Читать книгу Early Australian History. Convict Life in New South Wales and Van Diemen's Land - Charles White - Страница 22

Table of Contents

DRACONIAN LAW—A COIN MORE VALUABLE THAN A PARENT—BROAD DISTINCTIONS—ONE HUNDRED AND SIXTY CAPITAL OFFENCES—"BENEFIT OF CLERGY"—HIGH TREASON—PETTY TREASON—THE DIFFERENT KINDS OF FELONIES—ONE-SIDED CHIVALRY—DISINCLINATION TO PROSECUTE—ESCAPE OF OFFENDERS—PERNICIOUS EFFECT OF UNDUE SEVERITY—DEATH SENTENCES COMMUTTED TO TRANSPORTATION—ESCAPING THE HANGMAN IN THE OLD WORLD TO MEET HIM IN THE NEW.

It was Draco who boasted that he punished all crimes with death, because small crimes deserved it, and he could find no higher punishment for the greatest; and the spirit of that bloodthirsty ruler appears to have breathed in the Criminal Code of England more than 2000 years after he had passed beyond the power of punishing others. The severity of that criminal law, as it stood and operated as late as the year 1800—to come no nearer the present enlightened age—was even then an object of horror, and the disproportion of the punishments was such as would have put any savage nation to the blush. The extraordinary severity with which the smaller offences were punished had the effect of inuring men to baseness, and of plunging them into the sink of infamy and despair, out of which they invariably arose capital criminals. What wonder that the gaols should overflow and that the hangmen should be kept incessantly at work!

It was considered by the Law a greater crime to coin a sixpence than to kill father or mother. For committing a personal assault of the most cruel, aggravated, and violent nature the offender was simply fined or imprisoned; but if he were proved guilty of stealing from his neighbour more than the value of twelve-pence the Law doomed him to death. It was death to rob a man of more than a shilling; it was only death to murder a whole family; but the seduction of a married woman, involving the destruction of the peace and happiness of families, was not an offence punishable by the criminal law at all. Is it not a fact that there is still a little of the old leaven left?

The Legislature drew a broad line of distinction between personal and public offences, and inflicted greater punishments upon offenders who committed what were termed political crimes, and crimes upon property, than on those who grossly violated the clearest principles of virtue. By the Laws of England there were above one hundred and sixty different offences which subjected the parties who were found guilty thereof to "death, without benefit of Clergy." Well might Dr. Colquhoun ask, when seeking to effect a reform in the Law in 1800:—"Can that be thought a correct System of Jurisprudence which inflicts the penalty of Death for breaking down the mound of a fish-pond, whereby the fish may escape; or cutting down a fruit tree in a garden or orchard; or stealing a handkerchief, or any trifle, privately from a person's pocket, above the value of 12d.; while a number of other crimes of much greater enormity, are only punishable with Transportation and Imprisonment; and while the punishment of murder itself is, and can be, only Death, with a few circumstances of additional ignominy?"

As the term 'Benefit of Clergy' will be found attached to many sentences, an explanation thereof will be proper here:—Benefit of Clergy, privilegium clericale arose in the regard paid by Christian Princes to the church, and consisted of: 1st, an exemption of places consecrated to religious duties from criminal arrests, which was the foundation of 'sanctuaries;' 2nd, exemption of the persons of Clergymen from criminal process before the secular judge, in particular cases, which was the original meaning of the privilegium clericale. The 'benefit of clergy' was afterwards extended to everyone who could read; and it was enacted that there should be a prerogative allowed to the clergy, that if any man who could read were to be condemned to death, the bishop of the diocese might, if he would, claim him as a clerk, and dispose of him in some places of the clergy, as he might deem meet. The ordinary gave the prisoner at the bar a Latin book, in a black Gothic character, from which to read a verse or two; and if the ordinary said "legit ut clericus" ("He reads like a clerk"), the offender was only burnt in the hand; otherwise, he suffered death. This was in the time of Edward I (1274). In 1849 the privilege was restricted by Henry VII; and abolished, with respect to murderers and other great criminals, by Henry VIII, in 1512. The reading was discontinued in 1706 (5 Anne, c. 6); and Benefit of Clergy was wholly repealed in 1827, by 7 and 8 George IV, c. 28.

