Another reprehensible part of our system is, that in the more serious offences, the criminal rarely suffers the punishment to which he is publicly sentenced. If he is sentenced to death, that generally means that he is not to suffer death, but to be transported for life; if he is sentenced to transportation for seven years, that means that he is not to be transported for seven years, but to be imprisoned about half that time in hulks or the Penitentiary. Unless a felon is hanged, the sentence which he will really suffer is a matter of entire uncertainty even if he is transported for life, he may receive a full pardon at the end of eight years. In the midst of all this uncertainty, the only thing that seems absolutely certain is, that he will not suffer the punishment which the law declares that he is to suffer, viz. death. There is, moreover, a further evil in transportation, peculiar to itself, and not shared by the other two secondary punishments. It is not certain that a convict will be imprisoned in the Penitentiary, but if he is imprisoned in the Penitentiary, there is only one punishment for all the prisoners, The same is true of the hulks; the mode of punishment is the same for all. But with transportation, not only is it not certain that a convict will be transported, but when he is transported, there is an immense variety of lots which may befal him. He may live either in the town or in the country, may serve the government or a settler, have a good or a bad master; remain poor or grow rich, be well or ill treated; be a tutor or a shepherd; a government clerk or a tavern-waiter: whence it arises, that every one selects the condition which is most agreeable to himself, and expects to meet with that particular destination: any case of hardship which may come to his ears, he sets down as a lamentable accident for the unhappy sufferer, who is much to be pitied for his misfortune; but he never thinks of applying it to his own case. The banker's clerk, or the London thief, expects to be a tutor, or to be employed in a public office the mechanic expects to cheat the government and work for his own profit: the agricultural labourer to have little fatigue, and be well fed, clothed and lodged. And the truth is, that they are generally right in their respective calculations, as the government is forced to employ them in the way which best suits their former habits; in other words, in the way most agreeable : to themselves. Transportation may, indeed, be said to unite in itself all the attributes of a bad punishment; to furnish a model for a penal system which should be imitated by contraries. Even if it were rendered certain by making it the only secondary punishment, this change would rather aggravate the evil. For its chief defect is its extreme mildness, and want of terrors: and the happy facility with which it adapts its various pleasures to the case of each individual. Hence, by persons under sentence in England, it is coveted rather than dreaded, and is an object of ambition rather than aversion. While of the convicts, some are tormented with the fear of death; some depressed with the disgrace of a conviction in their native country; some with the dread of the hulks, others of the Penitentiary: and while most are intent on the prospect of wealth and importance in a new home, the tickets of the lottery are drawn, and happy they who get the prize of transportation. Alii panduntur inanes Suspensi ad ventos; aliis sub gurgite vasto Quisque suos patimur manes: exinde per amplum There is only one remedy for our system of secondary punishments, viz. to destroy every part and parcel of it, and to substitute an entirely new system in its place. The building is too crazy and rotten to be propped up by temporary supports, or to be patched by partial repairs. It has grown out of a succession of expedients and palliatives, but the time for shifts and provisional arrangements is now past, and the evil has at length become so great that it ought no longer to be endured. So far as it goes, the Penitentiary is founded on a right principle; but the numbers of the prisoners are so few, the separation so imperfect, and the expence so considerable that even this institution calls for a radical reform. Confinement with hard labour in the hulks is a punishment which to a working man has few terrors: he enjoys the society of his companions, and is not debarred from many of the luxuries to which he has been accustomed. The hulks are considered in the light of a sacrifice of so much time; a prisoner gives up three years of pleasure, but he does not pass three years of pain. Far worse, however, than even the hulks, is the sys tem of transportation: the pain inflicted by this punishment is insufficient in amount, irregular in its operation, often unknown on account of the distance at which it is endured, and if known, so uncertain as not to be reckoned on its disgrace is not felt, because the sufferers are out of the sight of those whom they respect; it injures the mother country by substituting the semblance for the reality of punishment: it injures the colony by forming a society of the most worthless and abandoned wretches drafted from the prisons of a large community; by annually pouring in fresh supplies of this moral poison, by concentrating, multiplying, and perpetuating the scattered and transitory forms of vice, it has made this new and wealthy settlement a storehouse of depravity, one vast heap of moral corruption: it is a system from which nothing is to be hoped, and everything to be feared; a system of elaborate mischief and consistent impolicy, originating in helplessness, continued in ignorance, and tolerated only by supine and culpable indifference. We have learnt, both with surprise and concern, that all proposals to discontinue the annual shipments of convicts to the Australian provinces, meet with great opposition from the free inhabitants of those colonies, who consider that they have a vested right to be provided with