Section 6

at court a matter of chance; that in the same day, and for a like crime, one man will be sentenced to transportation for life, while another may be let off for a month's imprisonment, and yet both equally bad characters.

It only needs that punishment should be sure to follow the conviction for crime, and that the judgments should be uniform and settled, to strike terror into the whole body of London criminals. Out of the 2,550 annually tried, nearly one-fourth are acquitted, leaving little short of 2,000 for sentence in each year. Of these the average transported are 800; deduct 200 for cases of an incidental nature, i.e. crimes not committed by regular offenders, and there remain 1,000 professed thieves who are again turned loose in a short period on the town, all of whom appear in due course again at the court of the Old Bailey, or at some other, many times in the revolution of one year. Here lies the mischief. An old thief will be sure to enlist others to perpetuate the race. There is no disguising the fact: the whole blame is with the court whose duty it is to take cognizance of these characters. Whilst the present system is pursued, of allowing so many old offenders to escape with trifling punishments, the evils will be increased, and the business of the court go on augmenting, by its own errors. The thief is now encouraged to speculate on his chances--in his own phraseology, 「his good luck.「 Every escape makes him more reckless. I knew one man who was allowed a course of seventeen imprisonments and other punishments before his career was stopped by transportation; a sentence which does, however, sooner or later overtake them, and which would be better both for themselves and the country were it passed the first time they were in the hands of the court as known thieves. Observing only a certain, and nearly an equal, number transported each session, they have imbibed a notion, that the recorder cannot exceed it, and that he selects those to whom he takes a dislike at the bar, not for the magnitude of their offence, but from caprice or chance. It is under this impression they are afraid of speaking when in court, lest they should give offence, and excite petulance in the judge, which would, in their opinion, inevitably include them in the devoted batch of transports, of which their horror is inconceivable; 1st, because many have already undergone the punishment; and 2dly, all who have not are fully aware of the privations to which it subjects them. Their anxious inquiry regarding every particular relating to the treatment, is a strong manifestation of their uneasiness on this subject. Yet Mr. Wontner and Mr. Wakefield (says the Quarterly reviewer) think neither transportation nor the hulks have any terrors for them. How they come to this opinion, I cannot imagine. If they draw their inference from the noise and apparent mirth of the prisoners when they leave Newgate for the hulks, I think their premises false.

The transports are taken from Newgate in parties of twenty-five, which is called a draft. When the turnkeys lock up the wards of the prison at the close of the day, they call over the names of the convicts under orders for removal, at the same time informing them at what hour of the night or morning they will be called for, and to what place and ship they are destined. This notice, which frequently is not more than three or four hours, is all that is given them; a regulation rendered necessary to obviate the bustle and confusion heretofore experienced, by their friends and relatives thronging the gates of the prison, accompanied by valedictory exclamations at the departure of the van in which they are conveyed. Before this order arrives, most of them have endured many months' confinement, and having exhausted the liberality, or funds--perhaps both--of their friends, have been constrained to subsist on the goal allowance. This, together with the sameness of a prison life, brings on a weariness of mind, which renders any change agreeable to their now broken spirits; the prospect of a removal occasions a temporary excitement, which, to those unaccustomed to reason on the matter, may appear like gaiety, and carelessness of the future. The noise and apparent recklessness, however, on these occasions, are produced more by those prisoners who are to remain behind, availing themselves of the opportunity to beguile a few hours of tedious existence by a noisy and forced merriment, which they know the officers on duty will impute to the men under orders for the ship. This is confirmed by the inmates of the place being, on all other nights of the year, peaceable after they have been locked up in their respective wards. Those who suppose there is any real mirth or indifference among them at any time, have taken but a superficial view of these wretched men. Heaviness and sickness of heart are always with them; they will at times make an effort to feel at ease, but all their hilarity is fictitious and assumed--they have the common feelings of our nature, and of which they can never divest themselves. Those who possess an unusual buoyancy of spirits, and gloss over their feelings with their companions, I have ever observed on the whole, to feel the most internal agony. I have seen upwards of two thousand under this sentence, and never conversed with one who did not appear to consider the punishment, if it exceeded seven years, equal to death. May, the accomplice of Bishop and Williams, told me, the day after his respite, if they meant to transport him, he did not thank them for his life. The following is another striking instance of the view they have of this punishment. A man named Shaw, who suffered for housebreaking about two years since, awoke during the night previous to his execution, and said, 「Lee!「 (speaking to the man in the cell with him) 「I have often said I would be rather hanged than transported; but now it comes so close as this, I begin to think otherwise.「 Shortly afterwards he turned round to the same man and said, 「I was wrong in what I said just now; I am still of my former opinion: hanging is the best of the two;「 and he remained in the same mind all the night. The first question an untried prisoner asks of those to whom he is about to entrust his defence is, 「Do you think I shall be transported? Save me from that, and I don't mind any thing else.「 One thing, however, is clear: no punishment hitherto has lessened the number of offenders; nor will any ever be efficient, until the penalties awarded by the law unerringly follow conviction, especially with the common robbers.

Turn over the pages of the Old Bailey session papers for years past, and you cannot but be struck with the anomalies which are there apparent, with respect to crimes and the sentences which have followed. The impression a perusal of these papers made on my mind, was as if all the business had been done by lottery; and my observation during twenty-two sessions on the occurring cases has tended to convince me, that a distribution of justice from that wheel of chance could not present a more incongruous and confused record of convictions and punishments. In no case (always excepting the capitals) can any person, however acute and experienced, form the slightest opinion of what the judgment of the court will be. Of this the London thieves are fully aware. I never could succeed in persuading one before his trial, that he was deprived of all chance of escape. They will answer, 「Look what a court it is! how many worse than me do scramble through; and who knows but I may be lucky.「 What men know they must endure, they fear; what they think they can escape, they despise: their calculation of three-fourths escaping is very near the truth. Hope, the spring of action, induces each to say to himself, 「Why may I not be the lucky one?「 THE CHANCE THUS GIVEN OF ACQUITTAL IS THE MAIN CAUSE OF CRIME. I do not mean to say three-fourths come off free; they are subjected to some kind of punishment (excepting a few cases of judgment respited); the others feel, no doubt, what they undergo, but it is only as a soldier in the fight considers a scratch--otherwise coming off with a whole skin, being ready for action again. Another evil arises out of this irregularity of judgments. All punishments are rendered severe and useful in proportion as the offender feels he deserves it, and is conscious of having only his quantum meritus.. This the convict can now never feel, seeing his companion in crime let off for a few months' imprisonment, he (his companion) having been guilty of an offence equal to his own, and for which he (the convict) is transported for life. Those connected with the court, in the conversations I have had with them, say, 「circumstances of character occasion the apparent anomalies;「 being unable, or perhaps unwilling, to give a better. That a good character does not avail the prisoner, or direct the court in its judgments, may be seen by a mere inspection of the printed trials, and is better known to all who have watched the proceedings of this court for any time. Hundreds of cases might be cited to illustrate this fact. I remember the case of two butchers, whose briefs I wrote, which occurred last year. One was an old, the other a young man, both having been in the employ of the prosecutor. They w