The highest civil crime which could be committed by any person was High Treason, which was divided into seven different heads, namely:—

1. Compassing or imagining the death of the King, Queen, or Heir Apparent. 2. Levying war against the King in his realm. 3. Adhering to the King's enemies, and giving them aid, in the realm or elsewhere. 4. Slaying the King's Chancellor or Judge in the execution of their offices. 5. Violating the Queen, the eldest daughter of the King, or the wife of the Heir Apparent, or eldest Son. 6. Counterfeiting the King's Great Seal, or Privy Seal. 7. Counterfeiting the King's Money, or bringing false Money into the Kingdom.

There is something supremely ridiculous in this blending of crimes, the dignity and security of the King's person being confounded with his effigies imprest on his coin. It was as great a crime to forge the impress on the one as to strike the head from the other. The punishment for High Treason was death—and death under circumstances most horrifying in their brutality, the judgment being:—"That the offender be drawn to the gallows, on the ground or pavement: That he be hanged by the neck, and then cut down alive: That his entrails be taken out and burned while he is yet alive: That his head be cut off: That his body be divided into four parts: And that his head and quarters be at the King's disposal." Women, however, were only to be drawn and hanged, although previous to this period they were sentenced to be burned. One marvels that judges could be found to pass such a sentence as this, and that any community, however much borne down by militaryism, could suffer it to be carried out. Surely there were some who shuddered at the thought of imbruing their hands in blood, and mangling the smoking entrails of their fellow-creatures! In its severity the law of China was not more rigorous, for traitors under it were only ordained to be cut into a thousand pieces.

Petty Treason—defined as the offence of 'a servant killing his master, a wife killing her husband, or a Secular or Religious killing his Prelate'—was also punishable with death.

The offences denominated Felonies ranked next in enormity to Treason, and the capital punishment attached to nearly all of them. Felonies were of two kinds—public and private. Public felonies were those which had peculiar relation to the State—those relative (1). to the coin of the realm; (2). to the King and his Counsellors; (3). to soldiers and marines; (4). to embezzling public property; (5). to riot and sedition; (6). to escape from prison; and (7). to revenue and trade. Amongst private felonies the following offences were classed:—murder, manslaughter, sodomy, rape, forcible marriage, polygamy, maiming, simply larceny, 'mixed larceny,' piracy, arson, and burglary. After the murderer had suffered death his body was handed over for dissection, and (as also in the case of the suicide) his property was confiscated to the State. The punishment for manslaughter was burning in the offender's hand and having his goods forfeited. Unnatural crime and rape were punishable with death, as also was the offence called 'Forcible Marriage, or Defilement of Women;' but in the latter case the security of property was deemed to be more important than the preservation of chastity—thus: It was made felony without the benefit of clergy to take away, for lucre, any woman having lands or goods, or being an heir apparent to an estate, by force or against her will, and to marry or to defile her; but the forcible marriage or defilement of a woman without an estate was not made punishable at all. Like some of the Knights of old, the Law was very chivalrous towards ladies who possessed the high virtue of wealth! Thank God, the chivalry of our day is more far-reaching than was that of the eighteenth century.

Polygamy was first declared felony by the statute of James the First, Cap. II., but not excluded from benefit of clergy, and offenders were not, therefore, subject to the death penalty. Transportation was the punishment, but no record has been found to shew that any of the convicts who came to New South Wales had a plurality of wives before they left the 'old country'—although not a few of them committed bigamy after their arrival here, the 'first love' being separated by a wide expanse of ocean from the second.

Mayhem was defined to be 'maiming, cutting the tongue, or putting out the eyes of any of the King's liege people, slitting the nose, cutting off a nose or lip, or cutting off or disabling any limb or member, by malice forethought and by lying in wait with an intention to maim or disfigure.' The offence was punishable with death.

Simple Larceny was divided into two parts, viz.—Grand Larceny and Petit Larceny. The first was defined to be 'the felonious taking and carry away the mere personal property or goods of another, above the value of twelve-pence,' and was punished with death and the forfeiture of property. Petit larceny was where the goods were under the value of twelve-pence, and in this case the punishment was (according to the character of the offence) imprisonment, whipping, or transportation, with forfeiture of goods and chattels.

