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all cases practicable, the community at large will derive, from the very efforts that may be made for this purpose, the inestimable benefit of being freed from the depredations of the innumerable hordes, who are at present its annoyance and its dread, and the sacred delight arising from the performance of the first of christian duties.
ON PUNISHMENTS OF INFERIOR DEGREE.
But, if the laws of this country neither profess to have in view, nor are calculated to produce, the moral improvement and restoration of the guilty, they have provided various modes of punishment, between the infliction of death and total įmpunity, by which the offender is made to feel, severely and permanently, the consequences of his crime. What use he may maķe of the discipline he thus receives, must rest with himself. In the conviction of the criminal, and the application of the punishment, the law has performed its office. Let us now inquire what is the nature of these punishments, and what is their usual result.
The inferior punishments usually inflicted on eriminals in this country, are transportation,
orporal or disgraceful punishments, and imprisonment.
Banishment, says Cicero, is not a punishment, but a refuge and a shelter from punishment. *
The lenity of the Roman law per
“ Exilium non supplicium est, sed perfugium portusque supplicii.”-Cic. pro Cæcin.
mitted the person accused, in every case before judgment, to withdraw himself from the consequences of conviction into voluntary exile. A practice nearly similar, under the name of abjuration of the realm, subsisted in England till the time of James I., of which Mr. Eden has given some curious particulars;* but banishment, as known to the ancients, and still practised by some modern states, forms no part of the law of England. Instead of this, we adopt the practice of transportation, and send the individual to some particular place, where he is to pass the period of his condemnation,
There' was a time when it was supposed to be of great importance to the prosperity of this country that we should colonize foreign parts, and in particular that we should people the Coasts of America; and, though the result of this experiment has been very different from what was expected, yet the habit being once formed, we still continue to colonize, although at tenfold expense, and without being able to
* “ This was permitted,” says Sir E. Coke, « when the felon chose rather, perdere patriam quam vitam." The oath of perpetual banishment was then administered to him by the coroner, in the church or church-yard to which he had fled; and a cross was delivered into his hand for his protection on his journey."~0. Eden's Prin. of Penal Law, c. iv.
form the least conjecture as to the ultimate consequences of such a proceeding.
It must however be allowed, that in cases where all other attempts to reform a criminal have failed, transportation is the most humane, and, at the same time, the most effectual mode of punishment. By this measure the country is, in general, as much secured against a repetition of the crime, as if the criminal were put to death; whilst it is not improbable, that in a different land, and under different circumstances, he may adopt a more correct line of conduct, and even become an useful member of the community. In the complicated and extended relations of our political and commercial concerns, opportunities, and perhaps temptations to criminality arise, which could not exist in the simple transactions of a laborious population, and in an early state of society. The power of habit is well known; and, if it be so remarkable in the common concerns of life, it is to be feared that it is not less operative with respect to those propensities to crime which have been occasioned by many concurring causes, of the force of which those whose road has lain through the smoother tracks of life, can perhaps form no idea. By transportation to a foreign country, a sudden and total alteration in the circumstances, and consequently in the views and feelings of the individual takes place; and that activity or ingenuity which was so dangerously employed at home, may in a foreign country, enable him to become one of the most ingenious artists or successful traders of the place.
It may not however, follow that because the punishment of transportation should remain, this country should continue the unwieldy and expensive operation of sending our convicts to the antipodes. There are other establishments on the coast of Africa, the Cape of Good hope, Canada, and other places, where criminals might be sent with much less expense. Should it be objected, that they would more readily find means of returning from those places to their native country, a transportation to New South Wales might be reserved as a proper punishment for such offence. Nor would it seem an unadvisable measure, under the present circumstances of the country, to
* An instance of this occurs in the case of a person, who being convicted of a capital offence was pardoned, on condition of being transported to New South Wales ; where by his regularity and industry, he has established himself in a beneficial business; and lately transmitted to the author of this tract, a sum of one hundred and twenty pounds; which was divided by his directions amongst his children, who remained in this country.