the claims of justice, are indicative of the gradual progress of society. The number of those persons who do not believe either in the positive justice or absolute necessity of punishment by death or transportation is large and rapidly increasing, and they have in many instances displayed the greatest genius in the defence of such belief. The popular mind, or public opinion, which is the only true basis of human legislation, is slowly but surely advancing in favour of the total abolition of capital punishments. When the British Controversialist throws open its impartial pages to such inquiries as, "Ought Capital Punishment to be abolished? "Ought the State and Church to be united?" 'Ought Transportation to be abolished?" it is not to satisfy the curiosity of the reader or speculative debater, but to give expression to public opinion, and indicate the progress of the national mind in religious, political, and social truthsa noble object, and one which must promote the highest good. concerning the nature and extent of punishment for the violation of national laws. Such was the imperfection of penal science (if such it could be then termed), that transportation, rather than death, for minor offences was gladly acceded to. "For fiftyseven years (1718-75) we sowed crime broadcast upon the great seaboard of North America, until the colonies themselves indignantly protested against, and put an end to, our insane policy." In the meantime the immortal Howard had commenced his illustrious and philanthropic career. The world had already echoed with his fame, and the sad hearts of the sons and daughters of crime and misfortune beat with joy as his name re-echoed from shore to shore-from dungeon to dungeon, from the prisons of England to the lazarettos of continental Europe as their benefactor and deliverer. Till his day the administration of justice to the debtor or criminal was an awful tragic farce. For the slightest offences and most trifling debts We propose to examine the law of trans-inen suffered punishments worse than death: portation in se, and inquire, I. Does it come up to the standard of law, or does it embody and express the principles of universal justice? Transportation, considered as a penal law, is partial and imperfect. While, on the one hand, it is a means to preserve social and political peace at home; on the other hand, it is an act of gross injustice abroad. No law can be pronounced good in itself, if in its administration the rights of individuals or nations, or the principles of universal justice, are violated. This is the inevitable result of the transportation system. If we inquire into the origin of this penal law, we shall find that it was not the result of wise deliberation, and a broad survey of all those consequences which might attend or succeed its administration; but, dictu mirabile! the miseries now unparalleled are chronicled in history. What a fearful revelation of all this did Howard, by his godlike goodness and fortitude, make to the wide world! With him "the history of prison science begins. Before his time there were no data on which to base a rule of criminal treatment." It cannot be wondered at, then, that the treatment was imperfect and bad. "The gallows and the penal settlement" were the chief features of this treatment. With the latter we have to do. We cannot better show the origin of transportation than by quoting the words of Judge Heath on the subject of criminal treatment, as it will intimate pretty clearly the wisdom, logic, and spirit of the age on the subject:-"If you imprison at home, the criminal is soon thrown back upon you hardened in guilt. If you transport, you corrupt infant societies, and sow the seeds of atrocious crimes over the habitable globe. There is no regenerating a felon in this life; and for his own sake, as well as for the sake of society, I think it better to hang him." The time had, however, arrived when men were no longer to be hanged for cutting hop-bands and other trivial offences. This being the case, transportation was resorted to, as, according to the wisdom of the legislature, the only possible means of suppressing the crime. England was only to be pre served "by corrupting infant societies, and sowing the seeds of atrocious crimes over the habitable globe." Thus admitted one who stood at the head of the penal administration. Transportation was resorted to; and not until America protested against it did the system meet with any great obstacle. But this was a great one; for it not only saved the American coast from a continual deluge of crime, disease, and misery, but opened the eyes of all civilized nations to the enormity and evil of the system. The mind and genius of Europe were then directed to the study of the social sciences and the philosophy of law. Blackstone and Paley in England, Voltaire and Montesquieu in France, Beccaria in Spain, and the immortal Howard, all came to the same task-¦ the solution of the penal problem. Since the appearance of Beccaria's celebrated work on "Crimes and Punishment," and Howard on the "State of Prisons," the