Suggestions for the repression of crime, contained in charges delivered to grand juries of Birmingham; supported by additional facts and arguments. Together with articles from reviews and newspapers controverting or advocating the conclusions of the author

Front matter

•Jo.

r AKY <•!«

. F R A N C IS LI i

Preface

TUDGING, perhaps, too hastily, from the public attention directed towards many of these Charges on their delivery, my friends have decided that they ought to be published, in a form likely to obtain a place for them among works consulted by the student of the various interesting branches of knowledge, which — using the term in a wide sense — may be classed under the head of Criminal Jurisprudence.

As the limits of a Charge necessarily exclude very much that a reader engaged in the investigation of the subject might desire to have before him ; and as uninterrupted argument becomes wearisome, I have separated the Charges from each other by matter which, I trust, will furnish a variety both useful and acceptable.

The views which I have from time to time submitted to my countrymen, though rarely original, have nevertheless had the fortune to provoke controversies in the Press, of a nature to show that the questions thereby raised had then for the first time earnestly occupied the public mind. Consequently, they were sifted with greater zeal, and by a greater number of writers, than had ever before been employed upon them. And, in order that the reader may not lose the benefit to be derived from considering the subject under a multiplicity of aspects, I have presented to him, in rapid succession, the conflicting opinions set forth in the journals and other periodical works, which have done me the honour to notice my labours — whether for approval or for censure.

VI PREFACE.

The volume, thus composed, will, to no inconsiderable extent, show the progress of opinion during eighteen years, in relation to the various topics on which it treats. It will therefore, I trust, not be without its use, in offering encouragement to those who feel it their duty to abide steadfastly by sound principles, however unpopular, — patiently awaiting the day when public opinion shall range itself on their side.

STAPLETON, BRISTOL, May, 1857.

Table Of Contents

PAGE

Introduction To Charge Of July, 1839 I

First Sessions i

Dangerous Meetings i

Police Defeated 2

Sessions Court guarded by Military Force 2

Painful Circumstances of First Charge 2

Justice best Administered on the Spot 5

Necessity for Permanently Disposing of Convicts who make

Crime their Calling 7

Use and Abuse of Grand Juries . '. TO

SEQUEL TO CHARGE OF JULY, 1839 TI

Riots, with Incendiary Fires 1 1

Distinction between Political Prisoners and ordinary Criminals should not be obliterated 13

Effect on Prisoners of Degrading Observances .... 15

Public ought to bear Cost of Witnesses for Prisoners . . 19

History of Prisoners' Counsel Bill 25

Convictions and Executions for Forgery 42

OBSERVATIONS ARISING OUT OF CHARGE DELIVERED IN MAY,

1840 46

Uttering Counterfeit Coin 46

Circumstances incidental to this Offence changed since

1840 46

Criminal Class below the average in Intellect .... 48

Phrenological Treatment of Prisoners 48

Reformatory at Stretton-on-Dunsinore 52

Its Results 53

Letter thereon from Sir J. E. Eardley Wilmot, Bart. . . 55

Necessity for multiplying Reformatory Schools .... 63

Vlll TABLE OF CONTENTS.

