selling game, granted by country magistrates, would, from their jealousy upon these subjects, be granted only to persons of some respectability and property. The purchase of game from unqualified persons would, of course, be guarded against by very heavy penalties, both personal and pecuniary; and these penalties would be inflicted, because opinion would go with them. "Here is

a respectable tradesman," it would be said, "who might have bought as much game as he pleased in a lawful manner, but who, in order to increase his profits by buying it a little cheaper, has encouraged a poacher to steal it." Public opinion, therefore, would certainly be in favour of a very strong punishment; and a licensed vendor of game, who exposed himself to these risks, would expose himself to the loss of liberty, property, character, and licence. The persons interested to put a stop to such a practice would not be the paid agents of Government, as in cases of smuggling; but all the gentlemen of the country, the customers of the tradesman for fish, poultry, or whatever else he dealt in, would have an interest in putting down the practice. In all probability, the practice would become disreputable, like the purchase of stolen poultry; and this would be a stronger barrier than the strongest laws. There would, of course, be some exceptions to this statement. A few shabby people would, for the chance of gaining sixpence, incur the risk of ruin and disgrace; but it is probable that the general practice would be otherwise.

For the same reasons the consumers of game would rather give a little more for it to a licensed poulterer than expose themselves to severe penalties by purchasing from poachers. The great mass of London consumers are supplied now, not from shabby people, in whom they can have no confidence -not from hawkers and porters, but from respectable tradesmen in whose probity they have the most perfect confidence. Men will brave the law for pheasants, but not for sixpence or a shilling; and the law itself is much more difficult to be braved when it allows pheasants to be bought at some price than when it endeavours to render them utterly inaccessible to wealth. All the licensed salesmen, too, would have a direct interest in stopping the contraband trade of game. They would lose no character in doing so; their informations would be reasonable and respectable.

If all this be true the poacher would have to compete with a great mass of game fairly and honestly poured into the market. He would be selling with a rope about his neck, to a person who bought with a rope about his neck; his description of customers would be much the same as the customers for stolen poultry, and his profits would be very materially abridged. At present the poacher is in the same situation as the smuggler would be if rum and brandy could not be purchased of any fair trader. The great check to the profits of the smuggler are, that, if you want his commodities and will pay a higher price, you may have them elsewhere without the risk of disgrace. But forbid the purchase of these luxuries at any price. Shut up the shop of the brandy merchant, and you render the trade of the smuggler of incalculable value. The object of the intended bill is to raise up precisely the same competition to the trade of the poacher, by giving the public an opportunity of buying lawfully and honestly the tempting articles in which he now deals exclusively. Such an improvement would not, perhaps, altogether annihilate his trade, but it would, in all probability, act as a very material check upon it.

The predominant argument against all this is that the existing prohibition against buying game, though partially violated, does deter many persons from coming into the market; that if this prohibition were removed, the demand for game would be increased, the legal supply would be insufficient, and the residue would, and must be, supplied by the poacher, whose trade would, for these reasons, be as lucrative and flourishing as before. But it is only a few

years since the purchase of game has been made illegal; and the market does not appear to have been at all narrowed by the prohibition; not one head of game the less has been sold by the poulterers; and scarcely one single conviction has taken place under that law. How, then, would the removal of the prohibition and the alteration of the law extend the market and increase the demand when the enactment of the prohibition has had no effect in narrowing it? But if the demand increases, why not the legal supply also? Game is increased upon an estate by feeding them in winter, by making some abatement to the tenants for guarding against depredations, by a large apparatus of gamekeepers and spies-in short, by expense. But if this pleasure of shooting, so natural to country gentlemen, be made to pay its own expenses by sending superfluous game to market, more men, it is reasonable to suppose, will thus preserve and augment their game. The love of pleasure and amusement will produce in the owners of game that desire to multiply game which the love of gain does in the farmer to multiply poultry. Many gentlemen of small fortune will remember that they cannot enjoy to any extent this pleasure without this resource; that the legal sale of poultry will discountenance poaching; and they will open an account with the poulterer, not to get richer, but to enjoy a great pleasure without an expense, in which upon other terms they could not honourably and conscientiously indulge. If country gentlemen of moderate fortune will do this (and we think after a little time they will do it), game may be multiplied and legally supplied to any extent. Another keeper and another bean stack will produce their proportional supply of pheasants. The only reason why the great lord has more game per acre than the little squire is that he spends more money per acre to preserve it.

