These five inferior Courts of Justice take cognizance of Petty Larcenies, Frauds, Assaults, Misdemeanors, and other offences punishable by fine, imprisonment, whipping, and the pillory:—and in certain cases, the power of the Justices extends to transportation.

The higher and more atrocious offences committed in London and Middlesex, are tried at the Justice-Hall, in the Old Bailey; by a special commission of Oyer and Terminer to the Lord Mayor, and a certain number of the Judges, with the Recorder and Common Serjeant of the City of London.

Offences of this latter degree of atrocity, perpetrated in that part of the Metropolis which is situated in the Borough of Southwark and County of Surry, are tried at the assizes, held twice a year at Kingston-upon-Thames, Croydon, or Guildford.[124]

Thus it appears, that five inferior and two superior Tribunals of Justice are established for trying the different crimes committed in the Metropolis.

As it may be useful, for the purpose of elucidating the suggestions already offered upon this branch of the subject, that a connected view of the result of these Trials should make a part of this Work;—the following Abstract, (including the discharges of Prisoners by Magistrates) has been made up for this immediate purpose: from authentic documents obtained from the keepers of the eight different prisons and houses of correction in the city of London, and in the counties of Middlesex and Surry.

It applies to the period, from September, 1794, till September, 1795, which is chosen as a sort of medium between Peace and War.

It is impossible to contemplate this collected aggregate of the prisoners annually discharged upon the Public, without feeling a strong anxiety to remedy an evil rendered extremely alarming, from the number which composes the dismal catalogue of Human Depravity.

Every inquiry in the progress of this Work proves a radical defect somewhere.

While the public tribunals are filled with Judges, the purity of whose conduct adds lustre to their own and the national character, why should not every subordinate part of the Criminal Jurisprudence of the Country be so organized, as to co-operate, in the greatest possible degree, with the efforts of those higher orders of the Magistracy in accomplishing the purposes of substantial justice?

Nothing could tend more to promote this object, than the appointment already proposed of a Public Prosecutor for the Crown.

An institution of this kind would terrify the hordes of miscreants now at open war with the peaceable and useful part of the Community, in a greater degree than any one measure that could possibly be adopted.

It would be the means of destroying those hopes and chances which encourage criminal people to persevere in their depredations upon the Public.

A Summary View of the Prisoners committed, tried, punished, disposed of, and discharged in the Metropolis, in One Year, ending in October, 1795.

[To face page 430.]

It would not only remove that aversion which Prosecutors manifest on many occasions, to come forward, for the purpose of promoting the ends of public justice; but it would prevent, in a great measure, the possibility of compounding felonies, or of suborning witnesses.[125]

It would also be the means of counteracting the various tricks and devices of old thieves; and occasion an equal measure of Justice to be dealt out to them, as to the novices in crimes:—It would do more,—It would protect real innocence,—for in such cases the Public Prosecutor would never fail to act as the friend of the prisoner.

The prevailing practice in criminal trials, in the true spirit of mildness and humanity, induces the Judge to act in some degree as counsel for the prisoner.—Without a Prosecutor for the Crown, therefore, every trifling inaccuracy in the indictment is allowed to become a fatal obstacle to conviction;[126] circumstances which would frequently throw great light upon the charges, are not brought under the review of the jury, and thus public justice is defeated.

Upon an average, the Magistrates of the Metropolis commit annually, (out of many times that number who are equally objects of punishment,) from about 2500 to 3000 persons, male and female, for trial, at the seven different Courts of Justice in and near the Metropolis; charged with a variety of felonies, misdemeanors, and other petty offences. But after fully convincing their own minds, from a careful, and in many instances, a most laborious investigation, that the parties are guilty, they are obliged, from experience, to prepare themselves for the mortification of seeing their labour and exertions in a great measure lost to the Community: the major part of these criminals being returned upon Society, without any effectual steps adopted for their reformation, or any means used for the prevention of a repetition of their crimes. A considerable proportion of this wretched number may have suffered perhaps a slight punishment for their demerits; but which produces no effect that is not ultimately mischievous to the Community; since it serves merely to initiate them, in a greater degree, in the knowledge and means of committing new acts of fraud and villainy.

To establish a System calculated to prevent criminals from returning to their evil practices after punishment is the very essence of good Police; but notwithstanding its importance to the Community, no measures have ever yet been adopted, calculated to attain so desirable an object.—It is however ardently to be hoped, that the period is fast approaching, when this great desideratum will be in a certain degree obtained; and that the suggestions offered in the subsequent Chapters, may tend to accelerate the renovation of this forlorn and miserable class of outcasts, by means of an appropriate Penitentiary System.

CHAP. XVI.