PAGE

Strikes and Intimidation 65

Receivers of Stolen Goods 66

Marine Store Dealers 69

Local Act in Liverpool for regulating the Licenses of

Marine Store Dealers 69

Embezzlement 71

Masters and Servants . . • 73

Prevention of Crime 74

Preventive Checks to Crime 75

Charity 76

Duties of Employers towards Employed 77

Belmont Candle Company 78

Recreation 81

THE LAYING OF THE FIRST STONE OF BIRMINGHAM GAOL . . 101

Recorder's Speech 102

The Gaol should be a Moral Hospital 103

Sudden Increase in Crime 107

Evils of Short Imprisonments 108

SEQUEL TO THE CHARGE OF MARCH, 1847 109

Causes affecting quantum of Crime 109

Chartist Demonstration 112

Liberte, Egalite, Fraternite 113

Juvenile Offenders 117

Stretton-on-Dunsmore 119

Mettray 119

Mettray 130

Letter from M. Blanchard on Results of Mettray . . . 130

Extract from Le Journal d'Indre et Loire 134

TABLE OF CONTENTS. IX

Petitions on behalf of Prisoners 135

Facility with which Signatures are obtained 136

Evil Effects thereof 140

Instances illustrating the Statements made in the Charge. 142

Introduction To Charge Of October, 1850 146

Burglaries in Birmingham and elsewhere 146

Crimes of Violence 151

Suggestion for Restraining Persons known to be living by- Crime 155

Law existing in India similar to that suggested in the

Charge 158

Opinions of the Press on the Suggestion 159

Suggestion contained in preceding Charge more fully

Explained 181

Burglary at Mr. Holford's 191

Opinions of the Press on the Author's Suggestion . . . 194

Introduction To Charge Of October, 1853 232

Cruelties in Birmingham Gaol 232

Birmingham Gaol 238

Captain Maconochie 239

Prison Discipline 240

Reformatory Treatment 243

Mark System 262

Testimonial to Captain Maconochie 265

Norfolk Island 273

Inefficiency of Deterrents '...274

Letter from the Author to Mr. Adderley thereon . . . 276

Societe de Patronage 287

Lord Brougham on the Criminal Class 294

X TABLE OP CONTENTS.

^PAGB

Connexion between Disease and Crime ....... 300

Metropolitan Association for Improving the Dwellings of

the Industrious Classes 302

Common Lodging Houses Act 304

Its Effect in Birmingham and other Provincial Towns . . 305

„ London 306

SEQUEL TO CHARGE OP MARCH, 1854 -311

Conversation with Dr. Southwood Smith 311

Report by Medical Officer of Birmingham 312

Sanitary Condition of that Town 317

Overcrowding in London 320

Bristol Lodging Houses 326

Duties and Responsibilities of Houseowners . . . . . 327

Youthful Offenders Act 336

Reformatory Schools 338

Parental Responsibility 339

Voluntary Principle 339

Birmingham Conferences 342

Bristol Meeting 346

Warwick Meeting , 346

Returning Juvenile Offenders to Parents or Employers . 351

Industrial, Ragged, and Reformatory Schools . . . . . 353

Introduction To Charge Of January, 1855 367

Operation of the Maine Law 367

Intemperance a Fruitful Source of Crime 372

Restriction in Sale of Intoxicating Drinks 374

Prohibition , . 376

Maine Law , . . 382

Addendum 389

Objections to the Charge Answered 390

Table showing the Progress of the Maine Law in the

United States 412

Effect of Good or Bad Times on Amount of Crime . . . 415

Effect of Prohibition in the United States 423

TABLE OF CONTENTS. XI

PAGB

Grand Juries . 440

Limited Utility of Grand Juries . ... 451

Birmingham Debtors' Gaol 455

Ticket-of-leave System 462

Rapid Mitigation of the Criminal Code , , . . . . 463

Stoppage of Transportation ..464

Necessity for Adopting Reformatory System, . . . , 469

Archbishop Whately on Time Sentences 474

Hulks 475

Transportation Committee, House of Commons, 1856 . . 476

Opinions of the Press on the Charge 478

Resolutions of the Transportation Committee, House of

Hope, an essential element in Reformatory Treatment . 531

Penal Servitude . . 533

Ticket-of-leave System not administered in its Integrity . 536

Prisons of Munich and Valencia 544

Sinithfield Penitentiary, at Dublin 586

Re-commitments of Ticket-of-leave Men 589

Photographic Portraits of Criminals 594

List of Ticket-of-leave Men in Birmingham 596

Discharged Prisoners' Aid Society at Birmingham . . . 599

Letter to the Times in defence thereof . . . . . . . 604

Introduction To Charge Of December, 1856 610

Crimes of Violence 611

Discharge from Gaol of Unreformed Criminals . . . .615 Ticket-of-leave System, if faithfully administered, would

mitigate present evils 619

Repression of Crime the end aimed at by Criminal Jurisprudence 622

Letter to the Daily News thereon 623

Opinions of the Press on the Charge 638

XU . TABLE OF CONTENTS.

