company to vice). He should be exempted from cold, be kept perfectly clean, have sufficient food to prevent hunger or illness, wear the prison dress and moderate irons, have no communication with anybody but the officers of the prison and the magistrates, and remain otherwise in the most perfect solitude. We strongly suspect this is the way in which a bad man is to be made afraid of prisons, nor do we think that he would be less inclined to receive moral and religious instruction than any one of seven or eight carpenters in jail, working at a common bench, receiving a part of their earnings, and allowed to purchase with them the delicacies of the season. If this system be not resorted to, the next best system is severe work, ordinary diet, no indulgences, and as much seclusion and solitude as are compatible with work-always remarking that perfect sanity of mind and body are to be preserved.

To this system of severity in jails there is but one objection. The present duration of punishments was calculated for prisons conducted upon very different principles; and if the discipline of prisons were rendered more strict, we are not sure that the duration of imprisonment would be practically shortened, and the punishments would then be quite atrocious and disproportioned. There is a very great disposition, both in judges and magistrates, to increase the duration of imprisonment; and, if that be done, it will be dreadful cruelty to increase the bitterness as well as the time. We should think, for instance, six months' solitary imprisonment to be a punishment of dreadful severity ; but we find, from the House of Commons' Report, that prisoners are sometimes committed by county magistrates for two years* of solitary confinement. And so it may be doubted, whether it is not better to wrap up the rod in flannel and make it a plaything, as it really now is, than to show how it may be wielded with effectual severity. For the pupil, instead of giving one or two stripes, will whip his patient to death. But if this abuse were guarded against the real way to improve would be, now we have made prisons healthy and airy, to make them odious and austere-engines of punishment, and objects of terror.

In this age of charity and of prison improvement there is one aid to prisoners which appears to be wholly overlooked; and that is the means of regulating their defence and providing them witnesses for their trial. A man is tried for murder, or for housebreaking, or robbery, without a single shilling in his pocket. The nonsensical and capricous institions of the English law prevent him from engaging counsel to speak in his defence, if he had the wealth of Croesus; but he has no money to employ even an attorney, or to procure a single witness, or to take out a subpoena. The Judge, we are told, is his counsel-this is sufficiently absurd; but it is not pretended that the Judge is his witness. He solemnly declares that he has three or four witnessess who could give a completely different colour to the transaction; but they are sixty or seventy miles distant, working for their daily bread, and have no money for such a journey, nor for the expense of a residence of some days in an Assize town. They do not know even the time of the

* House of Commons' Report, 355.

*

Assize, nor the modes of tendering their evidence if they could come. When everything is so well marshalled against him on the opposite side, it would be singular if an innocent man, with such an absence of all means of defending himself, should not occasionally be hanged or transported, and accordingly we believe that such things have happened. Let any man, immediately previous to the Assizes, visit the prisoners for trial, and see the many wretches who are to answer to the most serious accusations, without one penny to defend themselves. If it appeared probable, upon inquiry, that these poor creatures had important evidence which they could not bring into Court for want of money, would it not be a wise application of compassionate funds to give them this fair chance of establishing their innocence? It seems to us no bad finale of the pious labours of those who guard the poor from ill-treatment during their imprisonment, to take care that they are not unjustly hanged at the expiration of the term.

THE TREATMENT OF UNTRIED PRISONERS. (E. REVIEW, 1824.)

1. A Letter to the Right Honourable Robert Peel, one of His Majesty's Principal Secretaries of State, &c., &c., &c., on Prison Labour. By JOHN HEADLAM, M.A., Chairman of the Quarter Sessions for the North Riding of the County of York. London: Hatchard and Son. 1823.

2. Information and Observations, respecting the Proposed Improvements at York Castle. Printed by Order of the Committee of Magistrates,

September, 1823.