bond-slaves at the public expense, and that the system which might have been less objectionable in the early state of the colony, is to be maintained for their benefit, however injurious it may prove to the lasting interests both of the mother country and the colony itself. Sincerely do we hope that ample ground may be given to these colonists to be loud in their complaints, by a cessation of the supplies of convicts; and that a trial may be given in this country to the American system of home imprisonment for short periods of time, of which an account may be found in the Travels of Captain Basil Hall. This system combines all the advantages which transportation has not; it begins immediately after sentence; it is painful in the extreme, by enforcing strict silence and hard work by day, and solitude by night; it is constant and uniform; in cheapness it far exceeds every other punishment except death;1 and it affords the best chance of reformation which Captain Hall states that the manager of the Sing Sing prison mentioned that in a short time he should be in a condition to offer to take upon himself the whole any mode of reclaiming depraved persons can afford, inasmuch as it connects labour and instruction with their most agreeable associations, as silence is never broken except by the voice of the teacher; and where conversation and amusement are forbidden, labour itself is a relief.1 It is, however, necessary to remark that the most perfect mode of punishment which can be devised will be ineffectual if an alternative is offered to the minds of the intended criminals, by suffering other imperfect modes of punishment to co-exist with it. If, therefore, the Penitentiary could receive all the convicts now imprisoned in the hulks, and its regulations were formed on the American model, its effect would still be inconsiderable, as all persons would calculate on transportation. The substitution of one colony for another, of Trinidad for New South Wales, even of an unhealthy for an healthy climate, would be sufficient to nullify the effect of any improvements at home. We are firmly assured that the opinion expressed by Mr. Wakefield, as to the possibility of affecting a great and immediate diminution of crime by a certain, speedy, uniform, and painful punishment, is neither sanguine nor ill-founded; and if the present, or any other government, should have the courage and perseverance to undertake the entire re-construction of our system of secon 2 expense of the establishment, provided that he received the produce of the prisoners' labour. Under these circumstances, the only expense to the public would be the interest of the prime cost of the building. 1 Mr. Wakefield states that "when Captain Hall's account of the American prisons was published, he read it to many of the convicts at different times, and the effect it produced upon their imaginations was very striking: it made them shudder, and any such punishment as that they would dread beyond measure."-Ev. 1462. The Penitentiary at Geneva has recently attracted much of the attention of foreign writers, but we are not sufficiently acquainted with its plan and arrangements to pronounce an opinion. 2 We are sorry to find in some of the questions proposed by the committee (see e. g. 1487), a trace of an opinion more worthy of the cruel spirit of an unenlightened age, than of the wisdom which ought to characterize a modern reformer of our law, viz. that convicts are to be punished by sending them to perish in an unhealthy climate. A measure of the Roman empire, by which several thousand Jews were transported to the island of Sardinia, without regard to the unhealthiness of the climate, has been properly considered as worthy of the despotism from which it emanated. "Actum et (says Tacitus) de sacris Ægyptiis Judaicisque pellendis factumque patrum consultum ut quattuor millia libertini generis ea superstitione infecta, queis idonea ætas, in insulam Sardiniam veherentur, coercendis illic latrociniis, et si ob gravitatem cœli interissent, vile damnum.”—Ann. 1. 2. c. 85. - 3 Ev. 1485-6, 1592-3. dary punishments, they would effect an improvement in our penal law in comparison with which the reforms introduced by Sir Robert Peel would shrink into nothing; and they would confer on the community a greater benefit than perhaps any other legislative measure, except an amendment of the poor laws, is capable of effecting. There are many parts of our penal system, which in the narrow compass of an article we have not been able even to notice, and many others to which we have only alluded; if, however, the committee on secondary punishments should be re-appointed in this session, and collect additional evidence, especially on the subject of Van Dieman's Land, to which their researches have not extended, and if there should appear on the part of the government any symptom of an acknowledgment of the evils of our present system, and of a wish to amend it, we may perhaps find an opportunity of recurring, on a future occasion, to this most important and much misunderstood subject. L. ART. II.-UNANIMITY OF JURIES. THE Third Report of the Common Law Commissioners (of which a copious abstract was given in our last Number) touches cursorily upon a subject of the greatest importance to the right administration of justice—we mean the unanimity which our law requires in the decisions of juries. Indeed, the subject is so important, that the Commissioners. would have been well justified in assigning to it a much more conspicuous place among those to which their attention has been directed. To us it is a matter of no small astonishment, that so many centuries should have gone by since the establishment of the present jury system, and that during all that time so very little should have been said or written upon a rule, which 1 Third Report, pp. 69 and 89. 2 2 See, however, Emly's Preface to his Edition of the State Trials, reprinted in Howell, vol. i. p. 29.; the Observations of Mr. Baron Maseres, and Mr. Daines |