intelligence, patriotism, and wisdom of England have been gradually rising against transportation. Notwithstanding all this, the system was again carried out to as fearful an extent as ever. From 1788 to 1845 England pol-, luted the Australian coast with an everencroaching tide of crime and wretchedness, until the evil assumed such an overwhelming aspect that it was thought no longer judicious to send convicts there. The reader need not be reminded of our present policy, and "the expensive, dangerous, and destructive scheme of transportation to Botany Bay." As was the evil in Beccaria's and Howard's day, so is it now. Transportation still prevails as the law of the land. So difficult is it to undermine evils which legislation has rendered permanent, the lapse of time customary, and the law apparently right. But the popular mind does not consider it an embodiment of justice, good policy, or wisdom, ergo it must soon cease; and the day is not far distant we hope. Truly has it been remarked of "the gallows and penal settlement," that they are both of them" unworthy of an age or country pretending to a high state of civilization; both of them repudiated, or nearly so, by every other enlightened nation." II. What are the consequences of transportation? We may decide whether a law is good by its results. The axiomatic words of Christ, "By their fruits ye shall know them," hold true here. The evils which arise from transportation are many, great, and fearful. This none will deny, the facts are so palpable. These call londly for its total abolition, in a voice that is terribly eloquent, the daylight teachings of which no legislative powers can disregard without incurring equally terrible responsibility. Our space will not allow us to do more than glance at the chief concomitant evils of this system. 1. That it is an act of injustice to foreign colonies, or wherever our convicts may be landed. This we have already shown; indeed, it is an inevitable result of the system. Is it no evil or injustice to export vice, disease, lunacy, physical degeneracy, and moral corruption, into the very heart of "infant societies"? Illogical Heath admitted that it was far better to hang convicts than thus demonize the world. Who would not abhor the man who would dare to pollute the minds of youth? Who, then, can do other than denounce that system of penal administration which does it with "infant colonies," from which nations may spring hereafter to control the world, and that, too, in the light of Christianity, under the sanction of human law? "If we will plant the storm, we must expect to have to reap the whirlwind." Terrible truth, this! 2. Beccaria teaches us, on philosophie principles, that transportation is unjust to the convict himself. This is evident. The removal of the criminal from the country whose laws he has violated tends to obliterate the enormity of his crime from his memory, and ultimately to frustrate the end of the law, by administering an inadequate punishment, providing in the first instance the crime was of such a nature as to call for banishment, which is not always the case. 3. It is truly, according to Howard's words, "an expensive, dangerous, and destructive scheme." The administration of justice is necessarily attended with consider able national expenditure; but even in this there ought to be economy. Transportation is one of the most, if not the most, expensive mode of penal treatment practised; to say nothing of the loss to society of individuals who might be reclaimed to virtuous life and social happiness under a different treatmest, and the awful beggary to which children and wives are oftimes reduced. How few sur-transportation is not the embodiment of jusvive transportation, and how few of those who do see their native shores again! It is a dangerous system. The final nature of transportation produces hardness of heart, remorse, despair, anything but that state of mind which justice administered ought to produce-repentance. It is often attended with great loss of life during the voyages, arising from many now somewhat mitigated evils. tice; that it was resorted to in a dilemma; that those who have examined it in practice as well as theory denounce it as essentially and irremediably bad in se; that it is a twofold injustice; that it is " a profound mistake," and has hitherto proved an utter failure; and, finally, that it is an expensive, dangerous, disastrous, and cruel scheme. Let the candid reader weigh the evidence in his own mind; we are satisfied as to his E. W. S. Thus have we shown that the law of ultimate conviction. NEGATIVE ARTICLE.