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to the magistracy, as an innovation upon the trial by jury, and a superseding of those judicial formalities so justly considered essential to the protection of innocence; they will be inclined to think, with an old French criminalist, Ayrault, that in proceedings too summary, 'la chaleur, l'indignation, la colère y étant encore, poussent non seulement les parties, mais les témoins, mais les juges, mais l'auditoire-toutes choses avecques le tems passent bien plus humainement qu'à la chaude.'
These, unquestionably, are the evils to be apprehended from the proposed alteration of the law; their compensating balance, however, is to be found in the application of a prompt and more certain, though less severe punishment of the young offender, in sparing him the pain of a long imprisonment before trial, and in rescuing him from the chances of corruption afterwards, by placing him in an asylum where, sheltered from the contaminating air of desperate ruffianism, he may, by severe mental and bodily discipline, be made to feel the curse of crime, and from which he may be in due time restored to society a better not a worse being. Upon principle, and in analogy to other parts of our domestic jurisprudence, we are at a loss to conceive why one justice should be enabled to commit a boy to gaol for six months for taking a peach, or twelve months for stealing a dog, and power withheld from two justices to punish him for stealing a chicken. These are some of the anomalies that are still permitted to deform our criminal code, and which the projected law, if permitted to stand as it is at present framed, will only tend to increase; for the very offence which most fills our gaol with juvenile depredators would not fall within the compass of it, viz. picking pockets-the school in which infant thieves are initiated in the art and mystery of their trade. It is upon the slashed pocket of the lounger that the untutored hand generally first tries its skill; yet in such respect does the law affect to hold our persons, that even the skirts of our coats become objects of its especial protection; and he who presumes, novice as he may be, to dislodge a handkerchief, is considered guilty of what, till lately, was grand larceny, and is still liable to punishment of the higher order. The act, to be really operative and beneficial, should be made to extend to all stealing from the person without violence, with perhaps some greater limitation of the powers delegated to the justices: their jurisdiction might be limited to offenders whose age does not exceed sixteen years; and as a safeguard to innocence and a prevention of any mischief that might arise from a proceeding conducted too much à la chaude,' it might be provided that the justices shall not award their sentence until after a certain lapse of time, or that the offender shall be remanded to the next petty sessions
which usually in the country, we believe, take place every week or fortnight in the metropolis, perhaps, where those who sit in the police courts are for the most part members of the bar, and their acts more under the controul of public opinion, such delay might not be altogether so necessary. In further confirmation of the expediency of making some alteration in the law of larceny, as it affects juvenile offenders, we will submit a short extract from the last Report of the Society for the Improvement of Prison Discipline, which, for the good sense, enlightened views, and philanthropic spirit that pervade every page of it, merits the highest commendation:
Of the extent of crime among the youth of the metropolis an idea may be formed from the fact, that while in the last year the number of prisoners who passed through Newgate, above the age of twenty-one, was one thousand two hundred and sixty-two, those under that age amounted to one thousand six hundred and sixty-nine. It is also lamentable to state that, in the House of Correction, at Brixton, more than one half the number of prisoners were lately found to be under twenty-one. The causes of the evil may be briefly told. Nothing tends more powerfully than pauperism to weaken the natural affections and destroy the sense of parental obligation; whatever, therefore, contributes generally to create indigence among the poor at large, operates with peculiar severity upon their offspring. Of the crowds of boys who inhabit our prisons and infest our streets the depravity of an immense proportion may be traced to the want of care and to the neglect and criminality of their natural protectors. Numbers are without a parent or friend, and derive their subsistence by mendicity and theft. They are frequently committed to prison for short periods; on being discharged, their depredations are renewed both from habit and necessity, until, becoming the associates of old and desperate offenders their career is at length terminated by transportation or capital punishment.'
A very useful clause might, we think, be introduced into the proposed bill, extending the authority of parents by enabling them to call upon the magistracy when they have just cause of dissatisfaction with the conduct of their children, to correct them by imprisonment or otherwise. The absence of a law of this nature is incessantly felt, particularly in the metropolis, where parents are daily presenting themselves at the police offices, under the impression that such a power exists somewhere, beseeching the justices to interpose their authority, and by a timely chastisement snatch their offspring from infamy and ruin. By the Code Napoléon, the father of a child under sixteen may cause him to be imprisoned for any time not exceeding a month, and for this purpose the president of the tribunal of the district is bound at his, the parent's request, to issue a warrant of detention; above
sixteen, and until he is of age, or emancipated, the father can only ask for the detention of a period not exceeding six months. He must apply to the same authority, who, upon consulting with the procureur impérial, may grant or refuse the warrant, as he pleases, and in the first case may abridge the time of detention solicited by the father. This proceeding is attended by no other judicial form than the warrant of arrest and imprisonment, on the face of which the cause of detention is not expressed. The father is obliged to sign a bond for the payment of all expenses, and the supply of necessary food, &c. He may, if he pleases, cause the period of the child's imprisonment, so requested by him, to be shortened; and if the child again offends, the same process may be resorted to for further correction. This appears to us to be a most salutary law; were some enactment of the same kind to be introduced into this country, hundreds of both sexes might, we doubt not, be saved from destruction.
