There is no part of a Judge's duty which is more important or more difficult than apportioning the punishment to the particular circumstances of a conviction. As an illustration of this statement I would take the offence of bigamy, where in the one case the convicted person would deserve a severe sentence of imprisonment, while in another case he or she might be set at liberty without any punishment at all. Such cases have occurred before me.

The sentence of another Judge upon another prisoner ought not to be followed, for each prisoner should be punished for nothing but the particular crime which he has committed. For this reason the case of each individual should be considered by itself.

I dislike, also, the practice of passing a severe sentence for a trifling offence merely because it has been a common habit in other places or of other persons. For instance I have known five years of penal servitude imposed for stealing from outside a shop on a second conviction, when one month would have been more than enough on a first conviction, and two or three months on a second conviction. For small offences like these the penalty should always be the same in character—I mean not excessive imprisonment, and never penal servitude. As often as a man steals let him be sent to prison, and it may be for each offence the time of imprisonment should be somewhat slightly increased, but not the character of the punishment.

Years ago, in my Session days, I remember a poor and, I am afraid, dishonest client of mine being transported for life (on a second conviction for larceny) for stealing a donkey; but I doubt if that could happen nowadays. It seems incredible.

Nobody who has carefully noted the innumerable phases of crime which our criminal courts have continually to deal with, and the infinite shades of guilt attached to each of those crimes, will fail to come to the conclusion that one might as well attempt to allocate to its fitting place each grain of sand, exposed to the currents of a desert and all other disturbing influences, as endeavour by any scheme or fixed rule to determine what is the fitting sentence to be endured for every crime which a person can be proved, under any circumstances, to have committed.

The course I adopted in practice was this. My first care was never to pass any sentence inconsistent with any other sentence passed under similar circumstances for another though similar offence. Then I proceeded to fix in my own mind what ought to be the outside sentence that should be awarded for that particular offence had it stood alone; and from that I deducted every circumstance of mitigation, provocation, etc., the balance representing the sentence I finally awarded, confining it purely to the actual guilt of the prisoner.

I have noticed that burglaries with violence are rarely committed by one man alone, and that when two or more men are concerned in a murder, one or more of them being afraid that some one, in the hope of saving himself from the treachery of others, is anxious to shift the whole guilt of the robbery, with its accompanying violence, on to the shoulders of his comrades. It is well that this should be so, and that such dangerous criminals should distrust with fear and hatred their equally guilty associates.

Except for special peremptory reasons, I never passed sentence until I had reconsidered the case and informed my own mind, to the best of my ability, as to what was the true magnitude and character of the offence I was called upon to punish.

The effect of such deliberation was that I often mitigated the punishment I had intended to inflict, and when I had proposed my sentence I do not remember ever feeling that I had acted excessively or done injustice. I am now quite certain that no sentence can be properly awarded unless after such consideration. I speak, of course, only of serious crimes.

It has more than once happened that even after all the evidence in the case was before the jury, as was supposed, I have discovered that an accused man, in mitigation of sentence, has pleaded that which would have been a perfect defence to the charge made against him! One of these instances was very remarkable. It happened at some country racecourse.

A man was charged with robbing another who was in custody in charge of the police for "welshing." The prisoner had undoubtedly, while the prosecutor, as I will call him, was in custody, and being led along the course, rushed up to him, after jumping the barriers, and put his hand in his coat-pocket, pulling out his pocket-book and other articles. He then made off, but was pursued by the police and arrested. He was indicted for the robbery, and the facts were undisputed.

There was no defence set up, and I was about to ask the jury for their opinion on the case, which certainly had a very extraordinary aspect.

Suddenly the prisoner blurted out, as excusing himself,—

"Well, sir, he asked me to take the things. I was a stranger to him, and the mob was turning his pockets inside out and ill-treating him for welshing."

I immediately asked the prosecutor, "Is that true?" and he answered, "Yes." The prisoner said, "I only did it to protect his things for him."

Of course I instantly stopped the case and directed an acquittal.
I then gave both parties a little advice. To the prosecutor (the
welsher) I said, "Don't go welshing any more;" and to the prisoner,
"If you ever again see a welsher in distress, don't help him."

I should like to say one word more. It should not be supposed that a man, when sentenced, is altogether bad because he uses insulting language to the Judge. He may not be utterly bad and past all hope of redemption on that account.

The want of even an approach to uniformity in criminal sentences is no doubt a very serious matter, and is due, not to any defect in the criminal law (much as I think that might be improved in many respects), but is owing to the great diversity of opinion, and therefore of action, which not unnaturally exists among criminal Judges, from the highest to the humblest, numbering, as they do, at least 5,000 personages, including Judges of the High Courts, commissioners, recorders, police magistrates, and justices of the peace.

When one considers the conditions under which the criminal law is administered in England, and remembers that no fixed principles upon which punishments should be awarded have been authoritatively laid down, and that the law has stated only a maximum (but happily at the present time not a minimum), and each Judge is left practically at liberty to exercise his own unfettered discretion so long as he confines himself within the limit so prescribed, it is no matter for wonder that so great a diversity of punishment should follow so great a variety of opinion.

