The matter is one which is not only specially—I might almost say supremely—interesting to a judge; but it is one on which he has a kind and degree of experience altogether peculiar to his own position. No one but the judge who actually passes the sentence knows the difficulties by which he is surrounded in doing so, or the considerations by which the discretion entrusted to him is in fact guided. He soon learns that no one who does not listen attentively to a trial from end to end can really form much of an opinion on what ought to be its practical result, and that nothing can be more deceptive and incomplete than the accounts of it which are given in newspapers, necessarily in a highly condensed form, and constantly omitting circumstances which, though of little interest to the public, have much to do with the sentence.
The importance of the question to which Sir William Harcourt has directed attention is undeniable, but I feel that the solution of it must be slow, gradual, and partial, and that to attempt to solve it in any trenchant, conclusive manner would be a great mistake, and, indeed, a great public misfortune. It cannot be dealt with at all until its real nature and the difficulties which beset it are fully understood and solved—so far as they are capable of solution— one by one. A few specific suggestions may, I think, be made, and these I will mention in their place in the course of this article; but the most important and general conclusions may, I think, be thus stated. No grounds have been shown for a general reduction of sentences; and uniformity of sentences could be secured only by a minute and fundamentally arbitrary legislation, which, practically speaking, it would be impossible to enact, or to administer in a satisfactory manner if it were enacted.
The only reason suggested for a general diminution in the severity of punishments is that there has been of late years a diminution of crime. I cannot myself follow the argument. The efficiency of punishment in the prevention of crime may, of course, be overrated. No doubt many other circumstances have had an influence in that direction; but surely the fear of punishment can hardly be denied to be one of the influences which restrain people from committing crimes, and the proposal to diminish its severity because it appears to be obtaining its object is to me unintelligible. A diminution in crime might be a good ground for reducing the number of the police, or the number of the prisons, or the number of judges and magistrates; but I do not see what it has to do with the severity of punishment. The vigilance of the police has contributed to check crime. Ought the police to be less vigilant because crime has become less common?
It seems to me undesirable to put forward such proposals, except upon most mature reflection and with reference to definite suggestions for the alteration of the law. The administration of criminal justice is necessarily the most invidious part of the whole government of the country. Nothing can be more easy than to raise a cry against it as being over-severe. Nothing can more effectually weaken the hands of those who administer it or diminish the moral weight attaching to their sentences. Moreover such criticism must always, from the nature of the case, be criticism in the dark. The widest experience can bear only upon what has happened. It is impossible for anyone to be sure as to what has not happened. How can anyone know what has been the operation of the present system in the way of preventing crime by intimidating those who intended to commit crimes? I have heard of particular cases in which severe punishments of crimes once common in particular places had been followed by a great diminution of the number of such crimes in those places, and in which the converse has happened after unusually light sentences. How far in these instances post implied propter it is of course difficult to say; but the sudden adoption of a great change in the severity of sentences without any other reason for it than a diminution of crime would, I should think, operate as an invitation to all persons hesitating on the brink of dishonesty or violence to take courage and sin vigorously, as it would be understood as an official announcement of the doctrine that the objections to crime have been overrated, and that it is not after all such a serious matter as it has hitherto been supposed to be.
Those who have to superintend the actual execution of sentences of imprisonment and penal servitude are under a special temptation to underrate the preventive effect of punishment—a temptation which it is specially difficult for humane and amiable men to resist. In the discharge of their duty they have to concern themselves principally with the effects produced by the punishments which they have to inflict upon the individuals on whom they are inflicted, and they are probably quite right in thinking that, if regard is had to them only, a shorter sentence would have as much moral effect as a rather longer one. A man who has been sentenced to penal servitude may very probably have broken off bad associations and habits as effectually, and have learnt all he is capable of learning in the way of discipline and self-restraint as fully, and have received nearly as strong a warning against a repetition of his offences, at the end of a five years' sentence as at the end of a seven years' sentence; and from this it is easy to argue that a sentence for five years would have answered every purpose as well as a sentence for seven years. It may also be argued with much plausibility that very long sentences—fourteen years, twenty years, penal servitude for life—can never do good to the criminal. To undergo the discipline of a convict prison for a long term of years, and to have no other society than that of convicts for all those years, can never be anything but a terrible evil to anybody; but punishment is not intended to benefit the sufferer. It is distinctly intended, to a certain extent, to injure him for the good of others; and this consideration enters more or less into almost all punishments, and is the dominant one in the cases in which punishments of great severity are inflicted. It reaches its highest point in the case of the punishment of death. Very long sentences of penal servitude have no doubt much in common with the punishment of death. They are intended to prevent the criminal from repeating his offence, at all events for many years, and also to set upon his crime a mark of infamy, and to ratify and approve as far as a judicial sentence can the feeling of indignation and disgust which great crimes produce in the public mind. There is nothing in the administration of a convict prison to bring these matters before the minds of those who are charged with that duty. It is unavoidable that the judge should have his attention more strongly directed to the crime, and that the officials of the prison department should think more of the criminals. Neither point of view should be neglected, but the point of view most likely to be neglected in the present day is that of the judge. The whole tone of every kind of appeal to the public, by literature and art, by public speaking, has for a generation or more been on the side of pity. The whole tendency of the age is in the direction of regarding vice and crime rather as diseases qualifying their unfortunate victim for a hospital than as causes of just hatred and vindictive punishment. There is no arguing on questions of feeling and temperament. The common ground on which alone such a question as that of the proper amount of legal punishment can be discussed is that it should be enough to prevent crime, as far as it can be prevented by punishment, and not more than enough. All that I say here is that crime is prevented by punishment, not only by reforming criminals, but also, and probably more distinctly, by disabling them from committing crimes, by terrifying others, and by justifying and exemplifying, and so maintaining and encouraging, the sentiment of indignation and disgust which great crimes properly excite in the public mind. To take an obvious instance or two, I would ask whether, if a lenient sentence had been passed on the persons who were convicted two years ago of the dynamite plot, it would not have been universally felt that the judges who tried the case had failed in their duty, and had done what they could to discourage a sentiment which, though it certainly required no stimulant, it was their duty to justify and exemplify? I would also ask whether, when by a mere accident an infamous assassin escaped the punishment to which he had been justly condemned, it was not generally felt that an unhappy failure of justice had in fact taken place?