-I. THE universality of sin is a doctrine maintained by most theologians, while the prevalence of crime is a fact which continually forces itself on the attention of the statesman and the philanthropist. The "origin of evil" may be a subject of dispute; but its widespread influence is a matter of every-day experience. Various are the forms in which this principle manifests itself; but not a few arise from man's character as a social being, and are offences against the social compact. This being the case, society naturally takes cognizance of these offences, and visits the culprit with such punishments as it deems necessary for "prevention or cure." These punishments have been various in kind and different in degree. The individuals upon whom they were inflicted were said to be placed under the ban of society, a word from which our term banishment is derived, being, as we know, denotive of the kind of punish-In the month of May, 1787, the first band ment most frequent in gone-by days. "to send a hundred dissolute persons to Virginia, which the knight-marshal would deliver to them." Transportation, thus introduced into Great Britain, was continued during the seventeenth and eighteenth centuries, until the breaking out of the American war of independence. During this war, and subsequently, various plans were suggested by different individuals, and, amongst others, one by John Howard, for providing another penal system. But all attempts at this failed; and transportation was resumed by an act passed in the twenty-fourth year of George III., "which empowered his majesty in council to appoint to what place beyond the seas, either within or without his majesty's dominions, offenders should be transported; and by two orders in council, dated Dec. 6, 1786, the eastern coast of Australia and the adjacent islands were fixed upon. of convicts left England, and in the succeeding year founded the colony of New South Wales." Penal settlements were afterwards established at Van Diemen's Land, Norfolk Island, Bermuda, &c. Banishment was known as a species of punishment to the ancient Romans; and we have a record of two famous instances of this in the time of Augustus, viz., the poet Ovid, who was banished to a small town on the Against this system of punishment numeEuxine, and Archelaus, the son of Herod the rous objections, as might have been expected, Great, who was banished for life to a city of have been urged. A few great and good Gaul. All Bible readers will remember the men have objected to it on various grounds; case of the writer of the "Revelation," who and some of the colonists-even some of the for his religion was banished to the isle of descendants of transports-have loudly claPatmos. By the statute of 39 Eliz. cap. iv. moured against criminals being sent to polbanishment, which meant mere expulsion | lute their pure atmosphere! Recent events, from the kingdom, was decreed as the pu- especially the discovery of the Australian nishment of dangerous rogues and vaga-gold-mines in the proximity of the penal bonds." James I., however, virtually converted it into an act for transportation to America, by ordering the treasurer and council of the colony of Virginia, in 1619, settlements, have forced this subject upon the attention of our legislators, and led to the introduction of the present governments' Transportation Bill." Upon the discussion of that bill we shall not now presume to enter; but we may remark, in passing, that the unfavourable opinions respecting transportation generally, which have been uttered by many in "high places," seem to indicate that something more in this direction may be expected from the government, and that it is time for the people to consider the subject for themselves, so that they may be in a position to exert their influence beneficially upon their representatives. On these grounds we rejoice in the introduction of the subject to the attention of the intelligent readers of the British Controversialist, and conscientiously take up our pen to maintain that Transportation ought not to be abolished. All punishments, to be effective, must have at least a three-fold tendency. 1st, To inflict a penalty upon the transgressor; 2ndly, To bring a reformatory influence to bear upon him; and 3rdly, To exhibit a preventative example to society at large. Now, we maintain that in a well-directed system of transportation all these tendencies are to be found; and further, that this has been the case in our own system, notwithstanding its imperfect character, and the more imperfect manner in which it has been carried out. I. With regard to the penalty which transportation is felt to be to the offender. Under any circumstances, the idea of leaving home and fatherland, family and friends, is painful; but it becomes ten-fold more so when the removal is by force-when the individual is torn from the embraces of friends, and is sent for a number of years and a hard course of servitude "To sigh his English breath in foreign clouds, Eating the bitter bread of banishment." as a judge, that if he pronounced sentence of imprisonment for life in England, the sentence produced no such effect as if he had said that the prisoner should be transported beyond seas;" and on another occasion he declared to their lordships, from his experience as a judge, he was in a position to state that the sentence of transportation produced the deepest effect, not only upon those upon whom it was passed, but on all who heard it pronounced." II. As regards the reformatory influence of a proper system of transportation, there cannot