PAGE

CHARGE OP MARCH, 1857 65r

Sir George Grey's Transportation Bill 651

Necessity for Reformatory Treatment 655

Tickets-of-leave 658

The Ashover Burglary 666

Crime in 1856 670

Prison Discipline in Ireland 672

Smithfield Penitentiary, Dublin 673

Thomas Wotton 683

Tickets-of-leave and Penal Servitude Men 687

CHARGES,

ETC.

Introduction To Charge Of July, 1839

FOR some ten days prior to the holding of my first sessions, a Jarge concourse of people assembled every evening in the open market -place, called the Bullring, under the influence of certain Chartist leaders. By their numbers they obstructed the thoroughfares, and became obnoxious to the shopkeepers of the district ; creating impediments which lessened the resort of customers, and thereby caused considerable pecuniary loss to these tradesmen, who naturally complained to the authorities of the injury which they were sustaining, from a course which appeared to be growing into a habit. It did not seem that the leaders had any immediate object in view, except to display the numbers of their adherents, and thus act on public opinion, and perhaps on the public fears. These gatherings did not take the form of an organized meeting, with a chairman at its head, and there being no common object to engage the attention of the multitude, nor presiding power to hold it in check, apprehensions not unreasonably arose, that tumults might suddenly break out pregnant with serious danger to the peace of the town.

At that time Birmingham had not the advantage of the new police ; and the old constabulary force was, from the paucity of its numbers, quite unable to cope with such assemblies. The authorities, however, although their warnings and exhortations to the populace to desist from these alarming exhibitions of physical force were of no avail, felt reluctant to call in military aid ; and considering that little or no actual violence had then been committed, recourse to such an extreme would not have been advisable.

Instead, therefore, of sending to the barracks for soldiers, they applied to the Secretary of State for the Home Department for a body of police from London, who quickly came down by railway. They arrived in the dusk of the evening before the day of sessions, and were immediately led to the market-place, under the conduct of the mayor ; and, after the proper formalities had been gone through, were ordered to disperse the crowd. Finding themselves, however, in a strange place, and in the twilight, they became confused and alarmed ; and the populace, taking advantage of its numbers, and observing, probably, the unfortunate state of its opponents, made such head against them as to defeat their attack. Many of the police were so rudely handled, that it became necessary to carry them to the hospital. The consequences, in all probability, would have been more serious had not the military been quickly summoned ; these, by their mere presence, turned the fortune of the day, and scattered the rioters — the mob happily giving no occasion for the use of weapons.

But having regard to the exasperation produced by this conflict, it was thought prudent that a few dragoons should mount guard over the court — a precaution which, I am glad to say, it has never been necessary to repeat.

CHABGrE OF JULY, 1839.

IT has fallen to my lot to address you, for the first time, under circumstances very painful, and by me quite unexpected. It has so happened that the eve of the day on which, by the gracious command of our Sovereign, we are called upon to bring that noblest institution of our country, trial by jury, into action, amidst the homes by which we are surrounded, should be the time chosen by evil-disposed men to meet in tumultuous assembly, in that same place with the intention, as was clearly evinced by their subsequent proceedings, to defy the law, and overpower its ministers by main force.

My disappointment you doubtless all share with me, because you know that Birmingham has been celebrated throughout the whole kingdom for the good order with which its vast assemblages of the people have been conducted.

These peaceful meetings had been supposed to have put to rest all questions as to whether large numbers could be allowed to meet at their will and pleasure, without any other control than their own good sense and loyal feelings, which it has been thought would always lead every class of the community to consider the subversion of public order as a heavy calamity to honest men, and only to be desired by plunderers and incendiaries. And so long as these congregations appeared to hold any lawful object in view, however wild or unreasonable — indeed, so long as their objects remained in doubt — so long did the magistracy of this borough do quite right not to interpose any obstacle to their fellow-townsmen assembling together ; whether the grievances which they proposed to themselves to discuss were real or imaginary. But when it became clear to all eyes that the only intention and effect of those meetings, so frequently repeated, was to disturb and overawe the loyal inhabitants of the town, whose comfort was destroyed, and whose safety was endangered, the just limits of toleration were passed. The magistrates had to choose between forbearance to the disaffected and tumultuous on the one hand, and on the other that support which they were sworn to give to the peaceful and unoffending who claimed their protection. In such a state of things, forbearance, far from being a virtue, would have become a crime. The magistrates, therefore, have acted as became the upholders of the law in calling in the aid of an armed force to restore and preserve the peace of the borough ; and notice and admonition having proved unavailing, they were bound to employ that force with promptitude and vigour.

