Patrick Colquhoun

On Punishments.—The mode authorized by the ancient laws.—The period when Transportation commenced.—The principal crimes enumerated which are punishable by Death.—Those punishable by Transportation and Imprisonment.—The courts appointed to try different degrees of crimes.—Capital punishments, extending to so many offences of an inferior nature, defeat the ends of justice.—The system of Pardons examined:—their evil tendency.—New regulations suggested with regard to Pardons and Executions.—An historical account of the rise and progress of Transportation.—The expedients resorted to, after the American War put a stop to that mode of punishment.—The System of the Hulks then adopted.—Salutary Laws also made for the erection of Provincial and National Penitentiary Houses.—The nature and principle of these Laws briefly explained.—An account of the Convicts confined in the Hulks for twenty-two years.—The enormous expence of maintenance and inadequate produce of their labour.—The impolicy of the system exposed by the Committee on Finance.—The system of Transportation to New South Wales examined.—Great expence of this mode of punishment.—Improvements suggested, calculated to reduce the expence in future.—Erection of one or more National Penitentiary Houses recommended.—A general view of the County Penitentiary Houses and Prisons:—their inefficacy in reforming Convicts.—The labour obtained uncertain, while the expence is enormous.—The National Penitentiary House (according to the proposal of Jeremy Bentham, Esq.) considered.—Its peculiar advantages over all others which have been suggested, with respect to health, productive labour, and reformation of Convicts.—General reflections on the means of rendering imprisonment useful in reforming Convicts.—Concluding observations.

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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.

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1. Crimes punishable by the Deprivation of Life; and where, upon the Conviction of the Offenders the sentence of Death must be pronounced by the Judge.—Of these, it has been stated, the whole, on the authority of Sir William Blackstone, including all the various shades of the same offence, is about 160 in number.

The principal are the following:

Treason, and Petty Treason; See page 38, &c. Under the former of these is included the Offence of Counterfeiting the Gold and Silver Coin, See page 191-211.

Murder, See page 44, &c.

Arson, or wilfully and maliciously burning a House, Barns with Corn, &c. See page 56.

Rape, or the forcible violation of chastity, &c. See page 46.

Stealing an Heiress, See page 48.

Sodomy, a crime against nature, committed either with man or beast, See page 46.

Piracy, or robbing ships and vessels at sea: under which is included, the Offences of sailors forcibly hindering their captains from fighting, See page 55, 56.

Forgery of Deeds, Bonds, Bills, Notes, Public Securities, &c. &c. Clerks of the Bank embezzling Notes, altering Dividend Warrants: Paper Makers, unauthorised, using moulds for Notes, &c.

Destroying Ships, or setting them on Fire, See page 57.

Bankrupts not surrendering, or concealing their Effects

Burglary, or House Breaking in the night time, See page 57.

Highway Robbery

House Breaking in the day time, See page 54, 55.

Privately Stealing or Picking Pockets above one Shilling

Shop Lifting above Five Shillings, See page 55.

Stealing Bonds, Bills, or Bank Notes

Stealing Bank Notes, or Bills from Letters

Stealing above 40s. in any House, See page 55.

Stealing above 40s. on a River

Stealing Linen, &c. from Bleaching Grounds, &c. or destroying Linen therein

Maiming or Killing Cattle maliciously. See the Black Act, 9 Geo. I. cap. 22.

Stealing Horses, Cattle or Sheep

Shooting at a Revenue Officer; or at any other person, See the Black Act

Pulling down Houses, Churches, &c.

Breaking down the head of a Fish-Pond, whereby Fish may be lost, (Black Act)[131]

Cutting down Trees in an Avenue, Garden, &c.

Cutting down River or Sea Banks.

Cutting Hop Binds

Setting fire to coal mines

Taking a Reward for helping another to Stolen Goods, in certain cases, See page 295

Returning from Transportation; or being at large in the Kingdom after Sentence

Stabbing a Person unarmed, or not having a weapon drawn, if he die in six months

Concealing the death of a Bastard Child

Maliciously maiming or disfiguring any person, &c. lying in wait for the purpose, See page 50.

