This system of criminal law is so concise as to be comprehended in less than one hundred octavo pages. It commences with laying down certain general principles, favourable in their nature both to humanity and public liberty.—In determining the Punishments (which will hereafter be very shortly detailed) the following rules are laid down for the Judges.

The offences are divided into seven different classes.

It is impossible, within the narrow compass of this Work, to enter into a particular detail of the various subdivisions of the Crimes and Punishments explained in this Code; which must be perused, in order to form a clear and comprehensive view of the subject. The following Specification therefore contains merely the heads or outlines of the System; which it is hoped may be found, from the mode of its arrangement, to convey to the reader both amusement and instruction.

ABSTRACT

OF

THE CRIMINAL CODE

OF THE

EMPEROR JOSEPH II.

Criminal Offences relative to the Sovereign and the State.

Criminal Offences against Human Life and Bodily Safety.

Criminal Offences against Honour and Liberty.

Criminal Offences against Possessions and Rights.

Civil Offences that endanger the Life or Health of the Citizen.

Civil Offences that affect the Fortunes and Rights of Citizens.

Civil Offences that tend to the Corruption of Morals.

In contemplating the various component parts of this Code, it is easy to discover that although some features of it may be worthy of imitation, upon the whole it is not suited either to the English constitution or the genius of our people. It is, however, a curious and interesting document, from which considerable information may be drawn; if ever that period shall arrive when a revision of our own criminal Code (in many respects more excellent than this) shall become an object of consideration with the Legislature.—At all events it strongly evinces the necessity of adapting the laws to the circumstances and situation of the Government; and of the people whose vices are to be restrained.

The total abolition of the Punishment of death (excepting in military offences cognizable by Courts Martial) is a very prominent feature in this Code; which appears to have been founded in a great measure on the principles laid down by the Marquis Beccaria, in his Essay on Crimes and Punishments: That able writer establishes it as a maxim, which indeed will scarcely be controverted—"That the severity of Punishment should just be sufficient to excite compassion in the spectators, as it is intended more for them than the criminal.—A punishment, to be just, should have only that degree of severity which is sufficient to deter others, and no more"—This authour further asserts, "That perpetual labour has in it all that is necessary to deter the most hardened and determined, as much as the punishment of death, where every example supposes a new crime:—perpetual labour on the other hand, affords a frequent and lasting example."[20]

Doubtless, the fundamental principle of good legislation is, rather to prevent crimes than to punish.—If a mathematical expression may be made use of, relative to the good and evil of human life, it is the art of conducting men to the maximum of happiness and the minimum of misery.

But in spite of all the efforts of human wisdom, aided by the lights of Philosophy, and freed from the mist of prejudice or the bigotry of darker ages;—In spite of the best laws, and the most correct system of Police which the most enlightened Legislature can form: it will not be altogether possible, amid the various opposite attractions of pleasure and pain, to reduce the tumultuous activity of mankind to absolute regularity:—We can only hope for a considerable reduction of the evils that exist.—Let the Laws be clear and simple;—let the entire force of the Nation be united in their defence; let the Laws be feared, and the Laws only.

CHAP. III.

IN a preceding Chapter the small thefts committed by persons not known to belong to the fraternity of Thieves, are estimated to amount to the enormous sum of £.700,000 a year.

This discovery (except what relates to embezzled silk, cotton, and worsted) was originally made through the medium of a considerable Dealer in Rags and Old Iron, and other Metals, who communicated to the Author much interesting information, respecting Receivers of stolen Goods, confirmed afterwards through other channels, the substance of which has been already alluded to; and of which the following are more ample details:

Thus are the lower ranks of Society assailed on all hands; and in a manner allured to be dishonest, by the ready means of disposing of property, unlawfully acquired, to satisfy imaginary and too frequently criminal wants, excited by the temptations which the amusements and dissipations of a great Capital, and the delusion of the Lottery, hold out.

The rapid growth of this Evil within the last twenty years, and the effect it has upon the morals of menial servants and others, who must in the nature of things have a certain trust committed to them, is a strong reason why some effectual remedy should be administered as speedily as possible.

It seems, under all circumstances, that the regulation of these Iron-shops, by licence, and by other restrictions connected with the public security, has become a matter of immediate necessity; for it is a dreadful thing to reflect that there should exist and grow up, in so short a period of time, such a body of criminal dealers, who are permitted to exercise all the mischievous part of the functions of Pawnbrokers; enjoying equal benefits, without any of the restrictions which have already been extended to this last class of dealers; who themselves also require further regulations, which will be hereafter discussed.