be two opinions. Antecedently to all experience reason itself would teach us," to use the language of Filangieri, “that it is possible to transform a bad man into a good one, by removing him from the theatre of his crimes, of his infamy, and of his condemnation;" and Dr. Lang, a lengthened and well-known resident in Australia, adds, "Unfavourable as the circumstances of the Australian penal colonies have generally been for ensuring the reformation of criminals, I | am enabled to state, from my own experience and observation, that this object of punishment has actually been attained in these colonies in many instances; and that such instances would, in all probability, have been ten-fold more numerous, but for the circumstances and events connected with the administration of penal discipline in the Australian colonies." This might suffice; but we cannot forbear giving the testimony of our und colonial secretary, who says: "With regard to the beneficial effect of transportation upon the convicts who were sent to the colonies, he found the testimony of all those who had been in Van Diemen's Land-ard the testimony was invariably to the same effect -was, that the great majority of the convicts, having been removed from temptation, had become, as might be expected, orderly and industrious people, who were willing to conform themselves to the laws of society." When we try to realize all this, we wonder not at hearing of female convicts, in past years, under sentence of death, refusing their lives on the condition of being transported to Botany Bay! True, the increased facilities of tran- III. With respect to the preventative insit, the spread of intelligence, and preva- fluence of transportation much need not be lence of voluntary emigration, have done said, for this follows as a natural sequence much to deprive emigration of some of its to its punitive character; and the testimo terrors, but they have left many unmitigated. of Lord Campbell, already adduced, wil In proof of this we have the highest possible have its due weight here. It has been obtestimony that of Lord Campbell, the Lord jected to transportation, that by removing Chief Justice of England-who so recently criminals from this country, we lose the as the 1st of March last stated, in the House exemplary influence of their punishment; of Lords, that "he took on himself to say, but this does not hold good, while their absence constitutes one of the principal ele- Time and space forbid us to add more; but these hasty notes will be sufficient to The Surieties' Section. STUDIES FOR LAW STUDENTS. SEVERAL inquiries from correspondents, on legal points, induce us to resume our remarks under the above heading. The nature of the inquiries now made will lead us into a different course of remark from that previously taken. One of our correspondents asks for a list of works adapted for general reading by law students; another asks if an articled clerk can go up for examination at any time within the last year of his clerkship. A friend has kindly furnished the main information sought by the first inquiry; we shall, therefore, chiefly address ourselves to the second, adding such general information as we may deem likely to be of service to our legal readers generally. It is not a little curious, yet no more curious than true, that there are few matters upon which law students, as a body, are less informed than the details incident to articled clerkship. Great inconvenience must sometimes arise from this fact. When our legal friends reflect upon the great care which it is necessary to exercise during the period of clerkship, in order that there may be no impediments to the compliance with the strict “standing orders" we shall presently have to refer to, they will see how desirable it is that correct information should be early sought by those who would avoid the trouble and annoyance which the want of such information will be almost certain to occasion. It is not to be expected that we shall furnish all the details requisite for the complete guidance of the articled clerk from the date of his articles to the date of his admission as an attorney. Such extended details can only be supplied by works specially prepared for the purpose, and of which there are several extant. We shall content ourselves with furnishing such general information as should be known as well by those who contemplate the study of the law as those who have commenced it. We stated on a previous occasion that the ordinary period of clerkship is five years, except where the pupil has taken a university degree, when three years' service only is requisite. When the term of articles has nearly expired, and the pupil begins to think of taking the necessary steps to secure his "call" for examination, he generally procures a “guide,” and then the real difficulties of his position present themselves. He finds himself called upon, as the preliminary step to the important task on which he is now entering, to answer the following (or similar) stringent questions: 1. What was your age on the day of the date of your articles? |