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Execution of the Criminal Law.

241 dence could be given, inasmuch as no sufficient should be entrusted with it, to interposing the experience has yet been had of the improved check of a jury, composed, however, not of systems which are now in partial operation. twelve but of three or four persons. It is also

Thirdly,—The evidence all tends to show the very general opinion that magistrates may the great importance of improving our prison safely and advantageously be armed with a discipline. Solitary confinement ought on no power of discharging for slight offences, upon account to be inflicted beyond a very short taking the recoynizances of parents or masters time, as three or four weeks with a consi- for the good behaviour of the party. Imderable interval after each week, and only two portant evidence will be found in the appendix, or at most three weeks during a period of especially from Birmingham and Manchester, eighteen months or two years. Its effects on in favour of a judiciously exercised discretion both the bodily and mental health are such as in discharging boys, especially when appreplainly to prescribe these limits.

hended for the first time. The principal diffi“The evidence also establishes an important culty of giving a summary jurisdiction arises distinction between solitary confinement and from the difficulty of fixing a limit in point of the discipline of the separate system. For the age, and of ascertaining in each case ihat the cure of moral evil, time is so essential a condi- party comes within the line. But the comtion that any system incapable of being long mittee are strongly inclined to think that much continued must fail of attaining its object. For of this might be got over, even without apthis reason solitary confinement, which cannot pointing special justices, by enabling magisbe prolonged without injury to the prisoner, trates in petty sessions to exercise the summary must fail. The silent system, as it has been power, with the previous consent of the parties termed, i. e., criminals working together in themselves to submit to such tribunal, confining silence, is objectionable as leading to a mul- the jurisdiction to certain offences, and the tiplicity of gaol offences, and inefficient as punishment of six months imprisonment, with wanting that power of forcing men to com- or without labour, or to the infliction of whipmune with themselves, which criminals espe- ping in the presence of certain appointed officers, cially dread and require. The separate system, with or without such imprisonment. where it has been fairly tried, seems to supply “The question of punishment of juvenile exactly what is needed, forcing the mind to offenders is a further and distinct one beside self-communion, and allowing this to be bro- that of the jurisdiction and power of conviction ken only by communication with those morally in their case. Very important evidence has the superiors of the convict. Nor does this been given in favour of dealing with such system, on the balance of the evidence, appear offenders, at least on first convictions, by to the committee to be inconsistent with the means of reformatory asylums on the principle health of the prisoners in body or mind, of Parkhurst prison, rather than by ordinary although on this last point there is a difference imprisonment; the punishment in such asyof opinion, some witnesses regarding this dis- lums being hardly more than what is implied cipline as hurtful, not indeed to the structure in confinement and restraint, and reformation and functions of the understanding, but to the and industrial training being the main features energies of the will. On this subject the com- of the process. Without going beyond the mittee would recommend, first, that great care principle which should be followed on this be taken in administering the system of sepa- question, the committee are disposed to recomrate confinement with labour, and, secondly, mend the adoption, by way of trial, of the that the number of prisons adapted to the reformatory asylums as above described, compractice of it be multiplied.

bined with a moderate use of corporal punish“ Fourthly.--The evidence throws some ment. The committee also recommend the light upon the treatment of young offenders. trial of a suggestion made by witnesses who That the contamination of a gaol as gaols are have given much attention to this subject, that, usually managed may often prove fatal, and wherever it is possible, part of the cost attendmust always he hurtful to boys committed for ing the conviction and punishment of juvenile a first offence, and that thus for a very trilling offenders should be legally chargeable upon act they may become trained to the worst of their

parents. crimes, is clear enough. But the evidence "Fifthly. The working of convicts exposed gives a frightful picture of the effects which to public view is condemned by most those are thus produced. In Liverpool, of fourteen who have been consulted or examined as a cases selected at random by the magistrates, practice tending to harden the offender, as rethere were several of the boys under twelve volting to the feelings of the community, and who in the space of three or four years had even as calculated to excite a feeling in the conbeen above fifteen times committed, and the vict's favour. The French authorities have average of the whole fourteen was no less than with great courtesy and candour communicated nine times. The opinions of competent judges, to the committee valuable information upon especially on the bench, vary as to the expe- this subject; and this information, corroborated diency of giving to magistrates a power of by a witness examined upon the state of the summary conviction in such cases; but the Bagnes or places of forced labour in France, inclination of opinion is in favour of confining leads to a very unfavourable opinion respectthis to professional persons exercising judicial ing this punishment as there conducted. or police functions ; or if two ordinary justices “ It is moreover clear upon the evidence that