But beside the dealers in old iron, it will be necessary to extend the regulation proposed, to dealers in second-hand wearing apparel, whether stationary or itinerant; for through this medium also, a vast quantity of bed and table linen, sheets, wearing apparel, and other articles, pilfered in private families, is disposed of; and money is obtained, without asking questions, with the same facility as at the iron shops.

To prevent metals from being melted by Receivers of stolen Goods, and other persons keeping crucibles and melting vessels, by which means the most infamous frauds are committed, to the evasion of justice, by immediately melting plate, pewter pots, and every kind of metal that can be identified; it may be also necessary to regulate, by licence, all Founders of metal, and also the horse and truck carts used for the purpose of conveying old metals from place to place: so as, upon the whole, to establish a mild, but complete System of Prevention; by limiting the dealers in old metals and second-hand wearing apparel, to the honest and fair part of their trade, and by restraining them with regard to that which is fraudulent and mischievous.

At present these respective dealers may truly be said to be complete pests of Society.—They are not, like Pawnbrokers, restrained, as to the hours of receiving or delivering goods.—Their dealings are often in the night time, by which means they enjoy every opportunity of encouraging fraud and dishonesty.

It is impossible to contemplate the consequences arising from the seduction of so many individuals, young and old, who must be implicated in the crimes which these abominable receptacles encourage, without wishing to see so complicate and growing a mischief engage the immediate attention of the Legislature, that a remedy may be applied as early as possible.[21]

This System of petty thievery and general depredation is, however, by no means confined to the precincts of the Metropolis: it is extended in a peculiar manner through the different Counties in its Vicinity.—The following particulars, extracted from Mr. Middleton's View of the Agriculture of Middlesex, will enable the Reader to form some judgment of the extent of the mischief, and the causes from which it originates; producing and increasing that band of plunderers, of which the Metropolis itself has ultimately been at once the Nurse and the Victim.

"The funds raised for supporting the Idle Poor of this country (says this intelligent writer) are so numerous, efficient, and comfortable, as to operate against the general industry of the Labouring Poor.

"Lodging and diet in the workhouses, in every instance, are superior to what the industrious labourer can provide for his family. It is obvious that this must have an influence over their minds, and become most injurious to the interests of society; it holds out encouragement to prefer the workhouse to labour; and, by filling the poor houses with improper inhabitants, it reduces the amount of industry."

The annual expence of each pauper is calculated by the same Writer at about Fifteen Guineas; a stout healthy labourer in husbandry, with a wife and three children, earns only Thirty for the support of five persons.

"The want of prudence is increased, and general industry lessened, on the part of the poor, by the facility with which voluntary contributions are raised during every temporary inconvenience, such as a few weeks' frost, or an extraordinary advance in the price of provisions.[22] And also by the constantly cloathing upwards of ten thousand children of the labouring Poor in this Country.

"Every institution which tends to make the poor depend on any other support than their own industry does them great disservice, and is highly injurious to society, by diminishing the quantity of labour which annually produces consumable goods, the only wealth of a nation."

Although these suggestions may appear harsh, and some of them may admit of more extended discussion, yet they certainly deserve very serious consideration; as do also the following observations on the Commons and Waste Lands with which this kingdom still abounds; and on the general character of Servants and Labourers; the latter of which afford but too melancholy a confirmation of many opinions which the author of this treatise has thought it his duty to bring forward to the Public eye.

"On estimating the value of the Commons in Middlesex, including every advantage that can be derived from them in pasturage, locality of situation, and the barbarous custom of turbary, it appears that they do not produce to the Community, in their present state, more than four shillings per Acre! On the other hand, they are, in many instances, of real injury to the Public, by holding out a lure to the poor man; by affording him materials wherewith to build his cottage, and ground to erect it upon; together with firing, and the run of his poultry and pigs for nothing. This is, of course, temptation sufficient to induce a great number of poor persons to settle upon the borders of such Commons. But the mischief does not end here; for having gained these trifling advantages, through the neglect or connivance of the Lord of the Manor, it unfortunately gives their minds an improper bias, and inculcates a desire to live, from that time forward, without labour, or at least with as little as possible.

"The animals kept by this description of persons, it is soon discovered by their owners, are not likely to afford them much revenue, without better feed than the scanty herbage on a Common; hence they are tempted to pilfer corn, &c. towards their support; and as they are still dependant on such a deceptious supply, to answer the demands of their consumption, they are in some measure constrained to resort to various dishonest means, so as to make up the deficiency.

