46 PRACTICAL WORKING OF THE PRESENT SYSTEM. warm-hearted than by the calculating thief or accomplice. Suppose a case in which a man had been guilty of treason, or, were those laws abolished,—of an unsuccessful attempt to overthrow the government, in which murder had been committed by shooting some of the soldiery. The friends of the offender know that though misguided, perhaps, he was not depraved-they are anxious to save him-a sister, it may be, hazards everything to accomplish the point,-she fails-is tried-convicted-and becomes liable to transportation for seven years! Probably the general feeling would be such that no sentence of this kind would be executed, but we ought not to leave in the statute-book an enactment which outrages man's best feelings, and is, mainly from that cause, useless in itself. When an enactment does not effect its purpose it ought to be repealed at once; for it is not well to habituate the people to disregard the law: and though this latter can never possess or expect to obtain that deference which we bestow on the higher laws of that Great Legislator who views the heart rather than the actions, yet it is well to keep it so in accordance with that which he has sanctioned, that it may borrow from it a claim to reverence which it has not in itself. Having now gone cursorily over our criminal code, and so far examined it as to show wherein it is not in accordance with the principles laid down at the beginning of this treatise: it remains that we go on to the second head, and consider of the possible amendment of it by a fresh classification of crimes and penalties. CHAPTER III. POSSIBLE AMENDMENT OF THE PRESENT SYSTEM. THE first step towards the consideration of a new system of penalties for crime which may be effectual toward its repression, must be an endeavor to become acquainted with the nature of the kind of persons upon whom the punishment is expected to operate: and for this purpose it is necessary to divide offences into such various classes as to make the very crime committed in some measure an indication of the character of the offender. To do so with complete accuracy would indeed be impossible; but the following divisions, which nearly coincide with those used in the published "Tables of Criminal Offenders," presented every year to the two Houses of Parliament, may serve the purpose. 1. Offences against property not committed with violence. 2. Offences against property committed with violence. 3. Forgery. 4. Offences against the person. 5. Malicious injuries to property. 6. Other offences not included in the above classes, such as riots, destroying game by night, &c. SECTION I. 1. Offences against property not committed with violence. In this first class is included the great bulk of the crime which is committed in this country. It embraces cattle stealing; horse stealing; sheep stealing; the various kinds of larceny; embezzlement; receiving stolen goods; frauds; and attempts to defraud. The first essay of the young criminal is made in some one of these offences. A girl giving way to the temptations thrown in her way in the service of her mistress, or stealing a ribbon from a shop to gratify her vanity, becomes liable to the penalty of the law; or an ignorant laborer yields to a sudden temptation, and who for the first time steals and kills a sheep, is detected, and a severe punishment awaits him. These are instances which fall under one subdivision of this class. In another subdivision is to be found the receiver of stolen goods, who, during many years, has been deriving a profit from his nefarious occupation, corrupting all those with whom he has brought himself in contact, and whilst he has seen victim after victim punished for the offences to which he has urged them on, and of which he has received the gain, has by his skill and talent eluded the law so as to escape detection, until his whole nature has become utterly corrupted and depraved. Some of the fraudulent pretences which are made use of to obtain goods or money likewise indicate a mind which has been long addicted to the commission of crime. An instance of this kind occurred during the present year. The prisoner, a man of about forty years of age, a stranger to the townspeople, walked into a pawnbroker's shop, and sought to pledge a ring, which he said was of gold, and had been sent him by his son who was in India. The ring was tried with aqua fortis, and withstood the test, and twenty shillings were thereupon advanced. The same tale imposed upon other pawnbrokers in the town, from whom the prisoner thus obtained money to the amount of five or six pounds. In the meantime, one shopman, more anxious than the rest, applied a file to the supposed gold, and found to his dismay another metal. All the rings turned out to be made of zinc, and had been covered with gold by the electric process now well known, and the man who had thus disposed of them was shortly afterwards apprehended in the act of disposing of a large cross of a similar kind, which he said had been the property of a deceased Roman Catholic lady. He