There is one circumstance connected with this matter to which I shall have to refer again, and which appears to me highly important. I am convinced by many considerations that the sentences passed on criminals are closely watched and jealously scrutinised, especially by those who are themselves in any degree likely to commit crimes. The local newspapers canvass closely the sentences passed at the assizes. Prisoners constantly make observations which show that they know with a remarkable degree of accuracy what they have to expect if they are convicted. Anything at "all unusual, especially in the way of severity, is sure to attract observation and comment. In short, the administration of criminal justice is more closely watched, and possesses greater interest for a considerable class of the community, than is commonly supposed by those whose attention is principally directed to more interesting and less unpleasing topics of a public kind. This has a bearing on several of the points which I wish to discuss in this paper. On the question of a general diminution of the severity of punishment it bears in this way. Should any such general diminution take place, it will at once operate as an announcement, to all persons tempted to commit offences, that one motive for not committing them is henceforth to be appreciably diminished in weight.
As to the uniformity of punishments, the object, speaking generally, may be admitted to be good; but I think that its importance is easily exaggerated, and that there is also much exaggeration as to the want of uniformity in sentences alleged to exist. If two persons convicted of the same offence, under the same circumstances, were to be sentenced to different punishments by the same judge without any reason being even alleged for the difference, or if the same judge were to pass different sentences for similar crimes without assigning any reason for it, in the same or neighbouring places, no doubt a feeling of injustice would be produced; but if different judges appreciate differently the moral guilt or public danger of similar offences, and pass upon them different sentences, and if each of these sentences is of such a nature as not to startle or shock the public as being oversevere—suppose, for instance, that of two persons convicted of forgery, one is sentenced to ten and another to seven years' penal servitude— what is the fair inference? Simply that different opinions are held by two persons, each of whom is by law required to act on his own opinion. The one prisoner has had better luck than the other; and what then? Under all circumstances there must be a good deal of chance, not only in the punishment of crime, but even in its occurrence. One man is guilty of an act of criminal negligence which endangers the lives of hundreds of persons, but they escape. He is guilty of no offence at all. Another by a less blamable act of negligence causes the death of one person. He is guilty of manslaughter. One man administers to another some innocent substance believing it to be a deadly poison. He commits no offence at all. But for a mere accident he would have been a murderer. One man is tried by a more timid and scrupulous jury than another, and is acquitted on the very same evidence on which the other is convicted. Is there injustice here? There is bad and good fortune, but no more. Unless all discretion as to punishment is taken from the judges, there will always be room for more or less good or bad fortune in meeting with stricter or more indulgent judges. So long as a given punishment is not unusually severe, the criminal sentenced to it has no right to complain, and the public need not be disturbed. The comparative good fortune of some other criminal who has committed a similar offence does not really affect the matter.
To go into the subject more closely. What is the existing discretion? and why is it given? How is it exercised?
There are two crimes and two only in which the judge has no discretion at all. These are high treason and murder, in each of which the punishment is death. The propriety of executing sentence of death in cases of high treason must always depend so much upon political considerations, that it seems right that the matter should depend upon the views of the executive authority, especially when the exceptional character of the crime is borne in mind.
The case with respect to murder is very peculiar and instructive. Carefully considered, it shows that a discretion must in fact exist in the punishment of all crimes whatever, and that if the judge is not invested with it, it will be exercised by the executive power by the use of the prerogative of mercy.
The definition of murder is open to criticism, [I have discussed the matter at full length in my History of the Criminal Law, vol. iii. pp. 1-108] and on many occasions I have minutely discussed it, and suggested ways in which it might he altered; but, however careful the definition might be, it would include many cases in which it would, at least in the present state of public feeling, be impossible to carry out sentence of death. The most careful definition, for instance, would include infanticide by a mother; murder committed by the consent or at the request of the person murdered; murders committed under provocation, not sufficient to reduce the crime to manslaughter; murder committed from motives of compassion or despair, as where a mother throws into a canal a child for which she cannot provide, or where a man, in mercy to the sufferer, causes the death of a person suffering from hydrophobia. In these cases the judge has no discretion; he must pass sentence of death even when he knows that it will not be carried out. It may not be proper to give it to him; but the Home Secretary has such a discretion, and I can well believe that the exercise of it must be the most painful part of his duties. Not only must he say when death is to be inflicted, but also what punishment is to be substituted for it. There can hardly be a stronger illustration of the necessity of a discretion of this sort or of its painful and invidious character. The violence of the controversies to which its exercise gives rise from time to time, and the unreasonableness of those who take part in them, are generally known; but no means of relieving the Home Secretary of so arduous and painful a duty have ever been devised, and it seems probable that it will be found as difficult to relieve the judges from a duty in all criminal cases of which in regard to capital cases it has been found impossible to relieve him.
In two cases of very rare occurrence—piracy, with certain aggravations, and burning of dockyards, &c.—a discretion is vested in the judge. He may either pass sentence of death, or he may order it to be recorded; the effect of which is the same as if the prisoner had been sentenced and reprieved: but these are mere curiosities.
In all other cases, as far as I am aware, the sentence to be passed is in the discretion of the judge, subject to a maximum punishment generally fixed by statute, and in the case of a few common law misdemeanours unfixed, though tacitly recognised. There is only one instance of a crime which occurs in the common routine in which a minimum punishment is now fixed by law. By 24 &25 Vict. c. 100, §61, the offences therein mentioned must be punished by ten years' penal servitude at least.