T has been the practice, all over England, for these last fifty years,† not to compel prisoners to work before guilt was proved. Within

* From the "Clonmel Advertiser" it appears that John Brien, alias Captain Wheeler, was found guilty of murder at the late assizes for the county of Waterford. Previous to his execution he made the following confession :"I now again most solemnly aver, in the presence of that God by whom I will soon be judged, and who sees the secrets of my heart, that only three, viz., Morgan Brien, Patrick Brien, and my unfortunate (self, committed the horrible crimes of murder and burning at Ballygarron, and that the four unfortunate men who have before suffered for them were not in the smallest degree accessary to them. I have been the cause for which they have innocently suffered death. I have contracted a debt of justice with them, and the only and least restitution I can make them is thus publicly, solemnly, and with death before my eyes to acquit their memory of any guilt in the crimes for which I shall deservedly suffer! !”—Philantrophists, No. 6. 208. Pereunt et imputantur. † Headlam, p. 6.

these last three or four years, however, the magistrates of the North Riding of Yorkshire, considering it improper to support any idle person at the county expense, have resolved, that prisoners committed to the House of Correction for trial, and requiring county support, should work for their livelihood; and no sooner was the tread-mill brought into fashion, than that machine was adopted in the North Riding as the species of labour by which such prisoners were to earn their maintenance. If these magistrates did not consider themselves empowered to burden the county rates for the support of prisoners before trial, who would not contribute to support themselves, it does not appear, from the publication of the Reverend Chairman of the Sessions, that any opinions of Counsel were taken as to the legality of so putting prisoners to work, or of refusing them maintenance if they chose to be idle; but the magistrates themselves decided that such was the law of the land. Thirty miles off, however, the law of the land was differently interpreted; and in the Castle of York large sums were annually expended in the maintenance of idle prisoners before trial, and paid by the different Ridings, without remonstrance or resistance.*

Such was the state of affairs in the county of York before the enactment of the recent prison bill. After that period, enlargements and alterations were necessary in the county jail; and it was necessary also for these arrangements, that the magistrates should know whether or not they were authorised to maintain such prisoners at the expense of the county, as, being accounted able and unwilling to work, still claimed the county allowance. To questions proposed upon these points to three barristers the following answers were returned :—

"2dly, I am of opinion that the magistrates are empowered, and are compelled to maintain, at the expense of the county, such prisoners before trial as are able to work, unable to maintain themselves, and not willing to work; and that they have not the power of compelling such prisoners to work, either at the tread-mill, or any other species of labour.

"Lincoln's Inn Fields, 2d September, 1823."

"J. GURNEY.

"I think the magistrates are empowered, under the tenth section (explained by the 37th and 38th) to maintain prisoners before trial, who are able to work, unable to maintain themselves by their own means, or by employment which they themselves can procure, and not willing to work; and I think also, that the words shall be lawful,' in that section, do not leave them a discretion on the subject, but are compulsory. Such prisoners can only be employed in prison labour with their own consent; and it cannot be intended that the Justices may force such consent by withholding from them the necessaries of life, if they do not give it. Even those who are

* We mention the case of the North Riding, to convince our readers that the practice of condemning prisoners to work before trial has existed in some parts of England; for in questions like this we have always found it more difficult to prove the existence of the facts, than to prove that they were mishievous and unjust,

convicted cannot be employed at the tread-mill, which I consider as a species of severe labour.

"September 4th, 1823.”

66

"J. PARKE.