IMPERFECT in many respects as the criminal Law appears, from what has been detailed and stated in the preceding Chapters, and much as the great increase of capital offences, created during the last and present Century, is to be lamented:—it cannot be denied that several changes have taken place in the progress of Society, favourable to the cause of humanity, and more consonant to reason and justice, in the appropriation and the mode of inflicting punishments.

The Benefit of Clergy, which for a long period exempted clerical people only, from the punishment of death in cases of felony, was by several statutes[127] extended to peers, women, and all persons able to read; who, pleading their Clergy, suffered only a corporal punishment, or a year's imprisonment; and those men who could not read, if under the degree of peerage, were hanged.[128]

This unaccountable distinction was actually not removed until the 5th of Queen Anne, cap. 6, which extended the benefit of clergy to all who were intitled to ask it, whether they could read or not.[129]

In the course of the present century, several of the old sanguinary modes of punishment have been either, very properly, abolished by acts of parliament, or allowed, to the honour of humanity, to fall into disuse:—such as burning alive (particularly women) cutting off hands or ears, slitting nostrils, or branding in the hand or face; and among lesser punishments, fallen into disuse, may be mentioned the ducking-stool.

The punishment of death for felony (as has already been observed) has existed since the reign of Henry I. nearly 700 years.—Transportation is commonly understood to have been first introduced, anno 1718, by the act of the 4th George I. cap. 11; and afterwards enlarged by the Act 6th of George I. c. 23, which allowed the court a discretionary power to order felons who were by law entitled to their clergy, to be transported to the American plantations for seven or fourteen years, according to circumstances.[130]

Since that period the mode of punishment has undergone several other alterations; and many Crimes which were formerly considered of an inferior rank, have been rendered capital: which will be best elucidated by the following Catalogue of Offences, divided into six classes according to the Laws now in force.

The crimes mentioned in the first and second classes of the foregoing Enumeration (except Petty Larceny) are always tried by the Superior Courts:—The offences specified in the third class, as also Petty Larceny, and every species of misdemeanor and vagrancy, are generally tried, (with some few exceptions) by the Justices in their General and Quarter Sessions, where, in certain cases in Middlesex, they act under a commission of Oyer and Terminer. The Magistrates in Petty Sessions, and in several instances a single Magistrate, have also the power of convicting in a summary way, for a variety of small misdemeanors, and acts of vagrancy: and of punishing the delinquents with fine and imprisonment.

It generally happens in the Metropolis, that out of from 2000 to 2500 prisoners who are tried for different crimes, in the various Courts of Justice, above 5-6th parts are for larcenies, acts of vagrancy, and smaller offences; where the Benefit of Clergy, either attaches, or does not apply at all. The major part are, of course, returned upon Society, after a short imprisonment, or some corporal punishment, too frequently to renew their depredations on the public.—But a vast proportion (as has already been shewn) are always acquitted.[132]

In order to form a judgment of the proportion of the more atrocious offenders tried at the Old Bailey: the number acquitted; and the specific punishments inflicted on the different offences in case of conviction, one year has been selected; a year in which it was natural to expect from the immense, and indeed, unparalleled bounties which were given for seamen and soldiers, that the number of thieves and criminals would be greatly reduced,—namely—from the month of April, 1793, to the month of April, 1794,—including eight Sessions at the Old Bailey—

The following Table shews in what manner 1060 prisoners, put on their trials during that period, were disposed of.[133]

The Crimes for which the different Offenders were tried, were these following:

A TABLE, shewing the Prisoners tried at the Old Bailey, from April 1793, to March 1794, inclusive.

Thus it appears, that in London only, of 1060 prisoners, tried in the course of a year, only 493 were punished; of whom 197, after a temporary confinement, would return upon the Public, with little prospect of being better disposed to be useful to Society, than before.—It may be estimated that in all England, including those offenders who are tried at the County Sessions, upwards of five thousand individuals, charged with criminal offences, are thrown back upon Society every year.—

But this is not all,—for according to the present System, out of about two hundred and upwards who are, upon an average every year, doomed to suffer the punishment of death, four-fifths or more are generally pardoned[135] either on condition of being transported, or of going into His Majesty's service, and not seldom without any condition at all.

Hence it is, that, calculating on all the different chances, encouragements to commit crimes actually arise out of the System intended for their prevention:—first, from the hope of avoiding detection and apprehension;—secondly, of escaping conviction, from the means used to vitiate and suborn the evidence;—thirdly, from the mercy of the Jury, in considering the punishment too severe;—and fourthly, from the interest of persons of rank or consideration, applying (under circumstances where humanity becomes the friend of every person doomed to die), for the interference of Royal Mercy, by Pardons.

God 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.