Sending Threatening Letters (Black Act)

Riots by twelve or more, and not dispersing in an hour after proclamation

Being accessaries to Felonies deemed capital

Stealing Woollen Cloth from Tenter Grounds

Stealing from a Ship in Distress

Government Stores, embezzling, burning or destroying in Dock-Yards; in certain cases, See pages 261-263

Challenging Jurors above 20 in capital felonies; or standing mute

Cottons selling with forged Stamps

Deer-Stealing, second offence; or even first offence, under Black Act, not usually enforced

Uttering counterfeit Money, third offence

Prisoners under Insolvent Acts guilty of perjury

Destroying Silk or Velvet in the loom; or the Tools for manufacturing thereof; or destroying Woollen Goods, Racks or Tools, or entering a House for that purpose

Servants purloining their Masters' Goods, value 40s.

Personating Bail; or acknowledging fines or judgments in another's name

Escape by breaking Prison, in certain cases

Attempting to kill Privy Counsellors, &c.

Sacrilege

Smuggling by persons armed; or assembling armed for that purpose

Robbery of the Mail

Destroying Turnpikes or Bridges, Gates, Weighing Engines, Locks, Sluices, Engines for Draining Marshes, &c.

Mutiny, Desertion, &c. by the Martial and Statute Law

Soldiers or Sailors enlisting into Foreign Service

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2. Crimes denominated Single Felonies; punishable by Transportation, Whipping, Imprisonment, the Pillory, and Hard Labour in Houses of Correction, according to the Nature of the offence.

The principal of which are the following:

Grand Larceny, which comprehends every species of Theft above the value of One Shilling, not otherwise distinguished

Receiving or buying Stolen Goods, Jewels and Plate. See page 299

Ripping and stealing Lead, Iron, Copper, &c. or buying or receiving, See page 295

Stealing (or receiving when stolen) Ore from Black Lead Mines

Stealing from Furnished Lodgings

Setting fire to Underwood

Stealing Letters, or destroying a Letter or Packet, advancing the Postage, and secreting the Money

Embezzling Naval Stores, in certain cases, See pages 261-263

Petty Larcenies, or Thefts under one Shilling

Assaulting with an intent to Rob

Aliens returning after being ordered out of the kingdom

Stealing Fish from a Pond or River—Fishing in inclosed Ponds, and buying stolen Fish

Stealing Roots, Trees, or Plants, of the value of 5s. or destroying them

Stealing Children with their apparel

Bigamy, or Marrying more Wives or Husbands than one (now punishable with transportation)

Assaulting and Cutting, or Burning Clothes

Counterfeiting the Copper Coin, &c.—See page 191-211

Marriage, solemnizing clandestinely

Manslaughter, or killing another without Malice, &c. See page 44

Cutting or Stealing Timber Trees, &c. &c. &c.

Stealing a Shroud out of a Grave

Watermen carrying too many passengers in the Thames, if any drowned

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3. Offences denominated Misdemeanors, punishable by Fine, Imprisonment, Whipping, and the Pillory.

The principal of which are the following:

Perjury, or taking a false Oath in a judicial proceeding, &c.

Frauds, by Cheating, Swindling contrary to the rules of common honesty, &c. &c.

Conspiracies, for the purpose of injuring or defrauding others

Assaults by striking or beating another person, &c.

Stealing Dead Bodies

Stealing Cabbages, Turnips, &c. growing

Cutting and stealing Wood and Trees

Robbing Orchards and Gardens

Stealing Deer from Forests

Stealing Dogs

Setting fire to a House to defraud the Insurance Office

Making and selling Fire-Works and Squibs

Throwing the same when on fire about the streets

Uttering Base Money

Selling Base Money under its denominated value

Embezzlement in the Woollen, Silk, and other Manufactures

Offences by Artificers and Servants in various Trades

Combinations and Conspiracies for raising the price of Wages, &c. (See stat. 39 Geo. III. c. 81)

