Old Bailey experience. Criminal jurisprudence and the actual working of our penal code of laws. Also, an essay on prison discipline, to which is added a history of the crimes committed by offenders in the present day

Preface

r

Concerning the nature of our criminal laws as an abstract question, so much has already been said and written by forensic and learned persons, that as a theoretical subject, nothing remains to be urged, either in support of their alleged excellence on the one hand, or of the general call for their revision and amendment on the other. Facts, however, have been, to a great degree, if not altogether, disregarded by legislative speculators. Nevertheless, facts are the only things that can overcome the prejudices of all parties. Impressed with this truth, the writer of the present work has, notwithstanding his repugnance to the task, been induced to lay the results of his experience and observations open to the world. They relate to the practical effects of our criminal laws. Every science is best studied on the inductive system : theory and narrow technicalities never wholly stand the test of actual experiment. In criminal law, however, the ground of experience is yet untrodden ; and it was well said by a distinguished writer, " that law is studied in England rather as an art than a science." This country, which abounds with men skilled in scientific vi

PREFACE.

acquirements, is yet deficient of any just and true knowledge of the science of legislation. Every session of parliament, indeed, some portion of our criminal code comes under consideration of the house, and alterations are either proposed or made ; still no real progress towards a positive amendment is discoverable by any acute observer. This is a reproach to our rulers, and from which it is hoped they now see it is time to redeem themselves. Laws made by the inhabitants of another sphere for those resident in this, and vice versa, would be as likely to suit the state of society in each, as those made by men residing in the same planet, if framed on speculative opinions, disregarding the actual experience of the times in which they live. The obtuseness, however, of legislators in comprehending the proper method of treating their fellow-men is proverbial in the mouths of all persons who have mixed in that society which is calculated to impart to them a real knowledge of their own species. If, then, rulers will not step from their pedestals to acquire the qualifying information for making laws, not only beneficial to themselves, but, which is of more importance, to mankind at large, it then becomes the duty of all men to aid in convincing them of their error. The author would not gratuitously draw upon himself a charge of egotism, or be thought to put himself forward as one qualified to instruct legislators in their duty, further than to furnish them with facts, the knowledge of which has been acquired by close observation. If laws for the human race were made by gods or even demi-gods, then would those who enacted them be justified in neglecting the opinions and experience of mere mortals. It cannot, however, be treason to presume that the greatest master-minds in

PREFACE.

Vll either House of Parliament are liable to error ; it is therefore submitted whether they are not bound to receive, to the widest extent, all the evidence which is offered them, especially when the truth of the matter proffered can be proved beyond any controversy. Under the impression that they will, or ought to do so, have the following pages been written.

Some of the matter which this volume contains appeared in print in the latter part of the year 1832, in " Fraser's Magazine." Originally the manuscript of only three papers were handed to the editor, nor had the author any thought of pursuing the subject further. But the favourable notice the papers received from the public induced him to extend his remarks, and subsequently several other articles on the same subject, were written for, and inserted in, that periodical. In the beginning of the present year, it was suggested to the author that a publication of the whole series was called for ; this hint, together with the appearance of " Archbishop Whately's Thoughts on Secondary Punishment," which are considered by the writer of this work opposed to all experience on the practical results of the effects of punishment, led to a re- consideration of the entire subject in detail. Had a work of this size been contemplated in the first instance, it might have appeared modelled under more regular and specific heads ; to compensate for any defect of this nature, a general and copious index is annexed to the work.

C O N T E N T S.

Chapter I

On the State of the Poor, and Cause of Crime. Sect. T. — Want of an efficient system of education for the poor, the cause of crime .... Page 1

II. — Plan for a better system of education, and the employ-

ment of the poor . . . .17

Chapter II

General Remarks on the Prisoners confined in Newgate before and after Trial, and the Effects of Punishment in deterring Men from Crime ...... 37

Chapter III

Courts at the Old Bailey, and the necessity of an Appeal Court. Sect. I. — Hurried trials and treatment of prisoners in Newgate 59 II. — Necessity of an Appeal Court . . .90

III. — Information respecting the character of prisoners . 112

Chapter IV

Principav Secretary of States Office, or difficulty of Establishing Cases of Innocence before those in whose hands the Power of Pardon is vested.

