is not in the wildness of a new colony that a sufficient curb can be put on the man of uncontrolled passions.

Let us trace the consequences a little farther. A. has received sentence for forgery; B. for the fire he has raised: C. a man of some education, and who has been convicted of maliciously maiming another; and D. a being who in his uncultivated nature is but little above the level of the brute, has violated the person of a woman, have both received the same sentence as the two former. How will the ranks of persons predisposed to commit these several offences, and to whose minds and hearts the sentence passed upon these individuals should speak so as to prevent them from committing the like crimes, be affected by the judgment? In the consciousness of possessing a talent and a cunning sufficient to place them, after some short interval of hardship and discomfort, in a station far above all pecuniary want in a new society; with well-remembered instances present to their minds of convicts of a like stamp living in luxury in New South Wales upon the fortunes they have amassed since their transportation, the sentence produces little or no deterring influence upon the class from which the forger has been taken.

Let us now turn to B. the rick-burner: his companions are in court, his fellow-laborers when employment could be obtained, and to them he is very likely to be known as one who is capable of doing a kind action for a friend, and who loves his wife and children, and is beloved by them: the jury has found him guilty, and the judge in his anxiety to prevent a repetition of the crime has passed upon this unhappy man the severest sentence the law allows him to inflict. At one stroke all these tender ties. are severed, he receives the fiat in mute despair, and in his agony swoons away.* In this case the sentiment produced among bystanders is that of compassion for the offender, whose fault is almost forgotten in the extreme severity of the sentence, and the former companions of the prisoner leave the court with feelings of indignation

*This is no exaggerated picture. It occurred in the spring: of 1844, at the trials of the rick-burners in Suffolk.

and perhaps of conceived revenge against those whom they consider as their oppressors, restrained only by the basest of all possible motives, fear. And to the offender what is the consequence? Every tie that bound him to life is broken,-what matters it to him whether he conducts himself well or ill in the colony whither he is sent? he is there for life, he cannot hope to rejoin wife or children any more he goes forth a reckless man, rendered worse instead of better by the sentence of the law, and the wife who is left behind with a large family to struggle against the world for a maintenance, with only the Union house, or starvation before her—not allowed a divorce in consequence of a sentence which severs her from her husband as effectually as death-is too frequently not less deteriorated in her moral character than the husband, by the stern sentence of the law.

C. perhaps has friends in good circumstances: he very soon finds means to enjoy such luxuries as the colony affords, and it is well known that he will do so.* Where is the deterring influence in this case?-the criminal is able to defy the law!

D. is sentenced, and leaves the court muttering curses against the judge; he is removed in due time to Australia, and employed upon the works in a government gang; he repeats his offence, perhaps, or is guilty of some other act of violence; he is again tried, and sentenced to the severer discipline of Norfolk Island. What this is in its results may be best understood from the evidence of the Rev. W. Ullathorne, D. D., a Roman Catholic priest, as given before a Committee of the House of Commons.

"There was a conspiracy in 1834 among the prisoners to take the island from the military, and to obtain their freedom . . . . . a skirmish ensued, one or two persons were slain upon the spot, and I believe eleven or twelve were dangerously wounded; six or seven died of their wounds afterwards. . . . a commission was sent from Sydney to try them (the conspirators). In this case thirty

* A lieutenant in the army sentenced to transportation for a shameful outrage on a young lady, was seen driving his curricle in the streets of Sydney very soon after his arrival in the colony.