Maximum sentences vary remarkably. Penal servitude for life, for fifteen years, for fourteen years, for ten years, for seven years, and for five years, imprisonment with hard labour for two years, all occur, and there are others which I need not notice. I may, however, observe that imprisonment for any term not exceeding two years, with or without hard labour, is in all cases (with the single exception above referred to) an alternative sentence to penal servitude. [See my History of the Criminal Law, vol. i. ch. xiii. pp. 457-92]
The history of this branch of the law is remarkable; but it is unnecessary here to state more of it than that it has been arrived at, not indeed upon any deliberate or comprehensive survey of the whole subject, but after long and wide experience of the evils of a system of punishments definitely fixed by law. Down to about sixty years ago, the punishment of all the more serious crimes was, in theory, death; but this, in practice, was mitigated by a discretion given by statute to the judge—in the first instance to reprieve persons sentenced to death, and afterwards to abstain from passing sentence of death and to order transportation in place of it. When the Acts known as Peel's Acts were passed, between 1825 and 1830, the punishment of death was restricted to a comparatively small number of cases, and a wide discretion as to transportation and imprisonment was given to the judges. This policy was followed and extended on various occasions; but, on the other hand, a large number of statutes still remained in force which imposed punishments in particular cases varying upon no principle at all. In some cases they gave the judge no discretion at all as to punishment. In a great many they gave him only a very narrow discretion; prescribing, for instance, minimum punishments of seven years' transportation. There was, indeed, so little regularity in these punishments that the Criminal Law Commissioners, who reported on many occasions down to 1847, found that there were in 1839 thirty classes of punishments for felonies and ninety-six classes of punishments for misdemeanours. In 1846 this state of things was to a great extent mitigated by an Act (9 & 10 Vict. c. 24) which abolished (in a clumsy way) all minimum punishments; and the Consolidation Acts of 1861 brought about the existing state of things.
Should this discretion be maintained, or can it advantageously be restricted? I think it ought to be maintained, and that any attempt to limit it, either by direct legislation or by rules made amongst themselves by the judges, would be unsuccessful and would produce inconveniences and scandals far worse than any which can at present be alleged with any plausibility to exist.
The reasons are these. First, there is no absolute relation between any crime and any punishment. A fanciful notion was formerly entertained by some persons that there was some sort of equipoise to be effected between crime and punishment; that, if A were murdered by B, some imaginary balance would be brought to its proper position by putting A to death: but it is needless to waste time over such imaginations. The object of punishment is the prevention of crime in various ways; but it would be idle to try to put into any definite shape such a relation between conduct and punishment as will tell you in any particular case how much of the one will be needed to prevent the other.
Every punishment, therefore, which is allotted to any crime will be found to stand in an arbitrary relation to it. I do not of course deny that there are or may be customary punishments for particular offences. On the contrary, I say that in practice there is a much nearer approach to uniformity in the matter than is commonly supposed. What I assert is that there is no principle on which it can be determined whether a man should be sent to prison for a given offence for six months or for nine months, and that it is useless to search for one.
But besides the arbitrary nature of the relation between crimes and punishments, it must also be remembered that all definitions of crimes include acts of the most various nature, and capable of being made more or less dangerous to the public, and more or less morally bad, by the presence or absence of a very great number of circumstances to which regard ought to be had in deciding on the punishment to be inflicted. It is practically impossible to foresee and define these circumstances, beforehand; and, if they could be foreseen, it would be absurd to attach by law to their existence definite consequences in the way of aggravation or mitigation of punishment.
I could fill this article with illustrations of the truth of these assertions. I will give only one or two. Theft may be defined simply enough, for common purposes, as the act of wilfully misappropriating the property of another; but this tells us absolutely nothing as to the moral character or public danger of any particular theft. A man sees some trifle drop from the pocket of another, picks it up, and keeps it. This is theft. A man, as the result of an artful conspiracy concerted with other persons, by the use of false keys, and by corrupting servants, steals a quantity of gold from a chest of bullion in a bank. This also is theft; and any number of intermediate cases may be suggested.
Bigamy hardly requires definition. It is in every case identically the same crime, but in point of guilt different cases of bigamy differ enormously. It always contains the element of a fraud upon the public, and an abuse of the marriage ceremony; but it may be a rape by fraud. It may be a mere act of private immorality. A man whose wife has deserted him, and who marries another woman, she knowing the circumstances and running the risk, stands in a wholly different position from the man who basely deceives a respectable person into becoming his mistress under the impression that she is becoming his wife. A woman who commits bigamy, as a rule, inflicts hardly any injury on the man who supposes himself to be her husband. Any number of intermediate cases may be put distinguished by the conduct and character of the parties.
If the arbitrary character of the relations between crime and punishment, and the fact that definitions of crimes must of necessity cover many offences of the most different character, be borne in mind, it will follow that one of two courses must be taken. Either a wide discretion in respect of punishment must be left to the presiding judge, or a completely new penal code must be enacted, prescribing in minute detail the punishments to be inflicted in different cases. I will consider shortly what would be implied in the enactment of such a code, in order to set in a clear light the utter impossibility of drawing, passing, or administering it.
In the first place, it would not answer the purpose for which it would be introduced unless it took the retrograde step of re-establishing the system of minimum punishments. The mere lowering of maximum punishments would, no doubt, prevent the infliction of exceptionally severe punishments in exceptionally bad offences; but in practice it would make very little difference, for the maximum punishment authorised by law for any given offence is in practice very rarely inflicted.
The code would have to enact in respect of every offence which it defined both a maximum and a minimum punishment, and it would also have to say in every instance how far each maximum and minimum was to be affected by the presence or absence of particular circumstances of aggravation or mitigation.