Smuggling Run Goods, and other Frauds relative to the Excise and Customs

Keeping Bawdy Houses and other Disorderly Houses

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4. Idle and Disorderly Persons described by the Act of the 17th Geo. II. cap. 5. and subsequent Acts; punishable with one Month's Imprisonment—namely,

1. Persons threatening to run away and leave their wives and children on the Parish

2. Persons who tipple in Ale Houses, and neglect their Families, &c. as described in the 3d Geo. III. cap. 45

3. Persons who shall unlawfully return to the Parish or place from which they have been legally removed, without bringing a Certificate

4. Persons, who not having wherewithal to maintain themselves, live idly without employment, and refuse to work for the usual Wages

5. Persons begging in the streets, highways, &c.

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5th. Rogues and Vagabonds described by the said Act of the 17th Geo. II. cap. 5. and subsequent Acts; punishable by Six Months' Imprisonment—namely,

1. Persons going about as Patent Gatherers or Gatherers of Alms, under pretence of Loss by Fire, or other casualty.

2. Fencers, Bearwards, Strolling Players of Interludes, or other Entertainments

3. Minstrels, (except those licensed by the Lord Dutton in Cheshire)

4. Persons pretending to be, and wandering in the habit of, Gypseys

5. Fortune-Tellers, pretending Skill in Physiognomy, Palmistry, &c. or using any subtle craft to deceive and impose on others

6. Persons playing or betting at any unlawful Games or Plays

7. Persons who run away, and leave their Wives and Children upon the Parish

8. Petty Chapmen and Pedlars wandering abroad without a Licence

9. Persons wandering abroad, and lodging in Ale-Houses, Out-Houses, or the open Air, and not giving a good account of themselves

10. Persons wandering abroad, and pretending to be Soldiers or Sailors, without proper Certificates from their Officers, or Testimonials from Magistrates

11. Persons wandering abroad, pretending to go to work in Harvest, without a proper Certificate from the Parish

12. Persons having Implements of House-breaking or Offensive Weapons, with a Felonious intent

13. Persons concerned in illegal Lottery Transactions, as described in the Lottery Acts, 27th, 33d, 34th, and 35th Geo. III.

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6th. Incorrigible Rogues, punishable with Two Years' Imprisonment and Whipping, or Transportation for Seven Years, if they break out of Prison—namely,

1. Persons stiled End-Gatherers, buying, collecting, or receiving Ends of Yarn in the Woollen Branch, against the stat. 13 Geo. I. cap. 23.

2. Persons, who being Rogues and Vagabonds, have escaped after being apprehended, or who shall refuse to be examined by a Magistrate, or who shall give a false account of themselves after being warned of their punishment

3. Persons who shall escape out of any House of Correction before the period of their imprisonment empires

4. Persons, who being once punished as Rogues and Vagabonds, shall again commit the same offence.

? There are a great many other trivial Offences denominated Misdemeanors, subject to pecuniary Fines, which it is not easy to enumerate. Since almost every statute, whether public or private, which passes in the course of a Session of Parliament, creates new offences—the shades vary as Society advances, and their number is scarcely within the reach of calculation.

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:

Murder	46
Arson	5
Burglary	101
Robbery	58
Horse and Cattle stealing	108
Forgery	16
Coining	17
	351
Felony	315
Larceny	998
Receiving stolen Goods	61
Frauds and Misdemeanors	101
Rogues and Vagabonds	21
	1496
Manslaughter	29
Bigamy	3
Beastiality	2
Rape	9
Perjury	2
Sedition	2
	47

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

			Prisoners convicted, and their Punishments.
London, Middlesex, and Westminster.	Persons comitted for trial.	Of whom acquitted and discharged.	Death.	Transported for 14 years.	Transported for 7 years.	Whipt & imprisoned.	Imprisoned 6 months and upwards.	Imprisoned 3 months & otherwise disposed of.	Sent to serve the King.	Judgment respited.	Total punished.
London Sessions	199	70	6	1	50	10	29	20	8	5	129
Middlesex and Westminster	861	497	62	1	117	38	51	49	30	16	364
	1060	567[134]	68	2	167	48	80	69	38	21	493

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.