The taking from a man or from his house was called Mixed Larceny; if a person was previously put in fear or assaulted the crime was denominated Robbery. The following 'domestic aggravations' of Larceny were punishable with death, without benefit of clergy:—First, larcenies above the value of twelve-pence, committed—1st, in a church or chapel, with or without violence or breaking the same; 2nd, in a booth or tent, a market or fair, in the daytime or in the night, by violence or breaking the same, the owner or some of his family being therein; 3rd, by robbing a dwelling in the daytime, any person being therein; in a dwelling-house by day or by night, without breaking, any person being therein, and put in fear. (This amounted to robbery, and in both the last cases the accessory before the fact was also excluded from benefit of clergy.) Secondly, larcenies to the value of five shillings, committed:—1st, by breaking any dwelling house, outhouse, shop, or warehouse thereunto belonging in the daytime; 2nd, by privately stealing goods, wares, or merchandise in any shop, warehouse, coach-house, or stable, by day or night, though the same was not broken open, and though no person was therein. Thirdly, larcenies to the value of forty shillings, from a dwelling house or its outhouses, although the same be not broken, and whether any person be therein or not, unless committed upon their masters by apprentices under the age of fifteen years.

Arson was a capital offence, although if a man burned his own house, without injuring any other, it was only counted a misdemeanour, and was punished by fine, imprisonment, or the pillory. The capital part of the offence was extended to persons burning barns or stacks of corn or setting fire to stacks of straw, hay or wood, or rescuing any such offender; setting fire to a coal mine, windmill, watermill or other mill, or pulling down the same; burning any ship; burning the King's ships of war, afloat or building, the Dock-yards, or any of the buildings, arsenals, or stores therein: or threatening by anonymous or fictitious letters to burn houses, barns, &c. All these offences were made felony without benefit of clergy. Burglary was also punishable by death, and accessories before the fact were also brought under the capital sentence.

The other principal crimes punishable by the deprivation of life, or where, upon the conviction of the offender, the judge had to pronounce sentence of death, were:—

Stealing an heiress; Forgery of deeds, bonds, &c.

Bankrupts not surrendering, or concealing their effects.

Highway robbery; Stealing bank notes, bonds, &c.

Stealing linen from bleaching grounds, or destroying the same.

Maiming or killing cattle maliciously.

Stealing horses, cattle, or sheep.

Shooting at a revenue officer, or at any other person.

Breaking down the head of a fish-pond, whereby fish may be lost.

Cutting down trees in an avenue, garden, &c.

Cutting down river or sea banks, or hop binds.

Taking reward for helping another to stolen goods.

Returning from Transportation, or being at large in the

Kingdom after sentence.

Stabbing a person unarmed, or not having a weapon

drawn, if he die within 6 months.

Concealing the birth of a bastard child.

Sending threatening letters.

Riots by twelve or more, and not dispersing in an hour

after proclamation.

Stealing woollen cloth from Tenter ground.

Stealing from a ship in distress.

Challenging jurors above 20 in capital felonies, or

standing mute.

Selling cottons with forged stamps.

Deer-stealing, second offence.

Uttering counterfeit money.

Prisoners under Insolvent Act guilty of perjury.

Destroying silk or velvet in the loom; or the tools for

manufacturing same; or destroying woollen goods,

racks, or tools, or entering a house for that purpose.

Servants purloining their master's goods, value 40/-.

Personating bail, or acknowledging fines or judgments

in another's name.

Escape by breaking prison; Sacrilege.

Attempts to kill Privy Counsellors, &c.

Smuggling by persons armed, or assembling armed for

that purpose.

Robbery of mail.

Destroying turnpikes or bridges, gates, weighing engines,

locks, sluices, engines for draining marshes, &c.

Mutiny; Desertion;

Soldiers or sailors enlisting into Foreign Service.

The following crimes, denominated 'Single Felonies.' were punishable by Transportation, Whipping, Imprisonment, the Pillory, and hard labour in Houses of Correction, according to the nature of the offence:—

Grand Larceny, which comprehended every species of

theft above the value of one shilling not otherwise

distinguished.

Receiving or buying stolen goods, jewels, and plate.

Ripping or stealing lead, iron, copper, &c., or buying or

receiving same.

Stealing or receiving ore from black lead mines.