In the first place, such a code would be an infinitely more arbitrary system than the present one. If the relation between punishment and crime is, and always must be, at best arbitrary, the more elaborate you make the rules the more harshly will that fact be brought forward. Besides, as matters now stand, there is, as I have already said, and as I shall show more fully immediately, an approach to a customary scale of punishments, which, to a great extent, conceals the absence of any principle, and supersedes the necessity for one. The benefit of this would be entirely lost by such a code as I am considering.
But what sort of thing would such a code be? It is no easy thing to define crimes at all; but the difficulty of giving general definitions authorising the exercise of a wide discretion as to punishment has been to a great extent overcome, and might no doubt be overcome in all cases. If, however, this discretion is not to be given, the principal circumstances of aggravation and mitigation must in every case be added to the definition, together with the corresponding variations in punishment.
I do not think it would be possible to foresee or to enumerate anything like all the circumstances which ought to be dealt with in this way; but the following are some of those which must always be considered: the age, the sex, the character of the offender; the sort of temptation to which he was subjected; the amount of deliberation, ingenuity, and contrivance which he showed; his acting alone or in concert with others; if he acted with others, the prominence of the part which he took as a ringleader or a subordinate.
To these personal considerations others of a more general kind must often be added. The offence may have become common, and it may have become necessary to check it by a severe example. Such was the case a good many years ago when robbery with violence, and especially garroting, became common in London. A similar outbreak of crime, directed more particularly against the police, took place about ten years since in Birmingham. And I have heard of similar outbreaks of the crime of arson in Kent and elsewhere.
Besides all these matters, the question of habitual crime is to be considered. In such a code as I am discussing, it would be necessary to lay down a definite rule as to the effect of a previous conviction; and, unless the rule laid down entered a good deal into particulars as to the effect of previous convictions for different sorts of offences and at different periods of time previous to the later conviction, it would be certain to operate with intolerable harshness in many cases.
Nothing less than a compliance with these requisitions would really do away with the exercise of a very wide personal discretion in the judges in the matter of punishment; and no one who has any practical acquaintance with the subject can fail to see that this is an insuperable difficulty in the way of such an undertaking. The impossibility of it will appear from a specimen of the sort of result which must of necessity be produced. The code would consist of enactments in a form of which the following instance gives a slight and imperfect idea. I do not pretend to suggest, even for the purpose of illustration, to fill up the blanks which would specify the punishments.
Whoever commits theft shall be subject to the following punishments:—
If he is above seven and under fourteen years of age, and is found by the jury to have acted maliciously, . . .; if he is above fourteen and under twenty-one, . . .; if he is above twenty-one and under forty, . . .; if he is above forty and under sixty, . . .; if he is over sixty, . . .; if the offender is a female, the above-mentioned punishments should be reduced by . . . unless ... If the person convicted has acted under special temptation, the punishments which he would otherwise have incurred shall be varied as follows:—
The following are instances of special temptation. Where the offender was in great want, where an opportunity of committing the offence was unexpectedly afforded to the prisoner by the negligence of the prosecutor; any other case which the jury might regard as similar to these or either of them.
Any one accustomed to the subject would see at a glance the absurdity of such an enactment, that it would not be nearly elaborate enough. Other rules would be wanted. For instance, it would be necessary to lay down rules as to the effect of drunkenness on punishment—a matter of no small difficulty, as it may act either way. It is one thing for a man to be overtaken with drink on some special occasion; quite another for him to get more or less drunk in order to screw up his courage to commit an offence.
There are two special reasons, each of which separately would make it practically impossible to pass any Act of the sort. The first is that, whereas a penal code to be worth having must be based on the existing law, and must be a change rather in form than in substance, the criminal law as it stands does not deal with crimes in such a manner that it could be made the foundation of such a penal code as would be required for the purpose of superseding discretionary punishments. The existing criminal law consists principally of a great number of statutes meant to provide for the punishment of acts which for some reason or other were either not provided for by the common law or were not supposed to be punished by that law with sufficient severity. The following are specimens of the list of distinctions which are established by the present law in regard to theft. [See my Digest of the Criminal Law, articles 324-328 inclusive. The explanation of these distinctions is given in my History of the Criminal Law, vol. iii. pp. 121-176] Stealing wills, stealing post letters and letter bags, may be punished by penal servitude for life. Stealing cattle or horses, stealing from the person, stealing to the value of £5 in a dwelling-house, stealing by a servant, may be punished by penal servitude for fourteen years. Stealing fixtures to the value of £5 by lodgers may be punished by penal servitude up to seven years; stealing other things than those specially mentioned may be punished by penal servitude for five years. If such a penal code as would supersede discretion in punishments is to be passed, the whole of this law must be repealed and an entirely new one substituted for it; for it would be utterly impossible to provide separate graduated scales of punishment for the different forms of theft which the existing law recognises—a scale for thefts from the person, for thefts of cattle, for thefts by servants, and so on.
I am far indeed from admiring the present law of theft. It might be greatly simplified and improved, and the maximum punishments which may be inflicted, as the law stands, for particular kinds of theft might be greatly reduced. It is difficult to see why stealing from a canal boat or on board a ship should subject a man to severer punishment than stealing in other places; but the simplification of the law and the lowering of the maximum punishments authorised by the present law would affect the actual administration of justice very little, for the reasons already given.
A second special difficulty is to be found in trial by jury. If the degree of a man's punishment is to be determined by such a code as I have tried to describe, the fact that he falls within its provisions must be charged in the indictment and found by the jury. They would have to say, not only whether A B was guilty of theft, but whether he was guilty of theft under any and which of the qualifications which, according to the code, would affect the degree of his punishment. I do not believe it would be possible to work such a system at all. The least bad result would be the introduction of an immense amount of intricacy and technicality into criminal pleading, which at present is perfectly simple. The utter bewilderment of juries would be a more serious matter; and the general result would be a system in which the existing defects of the law relating to punishments, be they what they may, would be greatly increased. So obvious are these remarks to every one who has had much experience of criminal law, that I do not think any one believes that the alleged defects of the present system could be removed by legislation. In one of the papers to which reference has been made, Sir Edward Du Cane says expressly:—'Nor would I suggest any too rigid restriction should be placed on the discretion of those whose office it is to pass sentences.' The Secretary of State considers that the general rules which he suggests should be 'subject of course to the necessary exceptions in particular cases.'