242

Execution of the Criminal Law. this kind of working would tend to undo the corrupting effects produced on the community effects of any reformatory system which might | even by those who escape a second punishbe adopted prior to such working:

ment. “The objections, however, to this practice are “Looking to these facts, the committee are materially diminished if the convicts be em- of opinion that the punishment of transportaployed in remote and comparatively unpeopled tion should be retained for serious offences; “ districts,” such as may be found in some of that such punishment should in some cases be the colonial possessions of the crown, or in carried into effect immediately, in others at a other situations, where the labour of convicts later period; that the first stages of the may be employed without all the evils attendant punishment, whether carried into effect in this upon working under the public gaze.

country or in the colonies, should be of a reSixthly.-“Witnesses of the most competent formatory as well as of a penal character, and authority from Ireland are of opinion that the that tlie later stages at all events should be carsystem of employing large bodies of convicts ried into effect in the colonies, the convict together in the public view could not be adopted being for that purpose retained under that with safety in that country, where the sympathy qualified restraint to which under the existing of the mass of the people would be in favour system of transportation men holding tickets of the criminal, especially in all cases of agra- of leave or conditional pardon are subjected. rian crimes, and that it would be consequently “ The particular spots to which convicts may necessary to transfer England all Irish cri- be thus sent, and the degree of superintendence minals destined to be employed on public to which it is expedient that they should for a works, in case this mode of punishment were limited time be subjected, are matters requiring adopted.

the most attentive consideration of the governSeventhly.There is almost entire unani- ment, with whom much discretion respectmity in opinion against imprisonment for short ing them must of necessity be left; they will terms. There is no prospect of the reforma- have to make their decision upon these points tion of any class by such punishments while from time to time according to the varying their tendency is certain to accustom young circumstances of different localities, such as offenders to the infliction, and thereby to lessen the state of the labour market and the moral its deterring effects. If, however, it is found condition as well as the feelings and wishes of in the administration of the criminal law that the free colonists. short imprisonments must still be inflicted, the “ The papers lately presented to parliament committee see no reason why solitary confine- and referred to the committee lead to the inment should not form part of such sentences, ference that in many parts of our colonial pos subject to the formerly stated limitation in sessions there will be a readiness to receive and respect of time.

employ convicts after they have undergone a "Eighthly.--The evidence, both from France period of reformatory discipline either at home and elsewhere, of the evil effects produced by or in the colonies. The accounts received of the liberation of many convicts yearly as their the behaviour of the prisoners sent out from terms of imprisonment expire, would seem Pentonville and Parkhurst, and the opinions strongly to inculcate the necessity of obviating expressed in the colonies respecting them, are the great inconvenience of setting at liberty in very encouraging on this point. this country on the expiration of their sen- • The committee must not be supposed to tences those who had once been convicted of have either overlooked or underrated the serious crimes.

alarming state of crime and depravity which “ It appears that Christiana, the capital of appears to have arisen in parts of the AustraNorway, is so injuriously affected by the pro- lian colonies, but they think that these evils portion which the liberated convicts bear to the might be remedied by'alterations in the police, population-nearly one in thirty-that the in- the penal, the religious, and the moral system habitants have been called upon by the police to which the convicts, after undergoing reforto provide the means of their own security from matory discipline either at home or in the colo

In France, where between nies, are subjected, together with such measures 7,000 and 8,000 convicts are liberated yearly, as would remedy the existing disproportion of the superintendence of the police (surveillance), the sexes in the colonies. and the compulsory and fixed residence of the “ Ninthly.Respecting the expediency of convict, are found very insufficient, especially abolishing capital punishments the committee since the invention of railways. The residence found scarcely any difference of opinion. Alof the liberated convicts is found to be a per- most all witnesses, and all authorities, agree in manent danger to society. The system of im- opinion that for offences of the gravest kind prisonment (Reclusion), or of the Bagnes or the punishment of death ought to be retained. Travaux forcés, is of little effect in reforming, But the committee find considerable difference or even in deterring from a repetition of the of opinion upon the deterring effect of punishoffences punished, and the proportion of those ment generally. But it is remarkable that recommitted for new offences is not less than those who have actual intercourse with conthirty per cent. Thus of about 90,000 persons victs are they who feel the least sanguine as to tried in the whole kingdom, above 15,000, or this deterring or exemplary effect of penal inone sixth of the whole number, had already fliction, and who lean the most to make trial of suffered imprisonment, to say nothing of the punishment as affording the means of reforma

such persons.

