not because he thought the single offence de-
served so severe a punishment, but because the man had
in his possession skeleton keys of all the turnpike gates
near London. In other words, a circumstance, which
the jury had not investigated, and for which the prisoner
had not been tried, cost the man his life.1

Reasons of this character induced Parliament to refuse to listen to every plea for moderation, and to treat with contempt every proposal for the reform of the penal code. 'We have our professors of humanity like Robespierre,' wrote the Quarterly Review,' in 1816,2 who propose the abolition of capital punishment.' When it was desired to make transportation for life the punishment of stealing five shillings in a shop, the twelve judges stepped down from their pedestals, and through Lord Ellenborough, then Chief Justice of England, favoured the House of Lords, for the first time, with an unasked opinion, not of law, but of legislation, protesting against any abridgment of their powers of life and death.' 3

1 Twiss' Eldon, vol. ii. p. 121.

2 Quarterly Review of July 1816, p. 574, quoted in Arnould's Denman,
vol. i. p. 253.
Denman, vol. i. p. 253, and vol. ii. p. 320,

6

СНАР.

sons.

II.

Humane people, in and out of Parliament, were constantly protesting againgst the severity of the code which the peers and the judges were resolutely bent on maintaining. But humane people might almost have been excused for doubting whether death was not a kinder punishment than the alternative which could be substituted for it. The felon, who was not hanged, was either transported or condemned to hard labour. Transportation was regarded with very different feelings by different classes of convicts. To a woman transportation meant ruin. During the voyage the female convicts notoriously lived in shameless intercourse with the sailors. Nine out of every ten, after their arrival in New South Wales, supported themselves by prostitution.' Unmarried men, on the contrary, welcomed the sentence. The generality of those Convict who are transported,' said Mr. Cotton, the ordinary at and PriNewgate, consider it as a party of pleasure, or going out to see the world; they evince no penitence or contrition, but seem to rejoice in the thing; many of them court transportation.' 2 The prisoners, added a constant visitor to the same prison, rejoice in the prospect of transportation, and it is with the greatest difficulty in the world that that spirit can be restrained. When they go off they are shouting and rejoicing as though some great achievement had been performed.' It was stated in the House of Commons in 1816 that there were hundreds of candidates for transportation to Botany Bay on the hulks. Married men, indeed, regarded the punishment with different feelings; and the despair which they displayed at their separation from their families, proved that they were not wholly destitute of the best of feelings. Men and even women were known to commit crimes in the hope that they might be sent to follow their husbands

2

'Hansard, vol. xxxix. pp. 1435, 1439.

Report Metropolitan Police, 1818, p. 171. 3 Ibid. p. 178.

↑ Hansard, vol. xxxiii. p. 988.