G.o.d forbid that the Author of these pages should do so much violence to his own feelings, as to convey an idea hostile to the extension of that amiable Prerogative vested in the Sovereign; and which His Majesty has exercised with a benevolent regard to the feelings of Humanity, and a merciful disposition truly characteristic of the mind of a great and good King.

These animadversions are by no means pointed against the exercise of a privilege so benign, and even so necessary, in the present state of the Criminal Law;--they regard only the impositions which have been practised upon so many well-intentioned, respectable, and amiable Characters, who have, from motives of humanity, interested themselves in obtaining _free pardons for Convicts_, or _pardons on condition of going into the Army or Navy_.

If these humane individuals, who exert themselves in applications of this sort, were to be made acquainted with one half of the gross impositions practised upon their credulity, or the evil consequences arising to Society from such pardons, (particularly unconditional pardons) they would shudder at the extent of the cruelty exercised towards the Public, and even, in many instances, to the Convicts themselves, by this false humanity.

In a Country, where, from the great caution which mingles in that part of the Criminal Jurisprudence which relates to the trial of Offenders,--it is scarcely possible that an honest or an innocent person can be convicted of a capital offence.[136]--It would seem to be a good criterion, that the Royal Mercy should only be extended on two indispensable conditions.

[Footnote 136: It is not here meant to say there have not been some instances, and even one of a recent date, where an innocent man may be convicted; but they are certainly very rare, and when discovered, the Royal mercy, of course, relieves the unfortunate person.]

1. _That the Convict under sentence of death should, for the sake of Public Justice, (and to deter others from the commission of crimes) discover all his accomplices, and the robberies, or other crimes he has committed._

2. _That he should be transported; or make retribution to the parties he has injured by being kept at hard labour for life; or until ample security shall be given for good behaviour after such retribution is made._

The precaution not having been used of knowing _for certain_, before pardons were granted, whether the parties were fit for His Majesty's service or not; the Convicts themselves carefully concealing every kind of bodily infirmity;--and the pardons containing no eventual condition of ultimate Transportation, in case the persons should be found unfit for the Army or Navy;--the result has been, that many Convicts, who have been since actually Thieves upon the Town, were almost instantly thrown back upon the Public.--Some, even before they were attested by the Magistrate, in consequence of the discovery of bodily incapacity; and others, in a very short time after they had gone into His Majesty's Service, from the like unfitness being discovered; from some artful device practised to procure a discharge--or from desertion.--A professed Thief is never deficient in that species of artifice and resource which is necessary to rid him of any inc.u.mbrance.

This, however, is seldom taken into the calculation when Humanity urges philanthropic Characters to interest themselves in behalf of Criminals; nor could it perhaps otherwise have been known, or believed, that so many of these outcasts of Society have found means again to mingle with the ma.s.s of the people.

What impression must these facts make on the intelligent mind!--will they not warrant the following conclusion?

1. That every individual, restored to Society in this way, is the means of affording a species of encouragement, peculiarly calculated to bring others into the same dreadful situation, from which the unhappy Convict is thus rescued.

2. That for this reason every pardon granted, without some lesser punishment, or removing the convicts from Society, is a link broken in the chain of justice, by annihilating that united strength which binds the whole together.

3. That by removing the terror of punishments by frequent pardons, the design of the Law is rendered in a great measure ineffectual; the lives of persons _executed_ are thrown away, being sacrificed rather to the vengeance of the Law than to the good of the Public; and no other advantage is received than by getting rid of one thief, whose place, (under present circ.u.mstances,) will speedily be supplied by another.[137]

[Footnote 137: That able and excellent Magistrate, the late Henry Fielding, Esq. (to whose zeal and exertions in the exercise of the duties of a Justice of the Peace, in the Metropolis, the Public were under infinite obligations)--manifested, half a century ago, how much he was impressed with the injuries arising from frequent pardons.--Those who will contemplate the character and conduct of this valuable man, as well as that of his brother, the late Sir John Fielding, will sincerely lament that their excellent ideas, and accurate and extensive knowledge upon every subject connected with the Police of the Metropolis, and of the means of preventing crimes, were not rendered more useful to the Public. It is to be hoped, however, that it is not yet too late, since the state of Society, and the progress and increase of crimes, call loudly for the establishment of a responsible preventive System.]

Nothing can sanction the punishment of death for crimes short of murder, _but the terror of the example operating as the means of prevention_.--It is upon this principle alone that one man is sacrificed to the preservation of thousands.--Executions, therefore, being exhibited as seldom as a regard to the public interest really required, ought to be rendered as _terrific_ and _solemn_ to the eyes of the people as possible.

The punishment now in use, considered in point of law to be next to that of deprivation of life, is _Transportation_.

