The sentence of another Judge upon another prisoner ought not to be followed, for each prisoner should be punished for nothing but the particular crime which he has committed. For this reason the case of each individual should be considered by itself.
I dislike, also, the practice of passing a severe sentence for a trifling offence merely because it has been a common habit in other places or of other persons. For instance I have known five years of penal servitude imposed for stealing from outside a shop on a second conviction, when one month would have been more than enough on a first conviction, and two or three months on a second conviction. For small offences like these the penalty should always be the same in character—I mean not excessive imprisonment, and never penal servitude. As often as a man steals let him be sent to prison, and it may be for each offence the time of imprisonment should be somewhat slightly increased, but not the character of the punishment.
Years ago, in my Session days, I remember a poor and, I am afraid, dishonest client of mine being transported for life (on a second conviction for larceny) for stealing a donkey; but I doubt if that could happen nowadays. It seems incredible.
Nobody who has carefully noted the innumerable phases of crime which our criminal courts have continually to deal with, and the infinite shades of guilt attached to each of those crimes, will fail to come to the conclusion that one might as well attempt to allocate to its fitting place each grain of sand, exposed to the currents of a desert and all other disturbing influences, as endeavour by any scheme or fixed rule to determine what is the fitting sentence to be endured for every crime which a person can be proved, under any circumstances, to have committed.
The course I adopted in practice was this. My first care was never to pass any sentence inconsistent with any other sentence passed under similar circumstances for another though similar offence. Then I proceeded to fix in my own mind what ought to be the outside sentence that should be awarded for that particular offence had it stood alone; and from that I deducted every circumstance of mitigation, provocation, etc., the balance representing the sentence I finally awarded, confining it purely to the actual guilt of the prisoner.
I have noticed that burglaries with violence are rarely committed by one man alone, and that when two or more men are concerned in a murder, one or more of them being afraid that some one, in the hope of saving himself from the treachery of others, is anxious to shift the whole guilt of the robbery, with its accompanying violence, on to the shoulders of his comrades. It is well that this should be so, and that such dangerous criminals should distrust with fear and hatred their equally guilty associates.
Except for special peremptory reasons, I never passed sentence until I had reconsidered the case and informed my own mind, to the best of my ability, as to what was the true magnitude and character of the offence I was called upon to punish.
The effect of such deliberation was that I often mitigated the punishment I had intended to inflict, and when I had proposed my sentence I do not remember ever feeling that I had acted excessively or done injustice. I am now quite certain that no sentence can be properly awarded unless after such consideration. I speak, of course, only of serious crimes.
It has more than once happened that even after all the evidence in the case was before the jury, as was supposed, I have discovered that an accused man, in mitigation of sentence, has pleaded that which would have been a perfect defence to the charge made against him! One of these instances was very remarkable. It happened at some country racecourse.
A man was charged with robbing another who was in custody in charge of the police for "welshing." The prisoner had undoubtedly, while the prosecutor, as I will call him, was in custody, and being led along the course, rushed up to him, after jumping the barriers, and put his hand in his coat-pocket, pulling out his pocket-book and other articles. He then made off, but was pursued by the police and arrested. He was indicted for the robbery, and the facts were undisputed.