[125] Notwithstanding the severity of the Law, the composition of felonies and misdemeanors is carried to a much greater height than it is almost possible to believe; and various artifices are resorted to, to elude the penalties.—An instance occurred in August 1792; where a Jew was ordered to take his trial for a rape, committed on a married woman.—The offence appeared, on examination, to be extremely aggravated.—The Grand Jury however did not find a bill; which was thought a very singular circumstance, as the proof had been so clear before the Magistrate. The reasons were afterwards sufficiently explained; which show, what corrupt practices, artifices, and frauds will be used to defeat the ends of justice:—In consequence of a previous undertaking between the Jew and the husband of the woman who had been so grossly abused, a sum of £.20 was left in the hands of a publican, which the prosecutor was to receive if the bill was not found. In this confidence the woman gave a different evidence from that which she had given before the Magistrate. The Jew, however, cheated both the husband and the wife; for he no sooner discovered that he was safe, than he demanded the money of the publican and laughed at the prosecutor.
[126] In criminal cases, a defective indictment is not aided by the verdict of a Jury, as defective pleadings are in civil cases. Indeed wherever life is concerned, great strictness has been at all times observed. That able and humane Judge, Sir Matthew Hale, complained above a century ago,[A] "That this strictness has grown to be a blemish and inconvenience in the law and the administration thereof; for that more offenders escape by the over-easy ear given to exceptions in indictments, than by their own innocence: and many times gross murders, burglaries, robberies, and other heinous and crying offences remain unpunished, by those unseemly niceties; to the reproach of the Law, to the shame of the Government, to the encouragement of villainy, and to the dishonour of God."[B]
[A] He died 1676.
[B] Hale, P.C. 193.
[127] 1 Edward VI. cap. 12: 21 Jac. I. cap. 6: 3 and 4 William and Mary, cap. 9: 4 and 5 William and Mary, cap. 24.
[128] Blackstone.
[129] The benefit of Clergy originated in injustice and inhumanity, and can only be palliated by the rude state of society, when so disgraceful a privilege was legalized and interwoven in the criminal code.—It partakes of the nature of a compromise with villainy.—It perplexes the system of criminal jurisprudence; and since its sting is taken away it would be an improvement to discontinue it totally.
[130] It is said that exile was first introduced as a punishment by the Legislature in the 39th year of Queen Elizabeth, when a statute (39 Eliz. c. 4.) enacted that such rogues as were dangerous to the inferior people should be banished the realm, Barr. Ant. Stat. 269: and that the first statute in which the word Transportation is used is the 18th of Charles II. c. 3. which gives power to Judges at their discretion either to execute or transport to America for life the Moss-Troopers of Cumberland and Northumberland; a law which was made perpetual by the Act 31 Geo. II. c. 42. 2 Woodd. 498.
[131] The unwillingness which it must be expected a Jury would have to convict a man capitally for this offence, might be adduced among many other instances, to show to what extent public justice is defeated, merely from the severity of the laws, and the want of a Scale of punishments proportioned to the offences.
[132] All endeavours towards the prevention of crimes will ever be attended with unconquerable difficulty, until some general House of Industry can be established in the Metropolis: where persons discharged for petty offences, as well as strangers and others out of work, may have an opportunity of finding, at least a temporary employment, sufficient to maintain them. An Institution of this sort would be a work of great charity and humanity; and it is earnestly to be hoped, that the view of the subject given in this Work may induce the Legislature to form a Police Establishment, calculated to promote such a multitude of good and useful objects;[C] more especially as with proper management it would very soon pay itself.