Even in the most accurate and useful books of practice to which all look for guidance and assistance during every stage of the criminal proceedings, down to the conviction of the offender, no serious attempt has been made to deal, even in the most general way, with the mode in which the appropriate sentence should be arrived at.

The result of this state of things is extremely unsatisfactory, and the most glaring irregularities, diversity, and variety of sentences are daily brought to our notice, the same offence committed under similar circumstances being visited by one Judge with a long term of penal servitude, by another with simple imprisonment, with nothing appreciable to account for the difference.

In one or the other of these sentences discretion must have been erroneously exercised. I have seen such diversity even between Judges of profound learning in the law who might not unreasonably, prim facie, be pointed to as safe examples to be followed; and so they were, so far as regarded their legal utterances. Experience, however, has told us that the profoundest lawyers are not always the best administrators of the criminal law.

Practically there are now no criminal offences which can be visited with the penalty of death. Treason and murder still remain. For the latter offence the Judge is bound to pronounce sentence of death, which is imperatively fixed and ordained by Act of Parliament, and any other sentence would be illegal.

There are certain principles which I consider ought never to be lost sight of.

In the first place, it must be remembered that for mere immorality, not made criminal by the common or statute law of the land, no punishment can be legally inflicted, and, in my opinion, no crime ought to be visited with a heavier punishment merely because it is also against the laws of God.

Take, for example, the crime of unlawfully knowing a girl under the age of sixteen years, even with consent. Assume that with her invitation the man committed himself. Go further, and establish the sin of incest. The latter sin ought to be totally ignored in dealing with the statutory offence.

I must not, however, be understood as intending my observations to apply to cases where the immorality is in itself an element of the crime. My view is that the rule ought to apply only in cases where the immorality is only a sin against God, and is severable from the crime committed against the laws of the land.

The case I have suggested is an illustration of what I mean.

Secondly, a sentence ought never to be so severe as to create in the mind of reasonable persons, having knowledge of the circumstances, a sympathy with the criminal, for that tends to bring the administration of the law into discredit, and while giving a Judge credit for having acted with the strictest sense of justice, it might give rise to a suspicion of his fitness and qualifications for the administration of the criminal law—a state of things which ought to be avoided.

The same observations apply, but not with equal force, to sentences which may to reasonable persons acquainted with all the circumstances appear to be ridiculously light, for it is more consistent with our laws to err on the side of mercy than on the side of severity.

The object of criminal sentences is to compel the observance by all persons, high and low, rich and poor, of those public rights and privileges, both as regards the persons and property common to all their fellow-subjects, the infringement of which is made criminal.

For the infringement of other rights of a private character the law has provided civil remedies with which we are not at this moment concerned.

Punishments, then, should be administered only as a necessary sequence to the breach of a criminal law, with the object of deterring the offender from repeating his offence.

Of necessity it operates to some extent as a warning to others; but that is not its primary object, for no punishment ought to exceed in severity that which is due to the particular offence to which it is applied. To add to a sentence for a very venial offence for which a nominal punishment ought to suffice an extra fine or term of imprisonment by way of example or warning to others would be unreasonable and unjust. Vengeance, or the infliction of unnecessary pain, especially for the sake of others, should never form part of a criminal sentence.

Reformation of the criminal by and during his imprisonment should be one chief object of his punishment, but a just sentence for the offence is not to be prolonged either for education or reformation, unless expressly sanctioned by law, as in the case of reformatories.

With regard to crimes of violence, it sometimes happens that long periods of restraint and imprisonment are imperative—where, for instance, the criminal is persistent in his threats, or has made it evident by his actions or words that on his liberation from imprisonment for criminal violence he intends to resume his criminal course, and will do so unless restrained.

Take, for instance, the case of a persistent burglar, the great majority of whose robberies are committed under circumstances calculated to create terror and alarm, and upon whom imprisonment, however long, has no restraining effect after his liberation. Take the confirmed highway robber, who to secure his booty does not scruple to use deadly violence upon his victim. It is rare that one short term of imprisonment, or the fear of another, induces him to abandon his criminal course. In such cases it is essential for the protection of the public that he should no longer be at liberty to pursue his dangerous and alarming course of life. For him, therefore, a much longer term of restraint is necessary than in the case of mere pilferers, whose thefts, although causing loss and vexation, are not productive of personal injury.

Lastly, I am strongly averse from abolishing the sentence of death in cases of deliberate murder. Even when the crime is committed under the influence of jealousy, I should take little pains to save the life of one who had cruelly and deliberately murdered another for the gratification of revenge or the purpose of robbery.

In the case of poor creatures who make away with their illegitimate offspring in the agony of their trouble and shame, there were, in my experience, almost always to be found very strong reasons for commutation, even to very limited periods of imprisonment.