Sect. I.— The Pardon Power . . . .117

II.— The Privy Council . . . .135

b

X

Chapter V

On the Sanguinary Character of our Penal Latvs. Sect. I. — Effects of executions. Treatment of malefactors under sentence of death in the cells of Newgate, illustrating the necessity for an alteration, particularly as regards religious instruction . . . .158

II. — On the inutility of capital punishment, and the acerbity of the British laws . . . .184

III. — The punishing of one crime creating others . 206

CHAPTER VI. Prison Discipline and Secondary Punishments

Sect. I. — On the character of men who generally commit erim and the best mode of disposing of the habi,: .. offender . . . . .213 II. — On the impolicy of over severity in the treatment of convicts in general, and the views of Archbishop Whately considered on transportation . . . 229

III. — Delinquency increased unnecessarily by the number of

petty enactments against crime . . 255

IV. - — Rancorous feeling of the poor. The punishment of em-

bezzlement ; and the necessity for the institution of courts of summary punishment . . 264

V. — On the American system of solitary confinement . 272 VI.— On classification . . . .286

VII. — On juvenile offenders .... 294 VIII.— On the effects of theatrical exhibitions on untaught boys . . ... 307

IX. — On the presentment of bills of indictment before the grand jury . . . . .314

X. — On allowing counsel to prisoners charged with felonies 322

Chapter VII

Sect. I. — Housebreakers ..... 330 II. — Highwaymen ..... 339

CONTENTS. Xi

Sect. III. — Coiners ..... 344

IV. — Pickpockets ..... 360 V. — Sneaks. ... . 364

VI— The shoplifter . . . . .371

VII. — Snatchers of reticules, watches, &c. . . 372

VIII. — Starrers ..... 373

IX. — Horse and cattle stealers . . .375

X.— Swindlers ..... 379 XI.— Men and women who waylay inehriate persons for the purpose of robbery .... 384 XII. — Receivers of stolen goods . . . 405

XIII. — Forgers . . . . .415

XIV. — Embezzlement . . . .419 XV. — Duffers and ring droppers . . .421

XVI. — Stealing from carriages, carts, &c. . . 423

».VII. — Depredations on the River Thames . . 424

OLD BAILEY EXPERIENCE.

Section I

Want of an efficient System of Education for the Poor, the cause of Crime.

" Therefore I said, Surely these are poor ; they are foolish : for they know not the way of the Lord, nor the judgment of their God. I will get me unto the great men, and will speak unto them ; for they have known the way of the Lord, and the judgment of their God : hut these have altogether broken the yoke and burst the bonds." — Jeremiah v. 4, 5.

It cannot be otherwise than that all men should desire to be happy, both in this and the next state of existence, and that having this desire, they should naturally wish to adopt the means of obtaining it. We may, therefore, reasonably inquire how it is that men commit crime, seeing it unerringly leads to the opposite of happiness ; namely, disgrace, loss of character, and punishment, with the certain destruction of eternal welfare, besides, during their present state of existence, being encumbered with a self-accusing and reproaching con-

B science, which ever must be a state of misery in itself. Now, considering that personal interest is the primum mobile of all human actions, it would appear from the conduct of a large portion of society in all ages, that many are continually rising into life, ignorant of what is good for themselves, and are not sufficiently ethically instructed, to form correct judgments as to what line of conduct is the best to adopt for the attainment of happiness. If, therefore, all men who fall into the habits of crime do so purely from lack of knowledge, they must be considered objects of pity and commiseration, and not of punishment. Men in general having correct notions of right and wrong, and who are otherwise on the qui vive to all the offices of life, and the relations of society, do not pause to consider, or stop the current of their every-day ideas, to reflect on the condition of mind in which a considerable number of their fellow-men are placed, and the effect that condition has on society in general. Want of knowledge, in fact, is the cause of all crime and misery, — not book knowledge, or that of the schools, — but that knowledge, which should teach mankind, in all the ramification of society, what is really and truly their individual interest, as connected with the community at large : the lack of this, and the paucity of moral knowledge, have disorganized society. The legislator is as deficient on this head as the pauper, and to which may be traced all the errors of legislation since governments were instituted. There can be no happiness in a country, when all the parts of the community are not harmonized ; and it is the peculiar province of the leaders in a concert to make themselves acquainted with the keys and chords, to produce harmony. The body politic may be compared to the body corporate ; if the symbolism of the parts are disturbed, or interrupted, disease is the immediate result, morbid action commences. If there be a non-consent of the different parts of the body, through the intermediation of the nerves, muscular volition ceases, and all is jarring and confusion, when

AND CAUSE OF CRIME.