Ilegal Associations for the Recovery of Small Debts.-- Construction of County Courts Act. 243 tion. The experiment that has been tried at It is avowed in the prospectus of these soStretton on Dunsmore in Warwickshire for cieties, that they are formed for the purpose of above twenty-eight years, and similar experi- enabling creditors to obtain legal assistance in ments at Horn near Hamburgh, and at Mettray recovering their debts in the county courts, at in France, and eleven other establishments in a small annual charge, and the duties of the imitation, during the last eight years, afford a solicitor are thus defined :-To issue from the highly gratifying view of the efficacy of refor. county clerk's office summonses to the debtors matory discipline, especially upon young to appear before the court;- to collect the neoffenders.

cessary evidence in support of the creditor's Lastly.-Upon one subject the whole of claims ;- to attend the courts on their behalf; the evidence and all the opinions are quite and to perforin all the other matters appertainunanimous—the good that may be hoped from ing to the recovery of the announts due from education, meaning thereby a sound moral the debtors, or to their commitment. and religious training, commencing in infant schools, and followed up in schools for older

The Incorporated Law Society having repupils ; to these, where it is practicable, indus- ceived complaints against these establishments, trial training should be added. There seems in submitted a case for the opinion of counsel, the general opinion to be no other means that and are advised as follows :afford even a chance of lessening the number of offenders, and diminishing the atrocity of

“The object of the societies appears to be, their crimes.

that the meinbers of it shall, out of a common “The committee, therefore, deem that they fund, assist each other in carrying on suits in should not be discharging their duty if they the small debts courts although they have no did not earnestly press these momentous sub- common interest in the subject matter of the jects upon the attention of the legislature. suits. This is clearly illegal. (Hawkins, P. Without raising any speculative question upon

C., book 1, ch. 83. Gwillim on Tithes, 4th vol., the right to punish those whom the state has 1381. Oliver v. Bakewell).” left in ignorance, it may safely be affirmed that “There may be difficulty in saying whether the duty of all rulers is both to prevent, as far such conduct can be proceeded against as a as may be possible, the necessity of punishing, violation of any of the statutes passed in early and when they do inflict punishment to attempt days against maintenance, but it is unnecessary reformation. The committee, therefore, strong

to consider that question, it being clear that ly recommend the adoption of effectual mea

maintenance is an offence at the common law, sures for diffusing generally, and by permanent independent of the statutes. (Hawkins, s. 28,

ch. 83. provisions, the inestimable benefits of good

Pechell v. Watson, 8 Mees. and training and of sound moral and religious in- Welsby, 691).” struction; while they also urge the duty of im- The council of the Incorporated Law Society proving extensively the discipline of the gaols have given notice to the solicitors of these assoand other places of confinement.”

ciations in order that they may withdraw there

from, or at least abstain from carrying out the ILLEGAL ASSOCIATIONS FOR THE illegal objects contemplated by them, otherwise RECOVERY OF SMALL DEBTS.

it appears the Law Society will prosecute all

the parties concerned. It is curious that the Small Debts Act, which

Independently of the illegality of such prowas supposed to have reduced the costs of ceeding, it is professionally improper in the legal proceedings to the smallest possible solicitors concerned in them to seek employamount, has so far already failed in its effect, ment from the clients of other solicitors upon that associations are springing up in different pretence of conducting their business parts of the country formed by tradesmen, cheaper terms than usual. It is open also to subscribing a small annual sum to remunerate the suspicion, that whilst they are thus conthe solicitor of the society for his services in cerned in small debt cases, they will seek emrecovering debts in these courts.

ployment from the clients of their brethren in One of these societies is called “ The Trades- more important matters. “Let it be reformed men's County Courts and Protective Association;" another “The Small Debts’ Court So.

altogether.” ciety;" and a third “The Association for the Protection of Trade.” The members subscribe CONSTRUCTION OF COUNTY COURTS an annual sum, for which each is entitled to the

ACT. . advice and assistance of the solicitor in any matter or subject within the County Courts Act, the members respectively paying the so- The 59th section requires that the plaint licitor the sums disbursed on their behalf:- shall be entered, stating the substance of the and in some cases a per centage of the debts action, and thereupon the summons, stating the recovered, as a fund for punishing fraudulent substance of the action, shall be issued under debtors.