was convicted of obtaining money under false pretences, and sentenced to seven years' transportation. The conduct of this man throughout, together with the very nature of the offence, evinced a character of selfish cunning. So, again, there may be found persons leagued together in sheep-stealing or horse-stealing, whose plans are all concerted in the first instance to commit the theft, and afterwards dispose of the produce;-gangs of offenders who live by crime. These four subdivisions, which depend mainly on the character of the offender existing in all the offences enumerated under this division, it is clear that legislators can do no more at present, than affix various degrees and kinds of punishment, leaving it to the discretion of the judge to determine its application in each particular case. Let us proceed by steps. In the first place we find a numerous body of poor neglected children, who are known to the legislature as "juvenile offenders:"-a term that has become familiar to the ears of all from the attempts that have been made at different times to arrive at some kind of efficient punishment for them, which might reform whilst it chastised. Of all the problems of criminal legislation this is the most difficult to solve, but at the same time if grappled with successfully, that from which the largest benefit may be expected, since then the most fruitful source of heavier crime is at once dried up. In this class I would include all offenders under sixteen years of age. Cases sometimes occur when from mere wantonness boys commit small thefts; for them a whipping is perhaps the best punishment, for there the mind is not corrupt, and if surrounding circumstances do not induce them again to err in like manner, the remembrance of the pain and disgrace they have suffered will prevent a repetition of the offence by themselves or others similarly situated. But those who for the first time fall within the category of juvenile offenders are, for the most part, children who have had an evil example set them by their parents, or have been allowed to mix with bad companions, or have been deliberately tutored into crime. The effect of imprisonment in such cases has been already adverted to, and its utter failure as a preventive of crime, and a step towards reformation has been sufficiently pointed out. This has not been overlooked by the administrators of the law, and in courts of justice, when the judge looks with a compassionate eye upon the youth and neglected education of the criminal, he is not unfrequently heard to pronounce sentence of transportation upon him as a matter of kindness, accompanying the sentence with the expression of his determination to write to the Secretary of State requesting that he may be sent to Parkhurst.* It sometimes happens that Parkhurst is full and the boy is *Parkhurst prison was established by the statute 1 and 2 Vict. c. 82, which, after reciting that it may be of great public advantage that a prison be provided in which young offenders may be detained and corrected and may receive such instruction and be subject to such discipline as shall appear most conducive to their reformation, and to the repression of crime, and that the buildings at Parkhurst in the Isle of Wight lately used as a military hospital, and as a military asylum for the children of soldiers, are buildings which may be conveniently used for such a prison," provides, "that it shall be lawful for her majesty by warrant under the royal sign manual to appoint that the said buildings at Parkhurst shall be used as a prison for the confinement of such offenders as are hereinafter mentioned, as soon as the same can be fitted and completed for that purpose." Under this statute power is given to the Secretary of State for the Home Department to direct the removal to Parkhurst of those who are under sentence of transportation, and those under sentence of imprisonment, to continue there until transported, or they shall become entitled to liberty, or until they shall be removed back to the prison whence they were taken. Instances of the exercise of this power with respect to the latter class, have been exceedingly few in number; and by far the greater number of the prisoners at Parkhurst have been allowed to avail themselves of her majesty's pardon, conditional on their emigrating to the colonies of Western Australia, New Zealand, or Van Diemen's Land. Parkhurst was adapted for the reception of prisoners on the 26th of December, 1838; and the first report of the visitors appointed under the above statute, was presented to the Secretary of State on the 1st of July, 1839. From that report it appears that the prison can accommodate 320 persons; 200 prisoners in the upper wards, and 120 in the junior ward. They are employed in agricultural labor, in learning trades, in performing domestic offices, and in school lessons. The workshops are within the prison walls; outside are nearly eighty acres of land, for employing the prisoners in agricultural labor. Vide st. 1 and 2 Vict., ch. 82, and the reports of visitors, 1839 1844. |