'2dly, As to the point of compelling prisoners confined on criminal charges, and receiving relief from the magistrates, to reasonable labour; to that of the tread-mill, for instance, in which, when properly conducted, there is nothing severe or unreasonable; had the question arisen prior to the late Act, I should with confidence have said, I thought the magistrates had a compulsory power in this respect. Those who cannot live without relief in a jail, cannot live without labour out of it. Labour then is their avocation. Nothing is so injurious to the morals and habits of the prisoner as the indolence prevalent in prisons; nothing so injurious to good order in the prison. The analogy between this and other cases of public support is exceedingly strong; one may almost consider it a general principle that those who live at the charge of the community shall, as far as they are able, give the community a compensation through their labour. But the question does not depend on mere abstract reasoning. The stat. 19 Ch. 2, ch. 4, sec. I, entitled, an 'Act for Relief of poor Prisoners, and setting them on work,' speaks of persons committed for felony and other misdemeanors to the common jail who many times perish before trial; and then proceeds as to setting poor prisoners on work. Then stat. 31 G. 3, c. 46. sec. 13, orders money to be raised for such prisoners of every description, as, being confined within the said jails, or other places of confinement, are not able to work. A late stat. (52 G. 3, c. 160) orders parish relief to such debtors on mesne process in jails, not county jails, as are not able to support themselves; but says nothing of finding or compelling work. Could it be doubted, that if the Justices were to provide work, and the prisoner refused it, such debtors might, like any other parish paupers, be refused the relief mentioned by the statute? In all the above cases, the authority to insist on the prisoner's labour, as the condition and consideration of relief granted him, is, I think, either expressed or necessarily implied: and, thus viewing the subject, I think it was in the power of magistrates prior to the late statute, to compel prisoners, subsisting in all or in part on public relief, to work at the tread-mill. The objection commonly made is, that prisoners, prior to trial, are to be accounted innocent, and to be detained, merely that they may be secured for trial; to this the answer is obvious, that the labour is neither meant as a punishment, nor a disgrace, but simply as a compensation for the relief, at their own request, afforded them. Under the present statute, I, however, have no doubt that poor prisoners are entitled to public support, and that there can be no compulsory labour prior to trial. The two statutes adverted to (19 Ch. 2, c. 4, and 31 G. 3) are, as far as this subject is concerned, expressly repealed. The Legislature then had in contemplation the existing power of Magistrates to order labour before trial, and having it in contemplation, repeals it; substituting (sect. 38) a power of setting to labour only sentenced persons. The 13th rule, too (p. 777), speaks of labour as connected with convicted prisoners, and sect. 37 speaks in general terms of persons committed for trial, as labouring with their own consent. In opposition to these clauses, I think it impossible to speak of implied power, or power founded on general reasoning or analogy. So strong, however, are the arguments in favour of a more extended authority in Justices of the Peace, that it is scarcely to be doubted, that Parliament, on a calm revision of the subject, would be willing to restore, in a more distinct manner than it has

hitherto been enacted, a general discretion on the subject. Were this done, there is one observation I will venture to make, which is, that should some unfortunate association of ideas render the tread-mill a matter of ignominy to common feelings, an enlightened magistracy would scarcely compel an untried prisoner to a species of labour which would disgrace him in his own mind, and in that of the public.

"York, August 27th, 1823."

"S. W. NICOLL.

In consequence, we believe, of these opinions, the North Riding magistrates, on the 13th of October (the new bill commencing on the Ist of September), passed the following resolution :-"That persons committed for trial, who are able to work, and have the means of employment offered them by the visiting magistrates, by which they may earn their support, but who obstinately refuse to work, shall be allowed bread and water only."

By this resolution they admit, of course, that the counsel are right in their interpretation of the present law; and that magistrates are forced to maintain prisoners before trial who do not choose to work. The magistrates say, however, by their resolution, that the food shall be of the plainest and humblest kind, bread and water; meaning, of course, that such prisoners should have a sufficient quantity of bread and water, or otherwise the evasion of the law would be in the highest degree mean and reprehensible. But it is impossible to suppose any such thing to be intended by gentlemen so highly respectable. Their intention is not that idle persons before trial shall starve, but that they shall have barely enough of the plainest food for the support of life and health.

Mr. Headlam has written a pamphlet to show that the old law was very reasonable and proper; that it is quite right that prisoners before trial, who are able to support themselves, but unwilling to work, should be compelled to work, and at the tread-mill, or that all support should be refused them. We are entirely of an opposite opinion: and maintain that it is neither legal or expedient to compel prisoners before trial to work at the tread-mill, or at any species of labour, and that those who refuse to work should be supported upon a plain healthy diet. We impute no sort of blame to the magistrates of the North Riding, or to Mr. Headlam, their Chairman. We have no doubt but that they thought their measures the wisest and the best for correcting evil, and that they adopted them in pursuance of what they thought to be their duty. Nor do we enter into any discussion with Mr. Headlam, as Chairman of a Quarter Sessions, but as the writer of a pamphlet. It is only in his capacity of author that we have anything to do with him. In answering the arguments of Mr. Headlam, we shall notice, at the same time, a few other observations commonly resorted to in defence of a system which we believe to be extremely pernicious, and pregnant with the worst consequences; and so thinking, we contend against it, and in support of the law as it now stands.

We will not dispute with Mr. Headlam, whether his exposition of