Before we take our leave of this useful bill, as proposed by Sir E. Wilmot, we would call his attention to an error which has crept into many recent acts of penal legislation, and which has been adopted by him. In the sketch of an act appended to the Letter, there is this clause, and if any person so convicted shall be afterwards accused of simple larceny before one or more justices of the peace, then such person shall be proceeded against in the manner pointed out by the various statutes now in force respecting larceny.' This is specious in theory, but defective and unsatisfactory in practice, from the difficulty and frequently the impossibility of ascertaining the condition on which the higher and severer penalties are made to depend; hence, what is always to be deprecated, uncertainty and inequality of punishment: for example, a lad who has chanced to commit his second offence in the same parish or county in which his first was done, is transported; whilst another, infinitely more wicked, who commits his fiftieth offence in a different county, escapes with only trifling punishment, from the manifest impossibility of the justices in Oxfordshire knowing what has taken place before the justices in Middlesex.
Such points after all, however, are but as the spots on a diseased limb, which must be lopped off before the constitution can recruit itself.
In every county throughout England crime has unquestionably, within these few years, so rapidly and fearfully increased, as to shake all confidence in either public or private security. We refer to a paper in the last number of this Journal (on Mr. Peel's improvement of the Criminal Law) for the painful details: the result is, unquestionably, as we have now stated it. And when
it is considered how small a proportion the number of the detected bears to that of persons engaged in the perpetration of similar offences who remain undiscovered, or escape committal, either from want of sufficient evidence, or from being discharged or summarily punished by the magistrate, the statement becomes truly terrific, and will be found, we fear, without parallel in the annals of any other civilised country. Allegiance and protection are, we know, reciprocal; where a state demands the one, it owes the other; and when it affords it not, or affords it ineffectually, the first principles of the social compact are contravened. If, after all allowances for the imperfection of human government, injuries may be offered repeatedly and constantly, with impunity, to our persons and property, the form of government becomes a matter of indifference. If men suffer, what matters it, whether it be by the act of a licensed or an unlicensed robber, a Janissary or a Jonathan Wild? Who, we ask, can look without fear upon the mass of crime which the statement to which we have referred establishes,-upon the courses of such mischievous bodies as these, perpetually disturbing without check the order and equilibrium of society, and which, like other mischievous bodies in the physical world, can only be controlled by a systematic and overpowering resistance. Such a state of things, it is needless to remark, must argue some gross defect either in the laws themselves, or their administration; and whichever it be, it is equally the duty of the government to probe the mischief. The great and interesting problem to be solved with us especially, will be the mean, the just mean, which will best unite the benefit of public security with that of a sufficient power over, and punishment of, offenders. If too much power is given to ministers of justice, or if unfit persons are appointed for its application, both liberty and innocence are endangered if too little power is delegated to them, or there is a deficiency of physical strength to carry their will into effect, then is public security equally endangered from impunity; and in this country, unhappily, from the defective state of its criminal jurisprudence, particularly of that branch emphatically styled police, we have, in a greater or less degree, all these difficulties to contend against.
We have no sort of doubt that the primary defect in our present system, and the proximate cause of the immense majority of criminal acts committed, is no other than our want of an organised power-a criminal force throughout the kingdom, with functions well defined, vigilant, active, and prompt to give effect to whatever authorities are recognised by the constitution for the repression of crime. It is the safety of sinning that is now the great scourge of society. Qu'on examine la cause de tous les
relâchemens, on verra qu'elle vient de l'impunité des crimes et non pas de la modération des peines.' (L'Esprit des Lois, liv. vi., c. 12.) With so many chances of escape, punishment, however severe, loses half its terrors, its intimidative effects being in the ratio of its certainty.
The insufficiency of the existing means for the repression of crimes, cannot justly be ascribed to a want of judicial power, since there is so much that still lies dormant in our books, but rather to an indiscriminate adherence to ancient forms and institutions, not as they were, in their origin, vigorous, and even more than adequate to their occasion, but as they now are, in their decay, and when they have become the mere shadows of antiquity. When we look at the mutual suretyship by which every man became responsible to the state for the conduct of his neighbour,-at the hue and cry (not of Mr. Stafford) with which the suspected felon was pursued with horse and horn from vill to vill,-at the power of the sheriff who could rouse and arm a whole county in an instant, and feel that all these have pased away, and nothing been devised in their place; when we consider, too, that the same judicial apparatus that was in use in the reign of Edward III., for the preservation of order and upholding public and private security, is now, when worn out and utterly inadequate, employed to control a population of nearly thirteen millions, one-tenth of which is in a state of pauperism, and consequently on the confines of crime, who can for a moment remain insensible to the necessity of remodelling the police of this country?
Police, in our view of the subject, when rightly understood, its limits and functions well defined, is the base on which men's liberties, properties, and social existence repose. Its functions may be divided into three branches, the executive, the antejudicial, and the judicial. The first is partly dependent, and partly independent, of the two last; its operations are preventive or protective; those of the antejudicial, detective; of the judicial, corrective. The character of the preventive should be watchfulness, constant but cautious, over the first approaches to crime, or, rather, its earliest manifestations, so as to leave to the evildisposed no hope of accomplishing their wicked designs.* principle of the preventive branch of its operations, strictly so termed, (for all penal laws may be said, by intimidation, to prevent,) is founded on the good that thereby accrues to the offender -to the subject and to the state-to the offender, as being the * There is a striking aphorism of Lord Bacon on this very point, in speaking of universal justice: 'In curiis censoriis, omnium magnorum criminum et scelerum actus inchoati et medii puniuntor; licet non sequatur effectus consummatus: isque sit earum curiarum usus vel maximus; cum et severitatis intersit, initia scelerum puniri, et clementiæ, perpetrationem eorum (puniendo actus medios) intercipi.'
VOL. XXXVII. NO. LXXIV.