These qualifications are exceptions which practically destroy the rule to which they apply. In practice every case is exceptional; that is, it differs from all others in a variety of circumstances; and to speak of restrictions which are not to be 'too rigid' is to say nothing. There is no medium at all between a system of perfectly rigid restriction and a system of individual discretion.
The suggestion that the judges should make general rules amongst themselves in this matter appears to me to be open to the remark that, if they did so, they would be assuming a power which the Constitution has not given, and does not mean to give them. The law as it stands imposes upon each individual judge of a criminal court the duty of exercising his own individual discretion upon the cases which come before him. I for one should feel that I had no right to put off that responsibility on any other person or body of persons. Besides, I think that the difficulty of laying down such rules does not depend on the nature of the legislature by which they are enacted, but is inherent in the nature of the subject. It would be as difficult for the Council of Judges to say in what cases imprisonment and in what cases penal servitude should be inflicted, as it would be for Parliament to do the same thing; and the result when arrived at would probably not be more satisfactory in the one case than in the other.
In short, I do not think that the alleged defect in the law, such as it is, is one which can be solved by legislation of any kind, either by Parliamentary legislation on the one hand or by rules laid down by the judges on the other.
From these observations it follows that, practically speaking, a wide discretion as to the amount of punishment to be inflicted in particular cases must always be vested in the judges of criminal courts. It does not, however, follow that that discretion either is or ought to be wholly personal and subject to no regulation at all. By what then is it to be regulated? The answer is by custom and the pervading tone of public feeling. If, for instance, the question is asked why flogging or other forms of physical pain are not made more use of in the punishment of crimes, or why death is not inflicted in some cases in the place of long terms of penal servitude, it seems to me that the only satisfactory answer which can be given is that public feeling does not approve of it. In the same way it is difficult, indeed impossible, to say why a sentence of twelve months' imprisonment and hard labour should appear extremely severe for an ordinary theft, whereas one of three months would attract no attention; but there can be no doubt that such would be the case. I do not believe that any closer or more explicit rule as to punishments warranted by law can be given than this, that they should be such as are commonly inflicted in similar cases, and such as do not shock public feeling. This leaves, as I have already admitted, a wide range within which nothing more can be said than that the judge ought to exercise his discretion in good faith and with the closest possible attention to the circumstances of the case. Some will be more lenient, some more severe; but this, I think, is incidental to the infliction of punishment. If the most elaborate and precise rules were laid down so as to leave no discretion at all to the judge, the same thing would occur, though in an inverted form. In the one case different judges punish similar offences with different degrees of severity. In the other case the law would punish dissimilar offences with the same degree of severity. If the punishment of bigamy is discretionary, some judges will punish it more severely than others. If there is no discretion, a rape by fraud and a mere contempt of the law will receive the same punishment.
The notion, therefore, of obtaining the same punishment for similar offences is one which cannot be realised, and I may just observe that, even if it could, the same punishment would inflict very different degrees of loss and suffering on different people. When this is once fully realised, it will follow that all that can reasonably be expected from any system is that it should be so administered as to tend as much as possible to the prevention of crime, that it should be administered with all possible attention to the circumstances of particular cases, and that it should be in harmony with the settled habitual tone of feeling in the country.
Does the existing system fulfil these requirements? It would seem unfair to doubt that it has had its part in the diminution of crime which has recently taken place. But is it in harmony with public feeling?
There are many reasons to believe that it is. Courts of justice pass their sentences in open day under the inspection of innumerable close observers, and there is nothing to prevent and everything to encourage petitions or public remonstrances against undue severity. Now, if it is the case, as it certainly is, that a very great numerical majority of the sentences passed are acquiesced in, not only by the public but by the persons sentenced, does not this go far to prove that there is, in fact, something approaching to a tacit understanding as to the sentences which ought to be passed in particular cases, and that in the great majority of instances that understanding is acted upon?
Many other considerations point to the same conclusion, and suggest that there is much exaggeration in the complaints which are sometimes made of the inequality of punishments. I think, for instance, that if a man were sent to penal servitude for twenty years foT a burglary not accompanied by circumstances of very great aggravation, or for seven years for a common case of bigamy, or for five years on a first conviction for a common theft, such a sentence would attract criticism and remonstrance, would produce a petition for a commutation of the sentence, and would certainly lead to one. I will give some reasons for the opinion that such an unwritten scale of punishments does exist, and I will then proceed to give a few specific illustrations of what, according to my experience, it is.
When at the Bar I used closely to watch the sentences passed by different judges, and after a certain time I found that I could foretell with considerable accuracy what they would be. I recollect on one occasion seeing a list kept by another person of the sentences which he thought appropriate in a series of cases. They coincided curiously with those which actually were passed.
Under the present system, by which, generally speaking, only one judge goes on most of the circuits, the judges see and hear much less of each other's cases than was usual when they went circuit in pairs. At that time the judges continually consulted together on the sentences to be passed in particular cases, and it was seldom that there was any wide difference of opinion on the subject. I have more than once been on circuit with judges whose professional life had been passed in the Court of Chancery, and who had never seen a criminal court till they were set to preside in one. They have naturally been anxious to inform themselves of what was customary, and have usually wished to compare their views in particular cases with mine. I have found in every case that there was little difference between us, that they had learnt from other judges, to whom they had applied, very much what my own experience had taught me, and that such differences as there were were accounted for by the special circumstances of particular offences.