the body becomes elumbated and unhealthy. One would be led to think, from the conduct of modern legislators, that they thought the community could best enjoy happiness whilst in a state of disunion. The fable of the body's members is reversed ; the belly has revolted against the members, who are now idle and out of employ, as our legislators cannot but know that the cause of crime is want of knowledge and employment, both of which they have the means of giving, the latter especially, by the appropriation of land for manipular cultivation. In the language of Menenius Agrippa, " The legislators must confess themselves wondrous malicious, or be accused of folly." Perhaps they may say, that they are not possessed of any controlling power over the circumstances of the times ; that the increase of the poor population defies all legislative remedies, and that the crime springs from poverty ; but the poor do not commit crime abstractedly, because they are poor ; that is to say, the instances wherein crimes have been committed, and traced to be caused by the temporary or immediate want of the culprits, are fewer than those committed by persons far above absolute want, and who had the restraining advantages of education. Yet it is admitted, that from the pauper population comes all the body of the criminals ; and the reason why it should be so is plain enough ; the children of the poor are, per necessatis, brought up in ignorance, and are exposed to every evil and vicious example, which places them in situations of strong temptation, to join those already engaged in crime ; they undergo greater privations, without possessing the moral restraints which belong to children of more fortunate parentage. But whatever may be the cause, when men are unendued with a sense of the enormity of robbing their fellow countrymen, and that it is not more to their advantage to abstain from crime than to commit it, they may be pronounced to be in a morbid state of mind, denominate the disease what you may — call it madness, or by any other name. I do not mean to affirm

b 2 that God has not endowed all men with a consciousness of right and wrong, more particularly in regard to proprietorship of property ; it must, however, be taken into consideration, that long prior to the full developement of this sentient quality of man, the children of the poor (especially in London) are trained up to habits which become fixed and radicated, forming a part of their very nature, and that when the mind becomes fully sensible of error in maturer years, their then position in society is not one of choice. Consider, too, what an extraordinary power of internal resistance it will require to overcome the vicious principles and propensities in which they have, from the cradle, been nurtured ; surrounded, too, by a concatenation of circumstances through which nothing; short of a miracle could enable them to break : they are, in fact, prisoners to circumstances — slaves to fate. A man having acquired an ill habit from his birth, may be very sensible of his defect, without the capability of conquering it. This is the situation in which all those are placed who never knew any other calling than that of a thief : mankind in general have the same endowments, differing only in degree, and the developement of their powers under various modified circumstances. The tone of their feeling, however, is influenced wholly by treatment, connexions, and events, in millions of cases purely accidental, — I mean out of their control. From these causes, the character of man once cast, is incapable of taking any other print. Writers on crime, I fear, have not considered their subject in this point of view ; and have not sufficiently reflected on the facts of life, or so much disappointment would not have been expressed by them on the non-effects of prison discipline ; neither would they be so sanguine on the supposed good effects of an improved prison system, in deterring men from crime. Many differ in opinion as to the contagious nature of diseases, but none can doubt the contagion of bad example, and the ill effects of a vicious education. When the eastern epidemic

AND CAUSE OF CRIME.

visited this country, government adopted prompt and efficient means to arrest its progress ; why will they not show equal alacrity in stemming the torrent of immorality which is fast rushing on society ? why not oppose this plague? The evil dispositions of men, it is said, can never be eradicated, or crime suppressed. Have those who reason thus ever reflected that all classes have but an artificial existence, and that very small causes, whose operations are continuous, bring about all the changes to which societies are subjected ; a confluence of causes bring about those effects, which are used as marks, or epochs of time, in the history of nations. Governments have no small share in influencing these changes — some for the good, but more for the disadvantage of mankind at large. The history of the world, and that of revealed wisdom, however, assert, that there is a moral principle always in operation, which makes injustice its own punishment. The poor have for years been oppressed, and the principle of retribution is discoverable in the present state of society : they have been denied their rights, the bare-worn commons ; poor-rates and crime, with the expense of two standing armies— -the soldiery and police— are the penalties of this injustice.