one were condemned to death. Some six months afterwards I proceeded from Sydney for the purpose of attending those who were to be executed, and on board the same ship was a Protestant clergyman likewise. On my arrival I immediately proceeded, although it was late at night, to the jail, the commandant having intimated to me that only five days could be allowed for preparation, and he furnished me with a list of the names of the thirteen who were to die, the rest having been reprieved. . . . . Upon entering I witnessed a scene such as I certainly never witnessed in my life before. The men were confined in three cells: they were then mixed together; they were not aware that any of them were reprieved. I found, so little had they expected the assistance of a clergyman, that when they saw me they at once gave up a plot for escape which they had very ingeniously planned, and which might, I think, have succeeded so far as their getting into the bush. I said a few words to induce them to resignation, and I then stated the names of those who were to die, and it is a remarkable fact that they one after another, as their names were pronounced, dropped on their knees and thanked God that they were to be delivered from that horrible place; whilst the others remained mute and weeping. It was the most horrible scene I ever witnessed." The same gentleman, corroborated by other authorities, represents that the convicts are driven to despair; that they have been known to commit murder for the sake of ridding themselves of life, and according to the expression used by one of the convicts himself, "When a man comes to this island he loses the heart of a man, and gets the heart of a beast."* Thus we see that, as if it were determined that he who entered that abode should have no hope left, there was not even a chaplain appointed by the government to speak words of admonition and comfort to the wretched men suffering a "punishment harder than they could bear."

I think that after this statement, I am justified in as

*Papers relative to Transportation, &c., Session 1839. No. 582, cited by Abp. Whately.

suming that we are yet very far from having adopted the best means for attaining the object which social law has in view, i. e., the prevention of crime, and that there is great need for a revision of this part of our laws.

It was natural to hope that the commissioners lately entrusted with the revision of the criminal law, would have taken the system of penalties also into consideration; but though they have suggested some few alterations, they have not thought fit to offer any observations on the tendency of the system generally. Thus though the barrister and the judge may be saved some trouble by the codification of our laws, the citizen who asks for security of life and property; or the philanthropist who asks that man shall be trained to virtue,-not to vice;-must remain as little satisfied as before; the question of how the great object of criminal law, i. e., prevention of crime, can best be effected, is yet far from solved, and the subject requires to be taken up de novo.

As a preliminary step in such an inquiry, it becomes needful to consider whether the offences which are constituted such either by statute or common law, are all of a nature which can be clearly recognized as coming within the province of social legislation; for we have already seen that law must borrow much of its efficacy from its agreement with that ineffaceable common law which is written in man's heart by the finger of his Creator. And here it was to be hoped that as the attention of her Majesty's government had already been given to the codification of our criminal law, some endeavor would have been made on the part of the commissioners to remove statutes and practices which are no longer in keeping with the habits of the time: but in dividing the offences at present cognizable by our criminal courts into chapters, with a view to their classification, they have placed at the head two, which we have already seen, (II.) cannot be considered as either useful or expedient in the present age. These chapters are headed

1. Treason, and other offences against the state. 2. Offences against religion and the established church. On the first of these the commissioners observe, "The first great class which comprises treasons against the

sovereign and the state, requires no remark; the crime of treason is, by its tendency to destroy the bonds of civil society and produce a state of anarchy and misery, clearly distinguished from all others. It falls within the description of the crimen læsæ majestatis of the Roman law, and by whatever name or whatever circumstances it be described, it must constitute in every system the first and highest offence known to the law."

Now though it may appear almost presumptuous to impugn the dicta of men who have devoted long and anxious attention to the subject, yet, if the principles already laid down be true ones, it is unavoidable: for if social law be founded upon them, then it is impossible to overlook them in any one or two instances without serious injury to the system, as a whole, which shall win the respect and consequent obedience of a nation. Let us consider the matter farther. The sovereign, considered as a human being, has the common natural rights of a human being, and no more, and with whatever more of sanctity and dignity public opinion may have hedged him round, it is clear that it is only as the embodiment of the law itself, of which he is the dispenser: and the law affords him protection in that judicial capacity by a fiction -"the king can do no wrong"-only in order to prevent the evils which would arise to the body politic were the king made privately answerable for the acts done in his name according to the law. But if the king attempt to act in opposition to the law, no one in these days will say that the resistance to such acts is wrong, but the contrary; though if such resistance be unsuccessful, the leaders of it, according to the still existing statutes, must expiate their crime by death. Yet if it be successful, as in the case of the partisans of the Prince of Orange in 1688, those same men, who, if unsuccessful, must have been executed as traitors, will be lauded, and justly so, as the saviours of their country. A strange anomaly, which at once removes the law of treason from among those founded on the natural rights of man, which, as we have already seen, form the basis of all social law. For man cannot delegate a right which he does not possess, and the power of exercising control over any man, or body of men,