Again, I have observed (as I have already remarked) that prisoners know what to expect. They constantly make observations which show it, both when they are taken and when they are sentenced. Not only do prisoners know this, but they also know that, if their sentence is unduly severe, they can petition the Home Secretary for a reduction of it. But I believe that it is the usual practice to refer to the judge for his observations before a sentence is commuted, either on the ground of over-severity or on the ground that the prisoner has been unduly convicted. In many such cases the petition is delayed for a considerable time, and a commutation is asked on some special ground not inconsistent with the propriety of the original sentence. Cases, however, do certainly occur in which a sentence is commuted, and properly commuted, on the ground of its over-severity. I have no means of speaking positively on the subject, but from my own experience I should greatly doubt whether the number of such commutations was nearly as much as one per cent.
Passing from these general observations, I will enter somewhat more closely into detail, and will try to give some sort of notion of what in my experience this unwritten scale of punishments is—that is to say, what are the sort of sentences which judges at the assizes would probably pass in particular classes of cases without attracting any special attention. It would be impossible on such an occasion as this to give more than a few illustrations; but it would be possible to go in the same way through every branch of the criminal law.
The typical crime against property is theft. The distinctions between theft, embezzlement, obtaining goods by false pretences, and various other kinds of fraud without violence, are rather technical than moral. If we imagine a theft by a person neither very young nor very old, neither excused on the one hand by any special temptation nor aggravated on the other by special contrivance, conspiracy, or the like, I should say that three months' imprisonment and hard labour would be a common sentence. It is impossible to give anything approaching to a complete account of the circumstances which might either diminish or increase this punishment. Age, sex, weakness of mind not amounting to positive insanity, are obvious reasons for leniency. A respectable girl of fourteen or fifteen tells a little lie to get some small article of dress, and pleads guilty to an indictment for obtaining goods by false pretences. Imprisonment would perhaps inflict on her an injury for life. Every one wishes her to be forgiven. She has, as it is, been terribly frightened. Her mistress is willing to take her back and look after her. In several such cases I have known children to be discharged with a caution to take warning, and with a merely nominal punishment, or even none at all. On the other hand, the theft may involve treachery, and show more or less artfulness. A servant trusted with his master's property steals it. In such a case the three months might rise to four. Suppose, again, that the circumstances of the case suggested not only treachery but conspiracy. Suppose the thief was a grown-up clerk who had led an under servant to be the actual committer of the offence. In such a case the four months might rise to six. I should expect to find circumstances of unusual aggravation in a case of theft or fraud which was punished with nine months' hard labour on a first conviction, but many instances may be given in which such a sentence would be nothing extraordinary. Receiving is a worse crime than theft in many instances, though not in all. A person who received some particular article might be no worse, he might even be less criminal, than the thief; but, if the circumstances of the case are such as to show that the offender made a trade of it, he might properly be sentenced on his first conviction to seven or even ten years' penal servitude. Such a man is a fountain of crime and a corrupter of youth. If a man was one of a gang of wandering thieves, carrying on his trade by systematic false pretences, like those which are called ' long firm' cases, or if he was convicted of a deliberate offence under the Bankruptcy Laws, or if he picked pockets in a way which showed it was his regular business to do so, I do not think either twelve or eighteen months would be at all an unusual punishment. There are cases of theft which I think would, even on a first offence, call for the extreme sentence allowed by the law for simple larceny—five years' penal servitude. I refer to those in which the amount of property stolen is large, in which several criminals have conspired together, and in which great art and ingenuity have been employed. As an illustration I may refer to a gold robbery from the South-Eastern Bailway which attracted much attention many years ago. Three or four men, who had found out from the railway servants by what train bullion was sent from England to France, managed, by a long series of ingenious contrivances, to get one of their number into the carriage, where he opened with a false key the chest in which the gold was contained, took out as much as he could carry, substituted lead for it to prevent the lightening of the chest from being noticed, and returned to town with the booty, which he shared with his confederates who had given him the information, and enabled him to forge the key and to enter the carriage. For such a crime as this I think five years was too short a sentence, though it was all the law permitted in the absence of a previous conviction.
I may here remark that, though I do not think the value of the article stolen would in all cases form an element in the punishment of the thief, it may and ought to do so in many cases. If a pickpocket steals a pocketbook, it would be hard to measure the severity of his sentence by the value of the notes which the pocketbook happened to contain; but where the value of the stolen goods is known to the thief beforehand, and especially where he employs any special degree of cunning to effect his object, he ought to be punished with special severity. The stake for which he has played is a high one, and the strong inducement to crime which is offered to a bad man by the hope of obtaining rich plunder ought to be counterbalanced as far as possible by the prospect of severe punishment.
The offences in which fraud is effected by some sort of force vary greatly in regard both to public danger and moral enormity, and they set in a striking light the fact that every definition of a crime will be found to include in itself widely dissimilar offences. For instance, robbery is theft effected by force or threats of force; burglary is breaking into a dwelling-house between nine at night and six in the morning, with intent to commit a felony—generally speaking, with intent to steal. Each of these definitions includes acts differing widely in atrocity.
Robberies are often offences of little more atrocity than common thefts, for the degree of violence used may be trifling, and no permanent or cruel injury to the person robbed may be either inflicted or intended to be inflicted. Such cases as the following are not uncommon:—Two men drink together at a public-house till they are both a good deal the worse for liquor. On leaving, one of them is hustled about by the other, and his pockets are emptied. In the absence of previous convictions or other circumstances of aggravation, I should think, if the offence was committed by a single criminal, he would be imprisoned for perhaps six or nine months. If there were circumstances of aggravation—if, for instance, several men acted together, and the violence employed was considerable and prolonged, the sentence might go up to eighteen months. If there were both premeditation and conspiracy, or if the violence was employed not merely in order to take the money, but to do injury to the person robbed, the case would be one for penal servitude, longer or shorter according to a variety of circumstances. I remember a case in which a gang of men, acting under a ringleader, were collected by a signal, attacked a man on his way home, threw him down, robbed him, and beat and kicked him with more or less violence till he became insensible. The ringleader was sentenced to fourteen and each of the gang to seven years' penal servitude. I never heard that the sentence was complained of. Cases of burglary vary even more in their character than cases of robbery. As almost anything—the opening of a door or window—amounts to a breaking, a considerable number of burglaries are little more than thefts, not very greatly aggravated; and as such they are usually punished with terms of imprisonment varying say from six, or even three, months to a year or eighteen months. In some cases, however, burglary is an extremely bad offence. If a lonely house is broken into by a gang of armed men, the house ransacked, and the inmates put in bodily fear, I should not consider fifteen years' penal servitude at all exceptionally severe, though in such a case distinctions would have to be made according to the prominence of the part taken by different offenders. If violence was employed, or if by threats of violence the owner was obliged to disclose concealed property, the sentence might go, in the case of those who were most active, to twenty years or to penal servitude for life.