In the science of nosology it is an axiom, that a certain quantum of disease, that is, of animal morbidity, will always be warring against man, by which it is understood, that if by any miracle of nature all the maladies which afflict mankind could at any one moment cease, that the next would bring them again into full operation ; it being a fixed and immutable law, that however by art we change or alter the character or apparent nature of disease, yet, the total sum of morbidity will ever be the same, varying only in proportion to the bulk of animal matter in the world, and opposed only by the vis medicatrioc naturce. This principle does not extend to the moral world : if mankind can once be brought to estimate their true moral capabilities, and comprehend what is their positive interest, under a really honest and virtuous system of government, there is good reason to hope for a permanent state of happy morality. The question is, how we are to arrive at this desideratum ? The rulers say, the only panacea is the halter and the cat-o'-nine-tails ; but if they hang a man on account of his being afflicted with a certain malady, will that execution prevent the constitution of others falling under the effect of the same complaint ? Certainly not. Neither will the violent death of one rogue prevent others from continuing their course of delinquency. Men in the army and navy are not found to abandon their profession, on account of witnessing the fall, occasionally, of their comrades in the service. It is admitted, that there is a charm in hazardous callings ; why then should it not be so with criminals, who make as much a trade of their pursuits as men in the army or navy, and who are generally as unintellectual as the thief, which accounts for the stolidity and hardihood of them all. There is another consideration on the supposed benefits arising to society from severe punishments. It is thought that if the hardened offender is not deterred, yet the crimes of society in general are held in check by the examples made : this is an egregious mistake ; the criminal professor disregards it, he looks on it as a probable consequence, but like the soldier, has made up his mind to brave it ; but the honest man who is yet to become criminal, not contemplating the commission of any offence, applies it not to himself. In every community there will always be some, through the weakness of human nature, slipping off the beaten path ; many lose for a time their self-possession, and fall by infatuation for women ; others are carried into crime through the road of a love for company and inebriation ; not a few by love of play; weakness of mind, temperament, and circumstances, will ever throw a small portion of every community into the hands of the law ; but I think no man acquainted with human nature will say, that one out of a hundred of such offenders as last named, ever, in the current of their

AND CAUSE OF CRIME.

licentiousness, stop to consider, that its ultimate end must be crime and punishment. With such characters, the man who commits crime to-day would yesterday have knocked down any man who should have hinted at the bare possibility of his being capable of committing an offence against the laws ; and this, too, may occur, under a real sense of honest indignation and repugnance at the charge, only a few hours before the party stands a criminal among his fellow men. Our laws are altogether as unfitted for this kind of offender, as they are for the more desperate one. Our legislators are too apt to judge of the sensations of others, under circumstances of distress, disgrace, and punishment, by the standard of their own feelings; but this is a mode of reasoning which will ever lead to erroneous inferences ; unless the parties are bound by reciprocal interests, being in the same condition and station in life. The law-maker forgets that, not being in danger himself of falling into crime, and never having occupied a station in life which rendered him liable to its commission, his qualification for judging of the motives and feelings of men, who are drawn into crime, must necessarily be deficient and defective. They do not study the impulses of mankind, or one set of laws would never have been constructed for all kind of offenders ; that is, if the idea of reclaiming any ever came across their minds. It is a paralogism to hold that the same law and treatment which applies to a thief, brought up so from the cradle, is fitted for the decently, morally educated man, who, under the influence of circumstances, (if they were inquired into,) commits an offence for the first time, which may admit of great palliation, or be wholly extenuated. The incorrigible rogues are incorrigible : being men,

" Which any print of goodness will not take, Being capable of all ill."

I pity them. The other offenders, under a really moral government, that is, one which legislates wholly with a view of preserving morality, making the punishment of crime at least a secondary consideration, in the construction of the laws, thousands, who now fall victims to the vice of this metropolis, might be saved ; and under a different mode of administering the laws, which gives discretion to the judges, ninety-nine out of one hundred, who do commit crime, belonging to that class which may be called the morally educated part of society, might be gathered again into the flock, retaining as high a sense of their social duties as heretofore; but herding and punishing them with those who never knew any good, will not accomplish this object. We hear much talk of prison classification, and prison discipline ; the classing required is, to separate the offenders of habit from those of accident; the discipline for the latter should be gentle remonstrance, with imprisonment and simple food, till the natural tones of their minds and bodies are restored. Those who are born and bred in crime, possessing it as an inheritance, must be esteemed another race of beings. "All are not men who bear the human form." But,

" Who hath seen, or ere shall see, Man as himself, the secret spirit free V

Education, circumstances, and even food, alter the flexible nature of man so much, that there is no animal on the earth exhibiting so many varieties in the same species. It is on this rock that our law-makers have foundered ; they will not consider well the kind of men for whom they legislate : in their enactments against crime they jumble all classes together ; in their punishments they mix up the apparently irreclaimable, with the decidedly reclaimable offender, thus augmenting every day the body of confirmed rogues, from the number of casual delinquents. No wonder that in England and Wales, within these last twelve years, crime has increased three-fold. Under the present system of indiscriminate punishment, if a man with a large family, through an

AND CAUSE OF CHIME.