On this topic I shall say no more, for the sufficient reason that some persons are in custody awaiting their trial upon charges founded on their alleged conduct on the occasions to which I have referred. It would ill become me, and would argue a strange forgetfulness of my duty, to utter a single word which could operate to deprive such persons of a fair trial ; which, as it is the highest boast of Englishmen that all persons accused should enjoy, so it is peculiarly incumbent on me, filling the seat of justice, to be cautious that nothing falling from my lips should in the least degree impair. But I must be allowed.

in quitting the subject, to express my deep regret, and the bitter humiliation I feel, that the first introduction of trial by jury into the town of Birmingham should be made unhappily memorable by the circumstances under which I am now speaking ; by the necessity in which I now find myself of sitting under the protection of the sword : but to this unhappy necessity we must all submit. To my feelings as a lawyer, and an admirer of our constitution, nothing can be more abhorrent than that the administration of justice should be carried on in the presence of a military array. In common with yourselves I am imbued to the full with jealousy of military interference. In the administration of justice, soldiers, under pretence of guarding the ministers of the law from outrage, have been employed in some periods of our history to overawe their proceedings; their attendance, therefore, is never permitted except when required by an overwhelming necessity, to which all rules must give way. Meanwhile our care must be to perform our duties, forgetting as much as possible the untoward circumstances under which we meet.

I can scarcely suppose that the gentlemen whom I am addressing, many of whom I have known from my earliest youth — that men, filling your eminent position in the borough, and feeling, as I know you all do, sincere and ardent interest in its welfare, can have witnessed the change which our Queen has wrought in granting her charter of incorporation, and in commanding me to hold my sessions in your town, without having your minds directed to the reasons for the course which has been taken, and to the benefits which may be expected to flow from this application of the great maxim of our jurisprudence, that, ' Justice ought to be brought home to every man's door/

The consideration of these questions, as might be expected, has much occupied my own mind; and as principles are involved in them which will have a practical bearing on your duties and mine, — on your duties as persons of influence among your fellow-townsmen as well as in your present capacity, — I shall proceed to offer such remarks as it has occurred to me might be profitably submitted to your attention.

That crime will be repressed in proportion to the certainty of the detection and punishment of the criminal, is an obvious truth. And experience has at length taught us, that a certain punishment, though slight, is far more effectual to deter from crime, than the terror of the heaviest penalty that man can 4 inflict where the chances of escape are numerous.

Much has been done of late years to make a nearer approach to certainty of punishment. Formerly, the whole expense of prosecutions fell on the injured party, who, having suffered once from the inability of the public to protect him, was made to suffer again, and often with much greater severity, that he might protect the public.

It is easy to see that so heavy a tax on prosecutions must have operated as a bounty to crime. Defraying the expenses from a public fund has greatly diminished this evil; but it is quite evident that, unless prosecutors and witnesses were remunerated to an amount which might furnish a motive to fabricate charges against the innocent (to say nothing of the burthens which would be accumulated on the ratepayer), much loss and inconvenience must still fall on individuals taken frem their occupations and detained at a place remote from their dwellings. Nor would money, however lavishly expended, be in all cases a compensation for this enforced absence.

To remove every motive to supineness in the injured party — to relieve him and his witnesses in the performance of a public duty from unnecessary sacrifice — it is indispensable that he should find the seat of justice at hand. And to the prisoner, if innocent, the benefit of being tried on the spot where the offence is alleged to have been committed must be equally clear.