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 incumbrance.

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 mass 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 circumstances,) will speedily be supplied by another.[137]

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 circumstances 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]

The Convicts having accumulated 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.

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 coarse 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.

The first was to erect, in some convenient common or waste ground, in either of the counties of Middlesex, Essex, 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 Assize, 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 oakum
• 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 coarse meat, with water and small beer; and the Prisoners were to be cloathed in uniform apparel, with badges affixed, agreeable to the Institution.

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 shores 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 circumstances, is also established; and on the discharge of any of the convicts, they are to receive for present subsistence from 20s. to 3l. according to circumstances.

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 Middlesex; 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 assigned 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 entitle 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 passed, (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.

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.

By the Act of 30 George III. cap. 47, the Governor of the Settlement may remit the punishment of offenders there: and on a certificate from him their names shall be inserted in the next General Pardon.

Under these various legislative regulations, the two Systems of Punishment, namely, the Hulks and Transportation to New South Wales, have been authorized and carried into execution.

The System of the Hulks commenced on the 12th day of July, in the year 1776; and from that time until the 12th of December 1795, comprehending a period of nineteen years, 7999 Convicts were ordered to be punished by hard labour on the river Thames, and Langston and Portsmouth harbours, which are accounted for in the following manner:

1. Convicts ordered to hard labour on the River Thames, from 12th July 1776, to the 12th January, 1778			2024
2. Convicts, under sentence of Transportation, put on board the Hulks on the River Thames, from 11th January, 1783, to 12th December, 1795		4775
3. Deduct, under sentence of Transportation, put on board the Hulks in Langston and Portsmouth Harbours, received from the Hulks at Woolwich, on the 20th of June, 1791		466
			4309
Additional Convicts sent from different prisons to Portsmouth and Langston from 1791, to 1st December, 1795		1200
To which, add those from Woolwich as above		466
			1666
		Total	7999
Of the above convicts there have been
Discharged	1610
Pardoned	790
Escaped	130
		2530
Removed to other Gaols		17
Transported to New South Wales		2207
Died[143]		1946
		6700
And there remain in the Hulks on the Thames	523
And at Langston Harbour	776
		1299
Total as above			7999

By a subsequent account laid before the Select Committee of the House of Commons on Finance, and stated in Appendix, M. of their 28th Report, dated the 26th of June, 1798, it appears that the number of Convicts stood thus:

In the Hulks on the Thames, at Woolwich	501
At Portsmouth	948
Total	1449

Besides 415 under Sentence of Transportation in the different Gaols, making in all 1864.

From the same authentic Documents, (pages 115, 116,) it appears, that of these Convicts, the following numbers will be discharged upon Society in the succeeding 13 years:[144]

RECAPITULATION.

In the same authentic Documents, namely the Appendix (L. 1 & 2) page 103 of the 28th Report of the Select Committee on Finance, a Statement is given of the Expence which has been incurred by Government, "for or in respect of the Conviction, Confinement, and Maintenance of Convicts, from the 1st January, 1775, to the year ending the 31st December, 1797," of which the following is an abstract:

The Contractors for the Convicts at Woolwich and Langston Harbour, (as appear from documents laid before the House of Commons) entered into an agreement with the Lords of the Treasury obliging themselves for the consideration of 1s. 3d. per day, (being 22l. 16s. 3d. a year for each Convict,) to provide at their own cost or charge, one or more Hulks, to keep the same in proper repair, to provide proper Ship's Companies for the safe Custody of such Convicts; and sufficient meat, drink, clothing and medical assistance, for the Convicts; as also to sustain all other charges (excepting the expence of the Chaplain, Coroner, and bounties to discharged Convicts;[145]) obeying, at the same time, all the orders of his Majesty's Principal Secretary of State for the Home Department, respecting the Convicts. A subsequent contract was made at 14½d. which reduced the expence to 22l. 1s. 0½d. per man: and which is the allowance made to the present Contractors.