aberration from regular conduct, or temporary need, commits an offence, (perhaps of a trifling nature,) he is punished in the same manner as an old offender, even if he brings a character for honesty of twenty, thirty, or forty years previously. The monstrous injustice of measuring out punishment in this manner cannot but be apparent to every man ; in cases wherein it is practicable to ascertain the truth, moral turpitude, as well as legal, should be considered ; this was the object of the legislature, no doubt, in investing the judges with such extensive powers of discrimination in awarding punishment for the commission of crimes. The judges at the Old Bailey who perform the greatest portion of criminal business, without doubt; do the best they can in every case which comes before them : but under an amended system the history of every prisoner might be laid before the court : it is now left to persons in no way qualified for the business — persons who are irresponsible ; besides it is done in the dark — under the rose — behind the curtain — the least innocent being unacquainted with the power till it is too late to avail himself of it ; a power, the existence of which renders the whole of the proceedings at the Old Bailey court a spectacle of solemn mockery. Sometimes I have viewed the proceedings of the court, from facts which have come to my knowledge, as a travesty tragedy ; the results, however, are generally more lachrymose than ludicrous. Cases might be cited until the public were surfeited with reading them, I will, however, relate one : — The suffering party, relying on the merits of his cause, neglected to apply to the recommendatory quarter ; and now, mark the consequence !

The town traveller of a wholesale house in the city was transported for fourteen years, under the following circumstances. He (the traveller) canvassed for orders, and collected his own accounts, but was not called on by his employers to make up his receipts of cash daily, but only once every fortnight, leaving him intervals of fourteen days to possess their money. One day his wife's brother, who was a tradesman in London, came to him in a great consternation, saying, that unless he could borrow forty pounds that day he was a ruined man, informing his relation that dishonoured bills had been returned to him, which must be taken up immediately, adding, that if he could obtain the money he was sure of returning it in two days'* time. The traveller, seeing his relation in this strait, told him that he had no money of his own, but if he could rely on its repayment in due time, that he had as much of his employer's, which he should not be called on to pay into the house for some days, and that he might use it. Having assurances given him that he might depend on the return of the money in due time, he, in an ill-fated moment, was induced to accommodate his brother-in-law with the forty pounds belonging to his employers. The subsequent day the tradesman was arrested for a heavy debt, and his embarrassed affairs (as it now turned out they were so) becoming known to his creditors, he was broken up, and in consequence unable to return the money borrowed of the traveller. In this dilemma the man took the honest and judicious resolution of telling the whole truth to his masters, who heard the particulars of the affair without comment ; in the evening, however, while at supper with his wife and family, he was apprehended, and the next day committed on a charge of embezzlement.

When the day of trial came, in the hope of mitigating the sentence, the brother-in-law attended with another person who was present when the money was lent, both of whom stated all the circumstances, and how reluctantly the prisoner parted with the money, doing so only on the solemn assurance of its being returned on the day named at the time it was lent ; to this testimony was a character of the best nature added ; notwithstanding which, the prisoner was sentenced to fourteen years transportation, the greatest extent of punishment the law allows for this offence. It is the practice of the judges at the Old Bailey always to increase the punishment when a fictitious defence is made ; and it is probable that in this case, hurried as it certainly was, the presiding judge took this view of it, and therefore gave all the punishment in full. Nothing, however, could have been easier than to have removed this prejudice, if time had been allowed. In that same session fifty old offenders were sentenced to seven years transportation, and double that number sent again on the town, after receiving minor punishments. No considerations — no respect to persons should prevent these things being looked into by the legislature. The wife of the traveller, and his three children, ultimately went to the workhouse, and became incorporated with the poor of the country, in which class it is probable they and their posterity will ever remain.

I have sometimes thought, witnessing the conduct of the judges at the Old Bailey, that they, seeing it impossible to make any impression on the hardened offender, appeared to make up for this disappointment by a system of terrorism over the more timid and less offending. Sometimes the practice of hurling large and decent families into utter ruin and poverty, in consequence of one deviation from the path of honesty, is defended on the fallacious principle that the law should make no distinctions. What, then, becomes of the supposed necessity there is for arming the judge with discretionary powers ? But this, in fact, is a violation of all justice; every man should be judged by his general character, and not by the exceptions in it. Even in our superior courts there is often a disregard to that grand essential in law, namely— justice. In cases of libel, the judges look only abstractedly at the fact, throwing aside the relative situations of the parties coming under their judgments. I knew a man of fortune, and another who had no means but what he derived from his trade to subsist on ; both were sentenced to two years imprisonment, and to enter into recognizances, &c. The former having property, and being a military man, the punishment was no more to him than going into garrison for the term. In the latter case total ruin ensued ; his business was destroyed ; he became a bankrupt, and was left to endure a]l the horrors of a prison without even means to supply his daily wants ; and to this distress was added the knowledge of his wife and family being without bread to eat.