These illustrations might be multiplied indefinitely. I will give a very few more from crimes against the person. None of these is more remarkable than manslaughter or unlawful killing. [I have entered at full length into the definition of this offence in my Digest of the Criminal Law, part v., and see in particular articles 322 and 323. As for the history of the definition, see my History of the Criminal Law, vol. iii. pp. 1-108.] It consists in causing the death of another by any unlawful act or omission not accompanied by any of the states of mind or intentions which are described by the technical name of' malice aforethought,' the presence of which turns manslaughter into murder. This offence is so defined as to comprehend at least three different sets of crimes—namely, first, causing death by violence intended to kill or to inflict deadly injury, but provoked by certain forms of provocation; secondly, causing death by violence not intended nor in itself likely to kill or to cause deadly injury, but intentionally inflicted; thirdly, causing death by culpable negligence. Though not technically complete nor exact, these descriptions of the different forms of manslaughter are sufficient for the present purpose.
In cases of the first and second classes there is a great distinction to be made according to several circumstances—first, the nature of the provocation received (for there may be provocation in the case of ordinary as well as in the case of deadly violence); secondly, the nature of the injury inflicted; thirdly, the circumstances under which it is inflicted. I will mention a few instances. Two men had a quarrel, in itself scandalous and disgraceful, about a woman. They fought with their fists, and after a savage fight one got distinctly the worst of the encounter. He went to his room, and lay for some time on his bed to recover himself a little. After remaining there some time, he went downstairs to the kitchen, picked out a sharp-pointed carving-knife, returned to his antagonist, and, taking his opportunity, drove the knife into his heart. As he had acted whilst under the impression of the humiliation inflicted on him— for which, however, he was himself to blame as much as his antagonist —he was acquitted of murder, though his crime differed from it only by a shade, and he was sentenced to penal servitude for life. And this, I think, is the sentence which in cases of manslaughter closely bordering on murder would usually be passed, though of course circumstances might authorise a higher sentence.
In this case the provocation came as much from the one side as the other; there was an interval during which the offender might have recovered self-control; there was deliberation in the choice of a deadly weapon. Change any one of these circumstances, and the atrocity of the crime might be greatly diminished. If the blow had been given in the actual heat of the fight, when the prisoner found that he was being worsted, and if the knife had been accidentally ready to his hand; or if the man who was killed had been a trespasser, and had attacked the offender without a cause; or if he had got the prisoner down and was beating him when be was defenceless, the whole character of his offence would have been changed. If all the mitigating circumstances suggested concurred, if the man killed were a mere wrongdoer who made use of his superior strength to insult and humiliate his antagonist grossly, if the prisoner had had a knife in his hand when he was so attacked and ill-treated, and had given a stab in return for a blow, the punishment on conviction would probably have been imprisonment instead of penal servitude. The case, however, is one in which every variation in circumstances ought to be represented in the amount of punishment. The provocation given may be so great as to entitle the offender to be regarded as acting in self-defence. It may be so slight as only just to justify the jury in returning a verdict of manslaughter instead of murder.
The second of the three classes into which I have divided manslaughter differs from the first only in the circumstances that less serious violence is employed. Crimes falling within it would be very variously punished, according to the kind of violence and the degree of brutality used.
I will give a few instances to illustrate the different classes of cases which fall within this general description. The worst are those in which death is caused by acts not intended, nor generally speaking likely, to kill, but indicative of gross cruelty and brutality, especially towards the weak or persons under authority. I should say that, if a strong man caused the death of a delicate woman or a child by blows not meant nor likely to kill, but still cruel and brutal, or if the mate of a ship killed a seaman by striking him down with a handspike by way of punishment for some act of disobedience, he might properly be sentenced to seven years' penal servitude.
Suppose, however, that the violence used is comparatively trifling, that a man is killed by a blow given in a common quarrel and under circumstances showing no particular brutality. In such a case the punishment would obviously be imprisonment for a term varying according to all the considerations which would apply in a case of common assault, reference being, however, had to the principle that, in measuring punishment, regard should be had, not only to the intention of the offender, but to the effect of his act. Probably no two cases of this kind are exactly alike.
The third kind of manslaughter is manslaughter by negligence—that is to say, by the omission to discharge some legal duty tending to the preservation of human life. The most serious cases of this sort are those in which children or sick persons are brutally neglected; and I can imagine, though I do not recollect to have met with more than one case in which such conduct would deserve penal servitude. Causing death by gross negligence or ignorance by medical men, or by quacks who assume to act as such, or by gross carelessness—as, for instance, drunkenness on duty—by guards, engine-drivers, or other persons in charge of machinery, are instances of this offence. They would all be punished by imprisonment in ordinary cases; but the circumstances vary so widely that the punishment would vary exceedingly. A man who got drunk, and, by omitting to regulate the ventilation of a mine, caused an explosion which killed many persons, would not be too severely punished by a year's imprisonment. A man who, by leaving unlighted at night a small heap of rubbish in an unfrequented lane under repair, caused a tax-cart to be upset and the driver to be killed, might probably be fined.