the seal of the court; and the 2nd and 5th rules

on 244

Society for Promoting the Amendment of the Law. of practice require, that the plaintiff shall, if the sits inquiries have been directed to subjects of sum sought to be recovered exceeds 5l., deliver immediate importance, of which the remedies certain copies of the statement of the particulars were not so remote as to give to the subject no of the demand or cause of action, and that one other than a speculative interest; and while it copy thereof shall be annexed to the summons. adopts the often-repeated inaxim of advocating In some cases in which I was recently engaged the reform of all proved abuses, it takes pains for the defence, I took objections to the sum- to discover, and to prove them. It is for this monses, on account of the defendant's being latter object that it has so earnestly invited the only required to appear and answer the plaintiff assistance of non-professional members; of “in an action of contract, the particulars of men, who, unimbued with technical prejudices, which are hereunto annexed.”

can see, and often most acutely feel, the evils I contended that the substance of the action of a system, though they may be unable to ought to be set out (as if it were declared on) in contrive the practical remedy : cuique arte sua the summons ; and that the particulars of the de- credendum applies to the stretching of a shoe, mand annexed did not cure the defect, nor were more than to the discovery of where it pinches. alone sufficient ; for that above 51. both were Even on technical matters, and among practical requisite; the statement of the substance of the men, there is a technical bigotry, which often action being required by the act, and the par- prevents a man from being the best reformer ticulars by the rules of practice.

of his own professional practice. Sir Samuel The learned judge of the Somerset court, Romilly was great on the reform of criminal however, decided that it was not necessary, in law, and the late Mr. Justice Williams, when actions above 51., that the substance of the action a common law barrister, was the most formid. should be stated in the summons; that it was able assailant of the abuses of the Court of sufficient if the particulars were annexed; that, Chancery. When, therefore, we are answered in fact, both were not necessary; and that it by a non-professional friend, whom we invite was only necessary in actions under 51. for the to become a member of the society, that he substance of the action to be stated in the sum. knows nothing on the subjects of its investigamons. I doubt the prudence of too much laxity tion, we say, in reply, “Come, that we may of practice, and this point appears to me to in. teach you ;” and be assured, that in that provolve important considerations. I shall thank cess of teaching, we shall become self-insome of your readers for their opinion thereon. structed. This argument also applies, and A SUBSCRIBER FOR SEVERAL YEARS,

with greater force, to those junior members of the profession, whom a laudable diffidence

might otherwise deter from joining us. They SOCIETY FOR PROMOTING THE may doubt their own usefulness, till reminded AMENDMENT OF THE LAW. that the task of drawing up the reports of com,

mittees will generally devolve upon them, and THE FOURTH ANNUAL REPORT OF THE

that in the execution of that task, they will

have at once an opportunity of improvement council have the high satisfaction of congratu- conducted is another leading feature in the In presenting its fourth annual report, the and distinction.

The caution with which our proceedings are lating the society on its continued progress and prosperity. "Its income exceeds its expen- practice of the society; there is no acting upon diture, and more members have been elected impulses, there are no hurried reports, no hasty within the last twelve months than in either of resolutions. Giving their committee every due the preceding years ; nor is this advantage credit for the great care and continuous dilicounterbalanced by the death of any distin- gence with which their inquiries are conducted, guished colleague in the great work of law the general meetings of the society do not hesiamendment.

tate to send back for revision any subject which When the society looks back at the difficul- they do not believe to have been fully investities attending its original formation, the reluc- gated, on which new objects of investigation tance of mankind-and especially of profes- appear to have arisen in the course of discussional classes-to fall in with new views ; the sion, or of which the importance appears to fears of the timid; the rashness of the sanguine; This may give to our proceedings the appear

a more extensive range of examination. the apathy of the indolent; the apprehensions of pecuniary interests; the jealousies of official ance of slowness. It is at any rate an answer prejudice; and the host of objections which to the imputation of rashness. We do not ask these and other motives raised against its insti- to be judged by the number of our reports, but tution, it will find ample reason to rejoice that by their importance. Neither do we estimate so much of opposition has been allayed or

the value of our institution by its direct results neutralised; and that so many prophecies of alone; its mere existence has its practical addanger have been unfulfilled. If the society such a society ?” must induce a beneficial in.

vantages; the mere question "why is there had indeed been composed of rash innovators, dilettante legislators, and unpractical declaim- vestigation in the mind of the inquirer. Thus ers, its final failure would have been assured ;

it is that from this, and other co-operating it might have commenced in pomp, but it must causes, the amendment of the law is now rehave ended in insignificance. But practice, much "sounder views are entertained respecting

ceiving much more of popular attention, and ime, practice, has been its rule of action;

COUNCIL,

Society for Promoting the Amendment of the Law.