It has often occurred to me to hear a poor and ignorant man, who has been carried to a distance from the scene of his imputed crime, and of necessity, therefore, separated from his friends, fixed as they were by poverty to the spot where they lived, asked if he had any witnesses on his behalf. His answer has painfully struck upon my ear ; — he has said, ' I have witnesses, but I have no money to bring them before you/ In Belgium, the cost of the witnesses for the prisoner is paid by the public. It is not easy to find a satisfactory reason for our English practice ; but we clearly diminish its evils when we bring the accused to trial on the spot where his witnesses may be expected to be found.

Gentlemen, although I have put the advantages to the innocent prisoner last in order, they stand first in my estimation.

That the administration of the law should be the administration of justice) is the most sacred of human duties. The fearful power assumed by erring man to inflict pain and disgrace on his brother, can only be justified when, feeling his awful responsibility, and conscious of the imperfection of his faculties, he spares nothing within the compass of his means to judge according to the truth. God forbid that to ensure the destruction of the guilty, we should put to peril the safety of the innocent.

And, Gentlemen, if we could bring ourselves to act on a principle so abhorrent to the maxims of English law, and so revolting to the feelings of Christian men, how short-sighted would be our policy ! how miserable the attempt to repress crime by crime !

For on what, after all, are we to depend for upholding the law ? In the present state of things, assuredly not on punishing all offences. To that certainty of punishment, of which I have spoken, we have as yet made but distant approaches, for causes to which I shall presently advert.

If, therefore, the people of this country were only deterred from crime by fear of legal punishment, there is little reason why offenders should not multiply a hundredfold. But they are withheld by better motives ; and among them I give a high place to that veneration for the law which results from the confidence of the country in its just administration. To this confidence we owe the proud distinction, that here the people range themselves on the side of the law, while in many countries a prisoner is always treated by his fellow-subjects as a persecuted man, suffering from a tyranny only the more powerful and the more to be detested, because clothed with the forms and armed with the weapons of justice.

Long, Gentlemen, may this wholesome feeling remain among us ; but it can only be retained and perfected by a sincere determination to let no impression, however strong and however well-founded, of the mischiefs resulting from the escape of the guilty, produce the slightest bias on our minds against the prisoner,, or narrow by a single hair's breadth the full proof which the law demands.

And yet, Gentlemen, I should be much concerned if I could be supposed to think lightly of criminals escaping from justice. It is a grave misfortune : its example is most pernicious. One unjust acquittal may raise hopes of a career of impunity in the breasts of hundreds exposed to seduction. In short, Gentlemen, I hold the acquittal of the guilty only less to be deplored than the conviction of the innocent.

But there are better means of repressing crime than by wresting the rules of law against the accused. And this leads me to occupy your attention for a short time upon the present state of crime in this country, so far as our scanty materials enable us to frame an estimate of its nature and extent. This done, we shall see more clearly the means for its repression.

By far the greater number of offences which are found in our calendars are offences against property. This alone, if other evidence were wanting, would prove, what indeed is notorious, the existence of a class of persons who pursue crime as a calling, and are not led astray by casual temptation, or by temporary indulgence of the passions. The numbers of this class it is impossible to assign with accuracy. From the best information I am able to obtain, I cannot place it much lower for England and Wales than a hundred thousand. The greater number of these unhappy persons are engaged in petty thefts. Those who are best acquainted with their habits, and who know how small a part of the value of what they steal they are able to retain for themselves, are of opinion that each one must, on the average, commit several offences per day to be maintained in the manner in which they are known to live. It is also found that, before the thief is finally withdrawn from society by transportation or death, his course of depredation extends over several years. These general facts, which are well ascertained, show how great must be the number of offences which are never detected, or, at all events, never prosecuted, as compared with those which find their way into our calendars, and are treated in most of our statistical tables as if they comprised the total amount of offences committed. How fallacious it must be to confound the number of convictions with the number of offences committed has been established by a valuable document published in the Report of the Commissioners for inquiring as to the best means of forming an efficient Constabulary Force.