"It is a notorious fact, that in all cases cottages not having any ground belonging to them promote thieving to a great extent; as their inhabitants constantly rob the neighbouring farms and gardens of root and pulse sufficient for their own consumption, and which they would have no temptation to do, if they had the same articles growing of their own." Hence Mr. Middleton suggests the evil admits of an easy remedy, namely, the allotting to each cottager a piece of ground.

"Another very serious evil which the Public suffers from these Commons is, that they are the constant rendezvous of Gypsies, Strollers, and other loose persons, living under tents which they carry with them from place to place, according to their conveniency. Most of these persons have asses, many of them horses, nay, some of them have even covered carts, which answer the double purpose of a caravan for concealing and carrying off the property they have stolen, and also of a house for sleeping in at night. They usually stay a week or two at a place; and the cattle which they keep serve to transport their few articles of furniture from one place to another. These, during the stay of their owners, are turned adrift to procure what food they can find in the neighbourhood of their tents, and the deficiency is made up from the adjacent hay-stacks, barns and granaries. They are known never to buy any hay or corn, and yet their cattle are supplied with these articles of good quality. The women and children beg and pilfer, and the men commit greater acts of dishonesty. In short, the Commons of this Country are well known to be the constant resort of footpads and highwaymen, and are literally and proverbially a public nuisance."——

"The Labourers of this country are ruined in morals and constitution by the public houses. It is a general rule, that the higher their wages, the less they carry home, and consequently the greater is the wretchedness of themselves and their families. Comforts in a cottage are mostly found where the man's wages are low, at least so low as to require him to labour six days a week. For instance, a good workman at nine shillings per week, if advanced to twelve will spend a day in the week at the alehouse, which reduces his labour to five days, or ten shillings; and as he will spend two shillings in the public house, it leaves but eight for his family, which is one less than they had when he earned only nine shillings.

"If by any means he be put into a situation of earning eighteen shillings in six days, he will get drunk Sunday and Monday, and go to his work stupid on Tuesday; and should he be a mechanical journeyman of some genius, who by constant labour could earn twenty-four shillings or thirty shillings per week, as some of them can, he will be drunk half the week, insolent to his employer, and to every person about him.

"If his master has business in hand that requires particular dispatch, he will then, more than at any other time, be absent from his work, and his wife and children will experience the extreme of hunger, rags and cold.

"The low Inns on the road sides are, in general, receiving houses for the corn, hay, straw, poultry, eggs, &c. which the farmers' men pilfer from their masters.

"Gentlemen's Servants are mostly a bad set, and the great number kept in this county, is the means of the rural labourers acquiring a degree of idleness and insolence unknown in places more remote from the Metropolis.

"The poor children who are brought up on the borders of commons and copses, are accustomed to little labour, but too much idleness and pilfering. Having grown up, and these latter qualities having become a part of their nature, they are then introduced to the farmers as servants or labourers; and very bad ones they make.

"The children of small farmers, on the contrary, have the picture of industry, hard labour, and honesty, hourly before them, in the persons of their parents, and daily hear the complaints which they make against idle and pilfering servants, and comparisons drawn highly in favour of honesty. In this manner honesty and industry become, as it were, a part of the nature of such young folks. The father's property is small, and his means few; he is therefore unable to hire and stock a farm for each of his children; they consequently become servants on large farms, or in gentlemen's families, and in either situation are the most faithful part of such establishments."——

"One great hindrance to comfort in a life of agriculture, and which drives liberal minded men, who are always the best friends to improvement, out of the profession, is the want of laws to put a total stop to the Receivers of stolen goods. These are the wretches who encourage servants in agriculture, and others to pilfer, by holding out the lure of buying every article, which such servants can bring without asking them any questions. Most things which are usually produced on a farm, from so small an article as an egg, to hay, straw and grain of all sorts are daily stolen,[23] and sold on the sides of every principal road in this county. Among the Receivers are to be reckoned Millers, Cornchandlers, Dealers in eggs, butter and poultry, and the Keepers of Chandlers' shops.

"The Drivers of Gentlemen's carriages are intrusted to buy hay, straw, and corn, for their horses; in the doing which, they generally cheat their masters of 5s. in each load of hay, of 2s. 6d. in each load of straw, and 1s. in every quarter of corn. This gives them an interest in the consumption, makes them extremely wasteful, and brings on habits of dishonesty.