245 it, than at any former period. The enormous map. It has made another report on the increase of national wealth, and the corre practicability of connecting the principles of sponding complexities necessarily, not artifi- insurance with titles to land. These reports cially, incident to the multiplication of property, have been very amply discussed, both within multiplication not in the amount alone, but in and without the precincts of the society. The the natures and descriptions of such property, council feels itself specially called upon to will readily account for the public anxiety on acknowledge the services of this committee, this head. Men feel, in their daily dealings, which is still continuing its labours on several that the institutions of the Plantagenets and important subjects referred to its consideration. the Tudors are as little applicable to the ma- During a great portion of the last half cennagement of a joint-stock company, as their tury, the state of the Court of Chancery has suits of armour would be to the purposes of occupied the attention of statesmen and lawlocomotion. The courts themselves practically yers; while its delays, expenses, and vexations, demonstrate their incapacity to deal with un- have most severely taxed the patience and anticipated relations; and the arrears in every purses of its suitors. Three new judges, and one of the higher tribunals prove the necessity a numerous staff, have been added to its judifor new and increased jurisdictions.

cial strength; but the word “arrear” has not Under these circumstances your council call been banished from its vocabulary. Popular upon you in the fullest confidence, to continue opinion has long pointed to the Masters' Office, your exertions in extending the range of the and the system of references and reports, consociety's operations, by recruiting its numbers, firmations and revisions, as the main cause of and adding to the publicity of its proceedings. these obstinate evils. Your council, therefore, You will point with laudable self-satisfaction thought it a fit subject to be referred to your to the instances in which your labours have Equity Committee, and that committee has already prepared the public, and even the legis- made a report “on the improvements which lative mind, for great and important changes may be made in the Masters' Offices.” The you will turn to statutes already passed at the report contains many valuable suggestions, and suggestion of the society; and you may be has given rise to a very full discussion of the permitted to speculate on the influence which whole procedure of Courts of Equity. But its proceedings, or anticipated proceedings, the subject is very far from being exhausted, may have had in hastening other measures, and the council look forward to a series of which might otherwise have been indefinitely reports, and hope for numerous papers, on this delayed.

most important and most intricate branch of There is no branch in which these effects inquiry, have been more conspicuous than in that of The committee on criminal law has preReal Property and Conveyancing. Of this the sented a report on the various plans which Act for extinguishing Satisfied Terms is a very have been tried or proposed for the improveremarkable example.

Its utility has been ment of the treatment of criminals, and on the recognized both in courts of law and equity, principles on which punishment ought to be and its provisions have been found to be awarded. This subject was also very fully attended with those beneficial results in prac- discussed ; and the society had the advantage tice which you anticipated from them. We of a draft report, prepared by Mr. M. D. Hill, have high authority for stating that in one pro- which, though it differed in some respects from perty alone several thousands were saved dur- the report which was adopted, contained very ing the first year of its operation.

valuable suggestions. The council have had We noticed in our last report that a com- the gratification of knowing that in the subse. mittee of the House of Lords, composed of quent discussions on secondary punishments members entertaining great diversity of opi- which have taken place in both Houses of nions on most other points, had unanimously Parliament, during the present session, the required a thorough revision of the whole views contained in the report of our Criminal subject of conveyancing, and the disuse of the Law Committee, which were dietinctly brought present prolix, expensive, and vexatious sys- under the notice of the House of Lords by the tem.” This has led to the appointment of a noble president of this society, were very genecommission to inquire into the measures neces- rally recognized and adopted. sary for carrying the wishes of the lords into Another report from this committee, as to effect; and it is now shown by the most whether juvenile offenders might not be advanunequivocal signs, that not only the great tageously submitted to the jurisdiction of the landed proprictors, and the general body of the petty sessions, has also been made the subject public, but a great majority of the profession of legislation. The bill has passed the Comof the law, are prepared for the extensive mons, and will probably become law. change which such a resolution demands. Viewing with great interest the subject of Concurrently with these demonstrations, during the administration of justice in our numerous the present year, your committee on the Law colonies, and convinced that the hold which a of Property has continued its investigations on full and implicit confidence in the law exere the subject, and has presented a report on the cises on the affections of a people, long after propriety of establishing a general map of the military or any other force would fail, affords lands of England and Wales, and on the ma- the best security for allegiance to the mother terials now in existence for making such a country; and peculiarly attracted to the ques

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