There is hardly any crime from which illustrations of this kind might not be drawn. Take, for example, treasonable felony. Gallagher and his associates, who were convicted of dynamite outrages in London, were sentenced to penal servitude for life. Wilson, the accomplice of Davitt, who took a subordinate part in forwarding arms to Ireland for treasonable purposes, was sentenced by the late Lord Chief Justice to seven years, and Davitt himself, whose part in the matter was much more prominent, to fourteen years' penal servitude.
Rape also varies very widely in guilt. Cases in which several persons have helped each other, in which the crime has been accompanied by torture to compel submission, and has been repeated, have often been punished by penal servitude for twenty years. I have known instances of unmentionable atrocity, where the punishment has been for life. The degree to which the woman resists, her character and her conduct, all affect the question of punishment. I have known sentences of penal servitude of all lengths allowed; I do not remember more than one case in which the punishment was imprisonment and hard labour. If the circumstances justify such a sentence, they are generally such as to call for an acquittal, or such as would justify, if the law permitted it (which I wish it did), an acquittal for rape and a conviction for indecent assault. I abstain, however, from multiplying illustrations. Those which I have given are enough to show that, wide as the range of punishment may and must be, there is still a nearer approach to a customary scale of punishment than is often supposed to be the case. I speak, of course, of sentences passed by judges of the Assizes and the Central Criminal Court, to which for many years my experience has been confined.
In conclusion I may observe that some degree of uncertainty as to punishment has its advantages. An habitual thief meditating a particular crime is likely to be made more uncomfortable by the reflection that if he is tried for it by a severe judge he will be sent to penal servitude, than by the reflection that whoever tries him will give him a year's imprisonment. I do not see any advantage in making thieves and rogues and bullies and burglars feel that, whatever they do, they know the worst; that they will not have to suffer more than a certain well-defined amount of punishment.
Several things might easily be done, which, though not reforms of the first magnitude, would be distinct improvements in the infliction of punishments. The prison authorities ought to be well aware of the physical effects of imprisonment for a certain number of months. The punishment is certainly more severe than it used to be. So far back as 1865 solitary confinement, which used to be an occasional aggravation, and which still keeps its place as such on the statute book, became, under the name of separate confinement, the rule. As the law now stands, it is understood that two years' imprisonment is a punishment so severe that it ought to be inflicted only under very exceptional circumstances; but it would be important to know whether, for instance, a year's imprisonment affects the health of ordinary men either severely or permanently.
I think it should be a fixed rule that a sentence of imprisonment should date back to the day when the prisoner was received into custody, instead of dating, as at present, from the first day of the sittings at which it is passed, or from the day when it is passed. As matters now stand, a prisoner generally, though not always, gets in his sentence credit for part of the time at least of his imprisonment when under committal. I think the law should give it him; though to a certain extent imprisonment under committal for trial is less severe than imprisonment under sentence, the anxiety which the prisoner has to undergo must make it at least equally unpleasant.
There is one kind of punishment known to the present law which I think ought to be altogether abolished, as it is inflicted by mere operation of the law, no discretion being reposed either in the judge or, I believe, in any other authorities, and as it operates with cruel and, what is worse, with retrospective severity! It punishes a man literally for having in his earlier life deserved well of the public. I refer to the relics of the laws of forfeiture, which were unhappily preserved when forfeiture for felony was abolished in 1870 by 33 & 34 Vict. c. 23, § l, and the following provision was enacted in the place of the old law. I transcribe it, and the remarks made upon it in my History of the Criminal Law [Vol. i. pp. 488-89]:—
'It is provided by section 2, that upon a conviction for felony and a sentence of twelve months' imprisonment or upwards, or imprisonment with hard labour for any term, the convict shall forfeit "any military or naval office or any civil office under the Crown or other public employment, or any ecclesiastical benefice, or any place, office, or emolument in any university, college, or other corporation which he may hold, and also any pension or superannuation allowance or emolument" to which he is entitled. I think that the question whether a person should on account of a conviction of felony, followed by a sentence of imprisonment and hard labour, be deprived of official employment or ecclesiastical preferment, should be left to his official or ecclesiastical superiors. I do not see why an officer in the army who, in a moment of irritation, strikes a blow which kills a man and is convicted of manslaughter, should lose his commission because the judge sentences him to imprisonment with hard labour; nor do I think that in considering the sentence the judge ought to be obliged to take into account the fact that a sentence of hard labour will necessarily cost the offender his commission. This matter seems to me to be one for the military authorities, just as the question whether a barrister should be disbarred upon a conviction is a question for the Benchers of his Inn.
'To deprive a man of a pension or superannuation allowance, which is in reality deferred pay earned by work done, is to keep up the principle of forfeiture of property as a punishment for crime in a special class of cases when it has been given up in all others. Two officers of a bank are convicted of a forgery for which each is sentenced to a year's hard labour. One is a retired Indian civilian with a pension of £1,000 a year; the other has bought a life annuity of the same amount out of his savings in a profession. Why is the one to lose his pension and the other to keep his annuity? The pension is just as much property as the annuity. It is part of the consideration for which many years of labour were given. Apart from this, why, when removing an admitted grievance, keep up a perfectly irrational distinction between the punishment of felons and the punishment of misdemeanants? Suppose that two other persons—directors of the same bank—had fraudulently misappropriated its funds in concert with the two forgers, but by means amounting only to misdemeanour. If they held pensions or commissions they would forfeit nothing, even if they were sentenced to penal servitude. Surely this is highly unjust. It seems to me that the whole Act, except the section which abolishes forfeiture, should be repealed. If its provisions are not wanted in cases of misdemeanours, they are not wanted at all. They are practically a dead letter in cases of felony.'I have confined my observations to sentences passed by judges of the High Court, because they are the only ones on which my own experience qualifies me to speak.
The Nineteenth Century, May 1885.