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unwritten law-what the Common law is we learn by inference from the decisions of the courts as they fluctuate upon particular cases. The decisions, with the proceedings leading to them, are published by individuals under the name of REPORTS. These voluminous acts, and still more voluminous reports, compose a boundless field for uncertainty and contention, and any thing but a clear and distinct guide to the people, "whose lives and fortunes are subject to them."
A great part of this mischief arises from the practice of making successive acts of parliament on one subject, the latter acts being to amend preceding acts, without repealing such preceding acts; whence it is very common to find contradictory laws on the same subject, and to hear the courts occupied in weighing authorities, principles, and analogies, to find out, or guess, which ought to prevail.
The ponderous, obsolete, and intricate verbage of these acts it is difficult to assign satisfactory reasons for, but much of it necessarily arises from the preambles, forms, explanations, and provisions to each, being set forth in, each separately, instead of such general provisions and forms being laid down as fundamental definitions and general rules, common to all, and therefore unnecessary to be inserted in each separate act of parliament.
The inconsistency in the distribution of penalties, and impunity among offences of similar hues, but under different circumstances, is very remarkable. For instance-If a man, from a shop, warehouse, or stable, privately steal any goods of the value of 5s., the penalty is death; but he may break into a garden, even in the night time, and privately steal flowers to a much greater value, free from any penalty. If a man steal a dog, two justices are to fine him from 201. to 50l. or imprison him from 12 to 18 months, and to cause him to be publicly whipped, within the three days following their conviction. Against such conviction 'he may appeal to the justices in quarter session, but not until after fourteen days, i. e. not till the whipping at least is over. If the dog is stolen by a servant to whom it has been entrusted, he is subject to no penalty. If a man is guilty of moving his ashes (his own property) from one of his houses or shops to another, he is subject to a fine of 10/. for every basket-full he moves; but if a man gains admission into the house of another, as tenant, and steals therefrom the doors, sashes, and fixtures, he is subject to no penalty. If a distressed man, to raise four or five shillings, tells
Since this paragraph was written, two acts of parliament have mended the contrasted errors.
another a falsehood, he is liable to transportation; but if a man of consequence by similar means cheats another of as many thousand pounds, it may be deemed no offence.! If a man gives his neighbours warning, that a thief or swindler is coming amongst them, he is liable to the penalties of fine and imprisonment as a libeller, and it is an aggravation of his offence if the information be strictly true; but a gentleman at the bar, or in the House of Commons, may, in open court, publish to the world the most groundless aspersions against respectable persons with impunity.
But it is in the disposition of the punishment of death, that the common sense and feelings of society are chiefly offended. So strangely apportioned is the penalty in many cases, that prosecutors shrink from their task, and allow offenders to escape with impunity. Witnesses in pious perjuries speak not the truth, and juries find false verdicts to save lives which the law declares forfeit, but which their honest judgments tell them it would be injustice and cruelty to take away.
The penalties of the law are also in some instances as equivocally executed, as they are unwisely apportioned. Punishments are very frequently executed or forborne, not according to the law and its judgments, as declared in court, but according to the views of some invisible persons out of it.
We also see that an unaided novice sentenced to prison suffers the austerities of the prison, where there are any austerities left; but a practised convict, who has not entered the prison empty handed, or who has the support of accomplices from without, may feast upon luxuries, enjoy good clothing and lodging, and see his friends daily.
In considering the instruments of punishment as now adminis tered, we cannot fail to be struck with the effect of the new lights which have been shed on prison discipline during the last twenty or thirty years.
During these years prisons, from being dreary and miserable abodes, have become spacious, commodious, and agreeable; the offensive term prison has been mollified into the milder
'At the Insolvent Debtors' Court at the Westminster Sessions-house, on October 14th, 1818, Colonel Gould's discharge was opposed, on the ground of his having obtained 1000l. upon the false pretence of securing it on money belonging to him in the funds, he having no money in the funds. The objection, however, was rejected, upon an assumed rule of law, that due diligence had not been used by the sufferer to discover the truth; and the CoJonel was set at liberty. Four days after, in the same building, the author was present, when a man was charged with borrowing 4s. upon a pretence of wanting it to give change to a customer in a neighbouring street, which pretence was afterwards found to be false. In this case, the rule of law before assumed went for nought, and the man was transported.
names, House of Correction, Penitentiary, &c.; the tender feelings of the humane have been under a continual state of excitement, to improve the unpleasantness of imprisonment, and the hard earnings of the honest and industrious have been drained to supply the means of rendering punishment comfortable During these years, also, the alarming increase of crimes has been a subject of continual lamentation with the public. The coincidence is not an accidental one, it is evidently that of cause and effect. That a houseless, naked, and starving man should be tempted to relieve his wants by acts of dishonesty, when, if detected and convicted, the penalty is good lodging, good bedding, warm clothing, excellent food, cheerful society, the daily visits of friends, the condolence and tender treatment of superiors, and light work, or no work at all, is only what might be expected. Instances are frequent in which the accused candidly say, that they were starving and "committed the theft to get into the House of Correction."