It has been already mentioned that Parliament authorized this species of punishment in the year 1718--when the general plan of sending Convicts to the American Plantations was first adopted. This System continued for 56 years; during which period, and until the commencement of the American War in 1775, great numbers of Felons were sent chiefly to the Province of Maryland. The rigid discipline which the colonial Laws authorized the masters[138] to exercise over servants, joined to the prospects which agricultural pursuits, after some experience was acquired, afforded to these _Outcasts_, tended to reform the chief part; and after the expiration of their servitude, they mingled in the Society of the Country, under circ.u.mstances highly beneficial to themselves and even to the Colony. Possessed in general (as every adroit thief must be) of good natural abilities, they availed themselves of the habits of industry they acquired in the years of their servitude--became farmers and planters on their own account; and many of them, succeeding in these pursuits, not only acquired that degree of respectability which is attached to property and industry; but also in their turn became masters, and purchased the servitude of future Transports sent out for sale.[139]

[Footnote 138: By the Acts 4 George I. c. 11, and 6 George I. c. 23, the persons contracting for the transportation of convicts to the Colonies, or their a.s.signs, had an interest in the service of each, for seven or fourteen years, according to the term of transportation.]

[Footnote 139: For some years previous to the commencement of the American War, the adjudged services of convicts became so valuable in Maryland, that contracts were made to convey them without any expence whatsoever to Government, who had formerly allowed 5_l._ a head; for the reasons already a.s.signed, they generally were more adroit, and had better abilities than those who voluntarily engaged themselves to go to America.]

The Convicts having acc.u.mulated greatly in the year 1776, and the intercourse with America being shut up, it became indispensably necessary to resort to some other expedient; and in the choice of difficulties the System of the _Hulks_ was suggested, and first adopted under the authority of an Act of the 16th of his present Majesty.

The Legislature, uncertain with regard to the success of this new species of punishment, and wishing to make other experiments, by an Act of the same Session,[140] empowered the Justices of every county in England to prepare Houses of Correction for the reception of Convicts under sentence of death, to whom his Majesty should extend his Royal Mercy, to be kept at hard labour for a term not exceeding ten years.

[Footnote 140: 16 George III. cap. 43, sect. 1st, 3d, and 11th.]

The same Act, among many other excellent regulations, ordered the Convicts to be kept separate, and not allowed to mix with any offenders convicted of crimes less than Larceny--and that they should be fed with coa.r.s.e inferior food, water, and small beer, without permission to have any other food, drink, or cloathing, than that allowed by the Act, under certain penalties:--they were to be clothed at the public expence.

And as an encouragement to these delinquents, while such as refused to work were to receive corporal punishment, those who behaved well had not only the prospect held out of shortening the period of their confinement, but also were to receive decent clothes, and a sum of money not less than _forty shillings_, nor more than _five pounds_, when discharged.

This well-intentioned Act[141] (which certainly admits of many improvements), was followed up, three years afterwards, by another Statute, (19 Geo. III. cap. 74,) which had two very important objects in view.

[Footnote 141: An enormous expence has been incurred in building Penitentiary-Houses in various Counties, and many philanthropic individuals have exerted their best endeavours to carry this Act into execution; but it is to be lamented, that crimes have been by no means diminished. The fact is, that the System is erroneous--Responsibility is no where established.--No uniformity of System prevails, and no general superintendance or center point exists.--Like the Poor Laws, the only part of the Act which is rigidly carried into execution is raising a fund, which, without imputing blame to Magistrates (for the error is in the System), has increased the expence of this branch of the Police of the Country very far beyond what could have been conceived--and it now becomes a heavy burden upon many of the Counties.--The reform began at the wrong end.--The same expence applied in establishing a System of Preventive Police, ought to render numerous penitentiary houses in a great measure unnecessary.]

The first was to erect, in some convenient common or waste ground, in either of the counties of _Middles.e.x_, _Ess.e.x_, _Kent_, or _Surry_, _Two large Penitentiary Houses_, the one to hold 600 _male_, and the other 300 _female Convicts_, with proper _storehouses_, _workhouses_, and _lodging-rooms_; an _infirmary_, _chapel_, and _burying-ground_; a _prison_, _kitchen_, _garden_, and _air-grounds_: with proper _offices_, and other _necessary apartments_.

The expence of these grounds and erections was to be paid out of the treasury; and his Majesty was empowered to appoint three persons as a Committee of Management for regulating the Establishment; under the controul of the Justices of the Peace of the County, and Judges of a.s.size, with power to appoint a _clerk_, _governor_, _chaplain_, _surgeon_, or _apothecary_, _store-keepers_, and _task-masters_; and also a _matron_ for the females;--and to allow salaries to each, which were to be paid out of the profits of the work, to be performed by the Convicts.

As soon as the buildings should be completed, the Court, before whom any person was convicted for a transportable offence, might, in lieu thereof, order the prisoner to be punished by confinement, in any of these Penitentiary Houses, there to be kept to hard labour in the proportion of 5 _years_ instead of 7 _years' transportation_, and not exceeding 7 years in lieu of 14 _years' transportation_; limiting at the same time the number of Convicts to be sent annually from the Circuits in the Country, and from the different Sessions in the Metropolis.