For these reasons we think the experiment of legalising the sale of game ought to be tried. The game laws have been carried to a pitch of oppression which is a disgrace to the country. The prisons are half filled with peasants, shut up for the irregular slaughter of rabbits and birds-a sufficient reason for killing a weasel, but not for imprisoning a man. Something should be done; it is disgraceful to a Government to stand by and see such enormous evils without interference. It is true they are not connected with the struggles of party; but still, the happiness of the common people, whatever gentlemen may say, ought every now and then to be considered."

1.

2.

TREAD-MILL PUNISHMENT OF UNTRIED PRISONERS. (E. REVIEW, January, 1824.)

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.

Information and Observations, respecting the proposed Improvements at York Castle. Printed by Order of the Committee of Magistrates, September, 1823.

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

Headlam, p. 6.

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, 2nd 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 convicted cannot be employed at the tread-mill, which I consider as a species of severe labour.

"September 4th, 1823."

"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 gaol, 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, c. 4, sect. 1, 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 gaol 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 gaols, 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 gaols, not county gaols, 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

* 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 mischievous and unjust.

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 1st 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 nor 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 Fave no doubt but that they thought their measures the wisest and the 1 cst 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 session, but as the writer of a pamphlet. It is only in his capacity of author that we have anything to do with bim. 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 the old law be right or wrong; because time cannot be more unprofitably employed than in hearing gentlemen who are not lawyers discuss points of law. We dare to say Mr. Headlam knows as much of the laws of his country as magistrates in general do; but he will pardon us for believing that for the moderate sum of three guineas a much better opinion of what the law is now, or was then, can be purchased, than it is in the power of Mr. Headlam, or of any county magistrate, to give for nothing-Cuilibet in arte sua credendum est. It is concerning the expediency of such laws, and upon that point alone, that we are at issue with Mr. Headlam; and do not let this gentleman suppose. it to be any answer to our remarks to state what is done in the prison in which he is concerned, now the law is altered. The question is whether he is right or wrong in his reasoning upon what the law ought to be; we wish to hold out such reasoning to public notice, and think it important it should be refuted-doubly important, when it comes from an author, the leader of the Quorum, who may say with the pious Æneas,—

Quæque ipse miserrima vidi,
Et quorum pars magna fui."

If, in this discussion, we are forced to insist upon the plainest and most elementary truths, the fault is not with us, but with those who forget them; and who refuse to be any longer restrained by those principles which have hitherto been held to be as clear as they are important to human happiness.

To begin, then, with the nominative case and the verb-we must remind those advocates for the tread-mill, a parte ante (for with the millers a parte post we have no quarrel), that it is one of the oldest maxims of common sense, common humanity, and common law, to consider every man as innocent till he is proved to be guilty; and not only to consider him to be innocent, but to treat him as if he were so; to exercise upon his case not merely a barren speculation, but one which produces practical effects, and which secures to a prisoner the treatment of an honest, unpunished man. Now, to compel prisoners before trial to work at the tread-mill, as the condition of their support, must, in a great number of instances, operate as a very severe punishment. A prisoner may be a tailor, a watchmaker, a bookbinder, a printer, totally unaccustomed to any such species of labour. Such a man may be cast into jail at the end of August,* and not tried till the March following, is it no punishment to such a man to walk up hill like a turnspit dog, in an infamous machine, for six months? And yet there are gentlemen who suppose that the common people do not consider this as punishment !—that the gayest and most joyous of human beings is a treader, untried by a jury of his countrymen, in the fifth month of lifting up the leg, and striving against the law of gravity, supported by the glorious information which he receives from the turnkey, that he has all the time been grinding flour on the other side of the wall! If this sort of exercise, necessarily painful to sedentary persons, is agreeable to persons accustomed to labour, then make it voluntary -give the prisoners their choice-give more money and more diet to those who can and will labour at the tread-mill, if the tread-mill (now so dear to magistrates) is a proper punishment for untried prisoners. The position we are contending against is that all poor prisoners who are able to work should be put to work upon the tread-mill, the inevitable consequence of which

*Mr. Headlam, as we understand him, would extend this labour to all poor prisoners before trial, in jails which are delivered twice a year at the Assizes, as well as to Houses of Correction delivered four times a year at the Sessions; i.e. not extend the labour but refuse all support to those who refuse the labour-a distinction, but not a difference.