The matter of surprise is, when we view the wretchedness in which so many hard-working men and their families drag on existence, that a regard for good character, and a love of independence, should induce them still to continue honest, and work their emaciated frames to the very bones, while such excellent fare waits upon their choice if they will only condescend to be dishonest. The wonder, however, is rapidly evaporating; much as the face of the country is altered by the immense buildings going forward, for the better accommodation of criminals, they do not expand equally with the demand for places. In districts where a little old prison was seldom half occupied, extensive buildings under the new system are found to be always full, and in want of additions, while candidates for admission infest our streets and prefer their claims upon our persons and our property in swarms, and at noon day. That the motives of the leaders of the new system have been good ones, is not questioned, but that their endeavours are useful to the public, or to the objects of their solicitude, is wholly denied. Where shall we discover one good result from their expensive projects? While gratifying the tenderness of their hearts by rendering the criminal comfortable, they have hoped to render him also religious, honest, industrious. Vain attempt! convicts may be taught a demure air, and to make hypocritical professions of sorrow and amendment: a spurious artificial religion may also be infused into some of them, as much at least as will encourage them in the idea that through faith they may avoid future punishment for their
crimes. Some, we have accordingly found, go to their vocation of thieving, with religious tracts in one pocket and instruments of death in another. Others have been discovered at prayers, or at meeting, immediately after having committed a barbarous murder, and numbers have been heard in their way to execution shouting, "glory, glory," &c. and exulting in a belief that their crimes on earth will be followed by endless joys hereafter. But where are the men who from being convicted thieves have become honest and useful citizens? Alas, "once a thief always a thief," is the sad rule of the convicted! The loss of honest character with men, as of virtuous character with women, is seldom redeemable. Alike they feel themselves to be outcasts from the respectable part of the community, and, according to constitution and circumstances, pine or riot under the infamy of their new condition. Commixed, as that infamy now is, with condolence and comforts, they feel less inclination to shun it'orturn from it than formerly. Comfortably fed on the ready provided bread of dishonesty, they are willing so to feed on rather than to renew endeavours to earn their daily bread by hard labor. Indeed the discourses they hear, and the acquaintances they make, in prison, disqualify them for a return to honest pursuits. There the youth who in an unguarded moment has pilfered some trifling article, the man who has committed an act of dishonesty to relieve a pressing want, and the clown who has been enticed into the commission of a crime by an old offender or a common informer, are mixed with and compelled to hear the discourse of hardened thieves-their contrivances, their daring, their hair-breadth scapes, and their jollity, are recounted, compared, and often lighted up with the fire of genius and talent; they are interested, amused, instructed; their outcast condition is seen to have charms of its own, which they never thought of; they think lightly of their offences when they see that all around them have done the same, and are still comfortable and merry, and from having entered their prison bowed down with shame and compunction, they come out of it reconciled to the abode, loud in the praise of its comforts, and qualified by what they have learnt to engage in a series of higher crimes against the peace of society!
And if the hearts of some few criminals be sincerely turned during the term of prison association, and prison instructions, who will repose confidence in them? who will employ them? who will deal with them?-Scarcely none but those whose dealings are of an illicit nature. Even if the criminal conceals the disgrace he has undergone, and re-establishes
himself in an honest line of life, his prison acquaintances find him out, and drain his earnings from him, or drive him away. There is a sort of commonwealth assumed among the criminal and profligate. Those who are in luck are sure to be beset by their destitute or greedy associates, and compelled to supply their demands under pain of impeachment, exposure, or violence. Thus a man who has been initiated into prison associations, must go on in the course he has entered, the bad acquaintance there formed will not quit him, if he would quit them!
But the new system aims at creating habits of industry in the convicts while under confinement, and thereby expects to qualify them to gain their living by hard labor after their discharge. The labor of prisoners, however, is at best mere play, in comparison with the intense persevering attention, and the laborious efforts, to which men are driven to support their families by honest means. The loitering employment of a prison, therefore, is not the training by which they can afterwards support their families by honest labor.
There is not a prison in England, it is confidently believed, where the earnings of the prisoners amount to one-tenth of the expense of their board and lodging as single men.
We need not go far for examples on this subject. The county gaol of Middlesex, built on the modern system of spaciousness and comfort, and called "The House of Correction;" but which might with more truth be called the "House of Attraction or Seduction," cost 60,000l. building; the annual expense of accommodating and superintending the prisoners, is about 90007., to which add 5 per cent. on the cost of the building, and the annual amount is 12,000/.; the annual produce of their labor is 260/.! Thus, in this house of correction or industry, the earnings of the prisoners amount to no more than a 46th part of their expenses as single men!! At the Penitentiary, Millbank, the building of one half of which has cost the public about half a million sterling, comforts are provided unknown to hard working men who are honest; among which is the warming of the whole interior by a steam apparatus, of great cost, lest the air from heaven should visit the criminals too roughly. The annual expenses of this establishment were stated in the House of Commons, to amount to 100/. for each convict. Thus, a laboring man, who at honest labour can earn no more than about 301. a year, to support his family, if he turn rogue and lead his family in the same path (a wife and four children we may suppose), will then draw from the public for their support, in the way of punishment, six hundred pounds a year!