This Act lays down various specific rules for the government of the Establishment, and for the employment of the Prisoners; and the following works, as being of the most servile kind and least liable to be spoiled by ignorance, neglect, or obstinacy, are selected, namely--

1. Treading in a wheel for moving machinery.

2. Drawing in a capstan, for turning a mill or engine.

3. Sawing stone 4. Polishing marble 5. Beating hemp 6. Rasping logwood 7. Chopping rags 8. Making cordage 9. Picking oak.u.m 10. Weaving sacks 11. Knitting nets, &c. &c.

The food of the different offenders, as in the former Act, was limited to bread and any coa.r.s.e meat, with water and small beer; and the Prisoners were to be cloathed in uniform apparel, with badges affixed, agreeable to the Inst.i.tution.

Certain other rules were established for the discipline of the house, under the direction of the Committee to be appointed by his Majesty; who were to attend every fortnight, and to have power to reward such offenders as should appear most diligent and meritorious, by giving them a part of their earnings, to be applied for the use of themselves end families.

And when an offender should be discharged, decent clothing was to be delivered to him; with a sum of money for present subsistence, not less than _twenty shillings_, nor more than _three pounds_.

The second purpose of this Act (and which is the only part of it which was ever carried into effect), regards _the continuation of the System of the Hulks_.

It declares that for the more effectual punishment of atrocious male offenders liable to be transported, the Court may order such Convicts as are of proper age, and free from bodily infirmity, to be punished by being kept on board ships or vessels; and employed in hard labour in raising sand, soil, and gravel, and cleansing the River Thames, or any other river, or port, approved by the Privy Council; or in any other works upon the banks or sh.o.r.es of the same, under the direction of superintendants approved of by the Justices, for a term not less than _one_ year, nor more than _five_; except an offender be liable to transportation for 14 years, in which case his punishment may be commuted for 7 years on board the Hulks.

The mode of feeding is the same as already explained, and the clothing is to be at the discretion of the superintendant. A similar discipline, varied only by local circ.u.mstances, is also established; and on the discharge of any of the convicts, they are to receive for present subsistence from 20_s._ to 3_l._ according to circ.u.mstances.

The concluding part of the Act obliges the governors and superintendants of the two Establishments to make annual returns to the Court of King's Bench: and also authorizes his Majesty _to appoint an Inspector of the two Penitentiary Houses, of the several vessels or hulks on the River Thames, and of all the other gaols and places of criminal confinement within the City of London and County of Middles.e.x_; these Inspectors are personally to visit every such place of confinement at least once a quarter, to examine into the particulars of each, and to make a return to the Court of King's Bench, of the _state of the buildings--the conduct of the officers--treatment of the prisoners--state of their earnings and expences_--and to follow up this by a report to both Houses of Parliament, at the beginning of each Session.

It is much to be lamented that neither of these two salutary Acts, so far as regarded _National Penitentiary Houses_, which seemed to hold out so fair a prospect of employing convicts, in pursuits connected with _productive labour_, _industry_, and ultimate _reformation_, without sending them out of the kingdom, have been carried into execution. In the year 1784, the System of Transportation was again revived, by the Act of the 24th Geo. III. Stat. 2. cap. 56; "which empowers the Court, before whom a male Felon shall be convicted, to order the prisoner to be transported beyond seas, either within his Majesty's dominions or elsewhere; and his service to be a.s.signed to the contractor who shall undertake such transportation."

The same Act continues the System of the Hulks for a further length of time; by directing the removal of Convicts, under sentence of death, and reprieved by his Majesty, and also such as are under sentence of Transportation (being free from infectious disorders) to other places of confinement, either inland, or on board of any ship or vessel in the river Thames, or any other navigable river; and to continue them so confined until transported according to law, or until the expiration of the term of the sentence should otherwise ent.i.tle them to their liberty.

This plan of Transportation, through the medium of contractors, although some Felons were sent to Africa,[142] does not appear to have answered; from the great difficulty of finding any situation, since the Revolution in America, where the service of Convicts could be rendered productive or profitable to Merchants, who would undertake to transport them; and hence arose the idea of making an Establishment for these outcasts of Society in the infant colony of New South Wales, to which remote region it was at length determined to transport atrocious offenders.--Accordingly, in the year 1787, an Act pa.s.sed, (27 Geo. III. cap. 2,) authorizing the establishment of a Court of Judicature for the trial of offenders who should be transported to New South Wales.

[Footnote 142:

In 1785, George Moore, Esq. received for transporting convicts .1,512 7 6

John Kirby for expences 540 19 4

1786, John Kirby; further expences 578 10 1

Anthony Calvert for Transportation 286 14 0

Thomas Cotton, Esq. Cloathing, &c. 303 2 7 ------------ .3,721 13 6[F]]

[Footnote F: See Appendix (L. i.) to the 28th Report of Select Committee on Finance.]

Another Act of the following year, (28 Geo. III. cap. 24,) empowered his Majesty, under his Royal Sign Manual, to authorize any person to make contracts for the Transportation of offenders, and to direct to whom security should be given for the due performance of the contract.