The terms of these contracts appear to be as favourable for Government as could reasonably be expected, under all circumstances; and it would appear, that some advantages are reaped by the Public, as the documents laid before the House of Commons in 1792 and 1798, shew that the labour performed by the Convicts is productive in a certain degree.—The following Statements explain how their labour is valued:—

It appears from the 28th Report of the Select Committee on Finance, Appendix, No. 7 and 8—

Upon this last statement the Select Committee on Finance (whose various elaborate Reports on the State of the Nation, do them immortal honour as Patriots and Legislators) very justly observe, that it is extremely difficult to calculate the value of labour, performed under such circumstances, with any degree of accuracy; and after several views of the subject a conclusion is drawn, that the net expence to the Public, for the maintenance of 1402 convicts in 1797, after deducting the estimated value of labour, amounted to 20,878l. 14s. 10½d. being at the rate of 14l. 17s. 9½d. per man.

It appears, however, that out of the whole number of 1402 maintained in 1797, only 1030 were actually employed. The labour of the remaining 370 was, therefore, in a great measure, lost to the Community.

At any rate, the value of this species of labour must be precarious, and the advantages resulting from it problematical.

Since the mere "possession of so many idle hands will sometimes be a temptation to engage in works, which but for this inducement, would not recommend themselves by their intrinsic utility."[146]

While it is admitted, that considerable improvements have been made with regard to the reduction of the expence; that provision has also been made for religious and moral instruction, by established salaries to chaplains;—and that the contractors have honourably performed their part of the undertaking; it is much to be lamented, that this experiment has not been attended with more beneficial consequences to the Public; not only in rendering the labour of the convicts productive in a greater degree, so as at least to be equal to the expence; but also in amending the morals of these miserable out-casts; so that on their return to Society, they might, in some respect, atone for the errors of their former lives, by a course of honest industry, useful to themselves and to their country. On the contrary, experience has shewn, that although an expence exceeding 623,000l. has been incurred by Government in the course of 22 years, most of them, instead of profitting by the punishment they have suffered (forgetting they were under sentence of death, and undismayed by the dangers they have escaped) immediately rush into the same course of depredation and warfare upon the public: nay, so hardened and determined in this respect have some of them been, as even to make proposals to their old friends, the Receivers, previous to the period of their discharge, to purchase their newly acquired plunder. It has already been shewn, that those few also, who are less depraved, and perhaps disposed to amend their conduct, can find no resource for labour; and are thus, too frequently, compelled, by dire necessity, to herd with their former associates in iniquity, and it is much to be feared, that the chief part of the multitudes, who have been periodically discharged, have either suffered for new offences, or are actually at present afflicting Society by reiterated depredations.[147]

After maturely considering the enormous expence, and the total inefficacy of the System of the Hulks, aided by the new lights which have been thrown upon the subject by the important documents called for by the Select Committee on Finance, it appears clear to demonstration, that it would be for the interest of the Country to abandon the present System; and the Author heartily joins in the opinion expressed by those respectable members of the Legislature,—"That our principal places of Confinement, and modes of Punishment, so far from the Conversion and Reformation of the Criminal, tend to send him forth at the expiration of the period of his imprisonment more confirmed in vice; and that the general tendency of our oeconomical arrangements upon this subject, is ill calculated to meet the accumulating burdens, which are the infallible result of so much error in the System of Police."

Having thus explained the nature and effect of the punishment inflicted on convicts, through the medium of the Hulks, and also the expence attending these establishments; it will be necessary in the next place, to examine the authentic documents, as they relate to the transportation of Felons to New South Wales.

From the Appendix, page 122, of the 28th Report of the Select Committee on Finance, printed the 26th of June 1798, it appears that the number of Convicts sent to New South Wales and Norfolk Island[148] from the year 1787 to the year 1797 inclusive, stood thus:—

It appears also from another document in the same Report (being the last return of Convicts in the two Settlements) that their numbers stood as stated in the following Table,—

The diminution of Convicts from 5858 to 3809 is to be accounted for, by a certain proportion leaving the Settlement after the expiration of their time, and also by deaths,[149] which in the natural course of things must be expected.