"The Ostlers at the Inns on the sides of the roads, purchase stolen hay, straw, corn, eggs, and poultry. A person who kept a horse several weeks at one of these inns, in attending occasionally to see the animal, discovered him to be fed with wheat, barley and oats mixed together, which could only happen by the farmers' servants robbing their Master, and selling the corn to the Ostler."——

"The fields near London are never free from men strolling about in pilfering pursuits by day, and committing great crimes by night. The depredations every Sunday are astonishingly great. There are not many gardens within five miles of London, that escape being visited in a marauding way, very early on a Sunday morning, and the farmers' fields are plundered all day long of fruit, roots, cabbages, pulse and corn. Even the ears of wheat are cut from the sheaves, and carried away in the most daring manner in open day, in various ways, but mostly in bags containing about half a bushel each. It has been moderately estimated, that 20,000 bushels of all the various sorts are thus carried off every Sunday morning, and 10,000 more during the other six days of the week; or one million and a half of bushels in a year, which, if valued at so small a sum as sixpence each, would amount to £37,500.

"The occupiers of many thousand acres round London, lose annually in this manner to the amount of much more than 20s. an acre.

"A Miller near London being questioned as to small parcels of wheat brought to his mill to be ground, by a suspected person, soon after several barns had been robbed, answered, that any explanation on that head would put his mills in danger of being burnt. Well may the farmers say, 'Their property is not protected like that of other men.'"

Mr. Middleton calculates that the depredations committed on the landed interest probably amount to 4s. an acre per annum, on all the cultivated lands in England, or to eight millions of pounds sterling per annum: and including the injuries done by game and vermin, he supposes, that the farmers' property suffers to the amount of 10s. an acre, or nearly twenty millions annually.

The following curious circumstances relative to the adulteration of Milk in the Metropolis, ought to be added to the list of petty frauds, which not merely affect the pockets but the health of the inhabitants of London. The number of milch cows kept for the purpose of supplying the Metropolis with this article, is stated by Mr. Middleton, after very diligent inquiry, at 8,500; and each cow is supposed to afford on an average nine quarts of milk per day.—

"When the families of fashion are in London for the winter season, the consumption, and consequent deterioration of milk are at the highest; during the summer months, when such families are for the most part in the country, the milk may probably be of rather a better quality.

"The milk is always given in its genuine state to the retail dealers; and as it is sold to them by the Cow-keepers after the rate of twopence and 1-8th of a penny per quart, and is retailed by them at threepence halfpenny per quart, the profit is surely so large as ought to prevent even the smallest adulteration. But when it is considered how greatly it is reduced by water, and impregnated with worse ingredients, it is much to be lamented that no method has yet been devised to put a stop to the many scandalous frauds and impositions in general practice, with regard to this very necessary article of human sustenance.

"It is certainly an object well deserving the particular consideration of the Legislature. It cannot be doubted, that many persons would be glad to make some addition to the price now paid for it (high as that price is) provided they could, for such increased price, procure so useful an article in domestic œconomy perfectly genuine.[24]

"Five or six men only are employed in attending near three hundred cows. As one woman cannot milk above eight or nine cows twice a day, that part of the business would necessarily be attended with considerable expence to the Cow-keeper, were it not that the Retailer agrees for the produce of a certain number of cows, and takes the labour and expence of milking on himself.

"Every Cow-house is provided with a milk-room (where the milk is measured and served out by the Cow-keeper) and this room is mostly furnished with a pump, to which the Retail Dealers apply in rotation; not secretly, but openly before any person that may be standing by, from which they pump water into the milk vessels at their discretion. The pump is placed there expressly for that purpose, and indeed is very seldom used for any other. A considerable Cow-keeper in Surrey has a pump of this kind, which goes, by the name of the Famous Black Cow (from the circumstance of its being painted black) and is said to yield more than all the rest put together.

"Where such a pump is not provided for them things are much worse, for in that case the Retailers are not even careful to use clean water. Some of them have been seen to dip their pails in a common horse-trough. And what is still more disgusting, though equally true, one cow-house happens to stand close to the edge of a stream, into which runs much of the dung, and most of the urine of the cows, and even in this stream, so foully impregnated, they have been observed to dip their milk-pails.

"A Cow-keeper informs me, that the Retail Milk Dealers are for the most part the refuse of other employments, possessing neither character, decency of manners, nor cleanliness.

"No person could possibly drink of the milk, were they fully acquainted with the filthy manners of these dealers in it.

"The same person suggests, as a remedy for these abuses, that it would be highly proper for every Retail Milk Dealer to be obliged to take out an Annual Licence from the Magistrates; which licence should be granted only to such as could produce a certificate of good conduct, signed by the Cow-keeper and a certain number of their customers; and also on their being sworn to sell the milk pure and unadulterated."

CHAP. IV.