The paper to which I refer is a table showing the number of forged notes presented at the Bank of England, and the number of convictions for the forgery of bank notes, between the years 1805 and 1837; and I find the proportion of convictions compared with that of offences was as i to 164. Now when it is recollected that the uttering of forged notes is the most difficult of all offences to commit with impunity, inasmuch as it cannot be done in secret, and behind the back of the injured party, it will be felt that if the proportion of forgeries committed with impunity is so large, that of thefts which escape detection must be much larger. It is equally clear that, while these proportions remain unchanged, it is vain to hope that the terrors of the law will avail to prevent those who follow depredation as a calling from being a numerous, and, in one sense, a flourishing class of the community. When, however, the public mind shall be practically conscious of the facts to which I have adverted, and in consequence shall withhold its sympathy from a prisoner, though for the first time convicted, if he shall appear to have resorted to depredation as a stated means of livelihood, then something may be done towards diminishing the numbers of the class, by permanently withdrawing the criminal upon his first sentence from his career of crime ; either by transportation, or by imprisonment for a long term, whenever the discipline of our prisons shall be so far improved as to make them places where their inmates may be reformed, instead of more deeply corrupted.

But no change in the sentences of prisoners, or in the discipline of prisons, will avail to destroy, or in a very large proportion to lessen, this class, until by a more perfect system of police, and by a greater alacrity among prosecutors, the number of offences escaping detection and prosecution shall be diminished in a manifold ratio. Upon the ignorant and hardened thief conscience has no hold. The danger of his calling he looks upon as the necessary price of its pleasures ; the applause of his associates stands him in the place of reputation. Even death upon the gallows, which is thus to his mind stripped of disgrace, he regards with feelings akin to those of the soldier looking forward to the perils of honourable war. Nothing, therefore, but such a multiplying of the risks of detection for each offence, as shall render it impossible to ply his trade, will break up his class. And to aid, as far as his means will allow, in this good work, is the duty of every man, and in an especial manner of persons like yourselves, who, by your position in society, are possessed of power and influence. Birmingham has long been favourably distinguished from many other towns by the comparative excellence of its police : certain members of that body I have known for many years, and can bear testimony to the value of their services. But their force is too small. Though much has been done, much remains to do. The staple manufactures of the town being in metals, temptations to dishonesty are of necessity more numerous here than in many other places. They fall, too, on persons of tender age, often ill instructed to withstand them. They are held forth by the most cunning and nefarious of all the predatory classes — I mean the receivers of stolen goods. When these things are well considered — the loss of property, and the feeling of insecurity among the honest part of society, the degradation and misery of the guilty — then will the great subject of the repression and prevention of crime expand in every mind to its due measure of importance. Nor will the means of repressing crime be crippled, I am persuaded, by a false economy; for even contracting our views to a mere question of expense, it will not be forgotten that a depredator at large is maintained by society, and maintained in a most expensive manner. His prison must indeed be badly managed if he do not cost the country far more when at liberty than when in confinement.

These remarks have done little towards exhausting the sub*^ ject. I have only touched on the means of repressing crime by acting on the criminal. The means of preserving the honest from falling into the snares of vice — the diffusion of knowledge —the formation of virtuous habits by moral and religious training— these are topics on which I must resist the temptation to enlarge. The inhabitants of Birmingham have not been wanting in their attention to these important duties. This I well know ; for, having spent my youth in this my native town, and having, in some small degree, assisted in the labours of your Sunday-schools, I can testify to their zeal and perseverance. What they have done will convince them better than any words of mine both of the value of their labours and of the necessity for still further extending them. For it is to education, in the " large and true meaning of the word, that we must all look as the means of striking at the root of the evil. Indeed, of the close io Charge of July, 1839.

connexion between ignorance and crime, the calendar which I hold in my hand furnishes a striking example. Each prisoner has been examined as to the state of his education, and the result is set down opposite his name. It appears, then, that of forty-three prisoners, only one can read and write well. The majority can neither read nor write at all; and the remainder, with the solitary exception which I have noted down, are said to read and write imperfectly; which necessarily implies that they have not the power of using these great elements of knowledge for any practical object. Of forty-three prisoners, fortytwo then are destitute of instruction ; and what the one remaining individual has been taught probably comprehends no more of education than the ploughing and harrowing of the soil does of agriculture. There can be no harvest without these introductory labours, it is true ; but neither will they alone produce the crop.