In resorting to this mode of disposing of Convicts, which at the time must be considered as a choice of difficulties, a very large sum of money has been expended.—Certainly much more than could have been foreseen at the commencement: Since it appears from the 28th Report of the Select Committee on Finance, who certainly have bestowed infinite pains in the investigation, that the total amount exceeds One Million Sterling, as will be seen from the following Statement, extracted from page 120 of that 28th Report, viz:

Disbursed for 5858 Convicts including 93 Children, transported
to New South Wales

Specification of the heads of Expences above stated—

Thus it appears, that in executing the sentence of the Law on 5765 Convicts more than One Million Sterling has been expended, nearly equal to 180l. for each Convict, exclusive of the expence incurred by the Counties, and by Government in the maintenance at home; and without taking into the account the very considerable charge, which must have been borne by the private Prosecutors in bringing these Offenders to Justice.

The Select Committee in their laborious investigation of the effects of this System, very justly observe, "that the numbers of the Convicts do not appear to have kept pace with the increase of the expence."—They proceed to state (page 27 of the Report) "that after a trial of twelve years, it seems not too early to inquire whether the peculiar advantages likely to arise from this plan are such as may be considered as compensating for its probable expence. The security held out by the difficulty of return on the part of the convicts is the only advantage that strikes the eye: but the nature of this advantage, the amount of it, and the certainty of it, seem not altogether undeserving of inquiry; nor whether a security of the same sort more at command, and more to be depended on, might not be purchased on less exceptionable terms. It may be also worthy of inquiry (add the Committee) whether the advantages looked for, from this establishment may not be dependent on its weakness? and whether as it grows less disadvantageous in point of finance, it will not be apt to grow less advantageous in the character of an instrument of Police? The more thriving the Settlement the more frequented: The more frequented the less difficulty of return.—The more thriving too the less terrible. To persons in some circumstances;—to persons who otherwise would have been disposed to emigrate, it may loose its terrors altogether, especially if by money or other means the servitude be avoidable. This inconvenience had already become sensible in the instance of the comparatively old planted Colonies. Many, though innocent, went thither voluntarily, even at the price of servitude, while others under the notion of punishment, were sent thither for their crimes; so that while to some the emigration remains a punishment, to others it may become an adventure; but a punishment should be the same thing to all persons, and at all times."

Contingencies, the Committee remark, may diminish the utility of the Establishment, or may increase the expence. "Bad seasons, and the destruction of the vegetable part of the stock of food: Mortality among the as yet scanty stock of cattle.[150] Mischief from the natives,—from insurrection among the convicts, or from the enemy.

"Here, as at Sierra Leone, malice may produce an expedition of devastation. The illusions to which the spirit of rapine is so much exposed may give birth to an enterprize of depredation; apprehensions of any such event entertained here would necessarily give birth to preparations of defence. The apprehensions may be well or ill grounded—the measures taken for defence successful or unsuccessful; but the expence in the mean time is incurred. The distance is unexampled, and all danger as well as all expence swells in proportion to the distance: these topics appear to merit consideration.

"Another circumstance is, that the labour of the whole number of persons sent to these colonies, whether as Convicts or Settlers, is entirely lost to the Country, nor can any return, to compensate such a loss, be expected till that very distant day, when the improved state of the Colony may, by possibility, begin to repay a part of the advance, by the benefits of its trade.

"Supposing abundance established, and remaining for ever without disturbance, it may be deserving of consideration, in what shape and in what degree, and with what degree of assurance, Government, in point of Finance, is likely to profit by the abundance: for the stock of the individuals, which each individual will consume, lay up or sell, is on his own account; is not the Stock of Government. The saving to Government depends upon the probity and zeal, and intelligence of the Bailiffs in Husbandry, acting without personal interest in the concern at that immense distance."