Stealing from furnished lodgings.

Setting fire to underwood.

Stealing letters, or destroying a letter or packet,

advancing the postage, and secreting the money.

Embezzling naval stores.

Petty larcenies, or thefts under one shilling.

Assaulting with intent to rob.

Aliens returning, after being ordered out of the Kingdom.

Stealing fish from a pond or river, fishing in enclosed

ponds, or buying stolen fish.

Stealing roots, trees, or plants, of the value of 5/- or

destroying them.

Stealing children, with their apparel.

Bigamy, or marrying more wives or husbands than one.

Assaulting or cutting, or burning clothes.

Counterfeiting the copper coin.

Solemnizing marriage clandestinely.

Manslaughter; Cutting or stealing timber trees.

Stealing a shroud out of a grave.

Watermen carrying too many passengers in the Thames,

if any drowned.

Perjury; Frauds, by cheating or swindling.

Conspiring to injure others.

Stealing dead bodies.

Stealing growing cabbages, turnips, &c..

Cutting and stealing wood.

Robbing orchards and gardens.

Stealing deer from forests.

Stealing dogs.

Making and selling fireworks and squibs.

Throwing the same when on fire about the streets.

Uttering base money.

Embezzlements in the woollen, silk or other manufactures.

Combinations and conspiracies for raising the price of

wages.

Keeping bawdy and disorderly houses.

Escaping out of House of Correction.

Committing the same offence, after being once punished

as rogues and vagabonds.

The attachment of such heavy punishment to offences of the most trivial kind created a wide-spread feeling against prosecuting offenders in the minds of the pubic; and the consequence was that a large amount of petty crime was allowed to go unpunished. And even when sentence was passed it was in many cases not carried out. A few sentences from Dr. Colquhoun's 'Treaties on the Police of the Metropolis,'—1780, will shew the reader how this happened. He says:—

"It generally happens in the metropolis that out of from 2,000 to 2,500 prisoners who are tried for different crimes in the various Courts of Justice, above five-sixth parts are for larcenies, acts of vagrancy and smaller offences, where the Benefit of Clergy either attaches, or does not apply at all. The major part are, of course, returned upon Society, after a short imprisonment, or some corporal punishment, so frequently to renew their depredations on the public. But a vast proportion are always acquitted. (He shews by statistics that out of 1894 prisoners tried at the Old Bailey and the different assizes in the country, in the years 1795, exclusive of a greater number at the smaller Courts, no less than 845 were acquitted, chiefly for want of prosecutors).

"According to the present system, out of about two hundred and upwards who are, upon an average every year, doomed to suffer the punishment of death, four-fifths, or more are generally pardoned, either on condition of being transported or of going into his Majesty's service, and not seldom without any condition at all. Hence it is that, calculating on all the different chances, encouragement to commit crimes actually arise out of the system intended for their prevention—first, from the hope of avoiding detection and apprehension; secondly, of escaping conviction, from the means used to vitiate and suborn the evidence; thirdly, from the mercy of the jury, in considering the punishment too severe; and fourthly, from the interest of persons of rank or consideration applying for the interference of Royal mercy, by pardons.

"Thus we see that the laws of England at the time Transportation to Australia was instituted had a most pernicious effect. On the one hand cruelty in punishment for slight offences often induced, or drove, the offenders to pass on from the trifling to the more atrocious crimes on the principle that they might just as well be hanged for a sheep as for a lamb; on the other hand, it tended to multiply offences, men generally having a disinclination to prosecute, and the viciously-inclined taking advantage thereof in order to indulge their inclinations.

"This was the condition of affairs when the ships under Governor Phillip left their anchorage to bear across the seas the seeds of the 'Greater Britain in the Southern World'—and for many years thereafter. Yet there be people who sigh for the 'good old times!' The good Lord deliver us from ever falling back upon such times as those!

"The punishment, then, considered in point of law next to that of deprivation of life was Transportation, and when this new field across the seas was opened up sentences of transportation in many cases were substituted for sentences of death, and many a poor wretch owed his life to the occupancy of the 'new land' by the British; although, as will be seen during the progress of this story, not a few of them escaped the gallows in the old country to find it in the new, or to enter upon a course of suffering a thousand times worse than death."