After opinions so decided, the result of an inquiry, aided by extensive information, and conducted by men of talents and judgment, it would ill become the Author of this Work to offer (if he could suggest,) additional arguments to prove the disadvantages which have attended, and which are likely to attend the transportation of Convicts to New South Wales. Although with regard to mere subsistence, there may be a prospect (and it is yet a distant one), of the Colony becoming independent of supplies from this Country; yet with respect to most other articles its wants will experience no diminution, and having once engaged in the project, humanity requires that the Settlement should be supplied at the expence of the Nation.

When the measure of establishing this Colony was adopted, a hope was probably entertained that while the great difficulty and expence of the passage home, joined to the fertility of the soil and the salubrity of the climate, might induce convicts to remain after the expiration of the period specified in their sentence, so as not to become offensive again to their native Country; the removal to an unknown region, inhabited by Savages, and situated at such a remote distance from Great Britain would exhibit this species of punishment in so terrific a light as to operate powerfully in preventing crimes.

Experience, however, has shewn that this salutary effect has not been produced, and that crimes are not to be diminished by the dread of punishment in any shape. This great desideratum is only to be attained by a well-regulated Police, calculated to destroy the sources from whence evil propensities spring, and to remove the facilities by which criminality is nourished and assisted.

Under the present circumstances, where the mind continues depraved, and where the harvest is so prolific, it ceases to be a matter of wonder that a considerable proportion of the convicts transported to New South Wales, have found their way back to their native Country;—and that not a few of them have again afflicted Society by renewing their depredations on the Public.—It is, indeed, lamentable to reflect, that after the extreme labour which has been bestowed, and the unparalleled expence which has been incurred, no effect whatsoever favourable to the interest of the Community, or to the security of innocence, has been produced. Looking back to the period when Government was relieved of the expence of Convicts, almost of every description under sentence of Transportation, and reflecting on the enormous expence which has been incurred since the channel of disposal, through the medium of the late American Colonies, has been shut up; considering that within the short period of twenty-five years no less a sum than 1,663,974l.[151] has been expended in transporting and maintaining about 15,000 Convicts, which would have cost nothing under the old System;—it cannot be sufficiently lamented, that so liberal a provision had not been employed in establishing Systems of Prevention. One fourth part of this enormous sum expended in a proper establishment of Preventive Police, would probably have rendered transportation and punishment in a considerable degree unnecessary, while the Country would have benefitted by the industry of a large proportion of these outcasts, who would then have been compelled to earn an honest livelihood by their labour.

Deploring the mass of turpitude which has drawn from the resources of the Country so enormous a portion of wealth, it is no little consolation to be able to look forward to a measure recommended by the Select Committee, and in the train of being adopted by Government, which holds out so fair a prospect not only of gradually diminishing this expence in future, but also of rendering the labour of Convicts productive, and of securing the Public against the repetition of those depredations which have been rather increased than prevented, by the System of punishments which have been heretofore adopted.

The advantages in contemplation are to be attained by carrying into effect a proposal for a new and less expensive mode of employing and reforming Convicts, which has been offered to the consideration of Government by Jeremy Bentham, Esq. and which appears to have been fully investigated by the Finance Committee, who state it (p. 20, of Report 28,) "to be no small recommendation to the plan, that the Contractor proposes to employ the prisoners on his own account, receiving a proportionally smaller sum from the Public for their maintenance.—That the great and important advantages which distinguish that plan from any other which has been hitherto suggested, consist in the certain employment and industrious livelihood which it insures to those whose terms of confinement are expired. In the responsibility which the Contractor proposes to take upon himself, for the future good behaviour of Criminals entrusted to his care, even when they shall be no longer under his control: in the publicity which is meant to be given to the whole conduct and effect of the Establishment, moral, medical, and oeconomical, as well by an annual report of the state and proceedings, as by the constant facility of inspection, which will in an unusual manner be afforded by the very form and construction of the building, upon which the prompt and easy exercise of the superintending power of the Governor himself principally depends."

These advantages appear to the Committee of more importance, when the periods of the enlargement of the several Convicts now on board the Hulks are taken into consideration. The pernicious effects produced upon the unfortunate persons confined in these seminaries of vice; and the circumstance of 1411 destined to be enlarged in the course of 7 years, to afflict the Society from which they have been separated—the Committee consider as deserving of very serious consideration: and they conclude their view of the subject by expressing, an uncommon degree of solicitude, that no delay should take place in the execution of the contract with Mr. Bentham, "because it would deprive the Public for a longer time of the benefits of a plan, which they cannot but look to as likely to be productive of the most essential advantage, both in point of oeconomy and Police."

The object in view is by the aid of ingenious machinery, to render the labour of every class of Convicts so productive to the Contractor, as to admit of their being maintained at 25 per cent. less than the expence incurred on board the Hulks; while a rational prospect is held out of reforming these Convicts and returning them upon Society, not only with purer morals, but with the knowledge of some trade or occupation by which they may afterwards earn their bread;—but this is not all.—The proposer of this important design insures to the Convicts, after the expiration of their time, the means of obtaining a livelihood; by setting up a Subsidiary Establishment, into which all who found themselves otherwise destitute of employment would be admitted, and where they would be continued in the exercise of the trades in which they were employed during their confinement.

It is, however, impossible to do justice to the merit of this Proposal, without laying it wholly before the Public. It seems to embrace every object calculated to remove the errors and difficulties of the present System, while it promises in a short time to relieve the Finances of the Country from the enormous and unparalleled expence which is incurred by the Establishment of the Hulks, and by Transportation to New South Wales.

PROPOSAL
FOR A NEW AND LESS EXPENSIVE MODE OF
EMPLOYING AND REFORMING CONVICTS.

The Author, having turned his thoughts to the Penitentiary System from its first origin, and having lately contrived a Building in which any number of persons may be kept within the reach of being inspected during every moment of their lives, and having made out, as he flatters himself, to demonstration, that the only eligible mode of managing an Establishment of such a nature, in a Building of such a construction, would be by Contract, has been induced to make public the following Proposal for Maintaining and Employing Convicts in general, or such of them as would otherwise be confined on board the Hulks, for 25 per cent. less than it costs Government to maintain them there at present; deducting also the average value of the work at present performed by them for the Public: upon the terms of his receiving the produce of their labour, taking on himself the whole expence of the BUILDING, fitting up and stocking,[152] without any advance to be made by Government for that purpose, requiring only that the abatement and deduction above-mentioned shall be suspended for the first year.

Upon the above-mentioned Terms, he would engage as follows:

Such are the methods that have occurred to him for accomplishing that identification of "interest with duty," the effectuating of which, in the person of the Governour, is declared to be one of the leading objects of the Penitentiary Act.—[19 Geo. III. ch. 74.]

The station of Gaoler is not in common account a very elevated one: the addition of Contractor has not much tendency to raise it. He little dreamt, when he first launched into the subject, that he was to become a suitor, and perhaps in vain, for such an office. But inventions unpractised might be in want of the inventor: and a situation, thus clipped of emoluments, while it was loaded with obligations, might be in want of candidates. Penetrated, therefore, with the importance of the end, he would not suffer himself to see any thing unpleasant or discreditable in the means.

Outline of the Plan of Construction alluded to in the above Proposal.

The Building circular—about the size of Ranelagh—The Prisoners in their Cells, occupying the Circumference—The Officers, (Governor, Chaplain, Surgeon, &c.) the Centre.

By Blinds, and other contrivances, the Inspectors concealed (except in as far as they think fit to show themselves) from the observation of the Prisoners: hence the sentiment of a sort of invisible omnipresence.—The whole circuit reviewable with little, or, if necessary, without any change of place.

One Station in the Inspection-Part affording the most perfect view of every Cell, and every part of every Cell, unless where a screen is thought fit occasionally and purposely to be interposed.

Against Fire (if, under a system of constant and universal inspection, any such accident could be to be apprehended,) a pipe, terminating in a flexible hose, for bringing the water down into the central Inspection-Room, from a cistern, of a height sufficient to force it up again by its own pressure, on the mere turning of a cock, and spread it thus over any part within the Building.