which pardoned convicts under sentence of death on their
consenting to be transported to convict settlements in the colonies.
(See Deportation.) For some years this was only done by the
consent of the convict, who agreed to be transported if his death
sentence was remitted, but in 1824, when a convict refused to
give this consent, parliament authorized the crown to substitute
transportation for a death sentence, and the same course was
adopted in Ireland in 1851 when some treason-felony prisoners
refused commutation of their sentence to transportation.
The punishments now in use under the English law for indictable offences are:—
1. Death, inflicted by hanging, with a provision that other modes of execution may be authorized by royal warrant in cases of high treason.
2. Penal servitude, which in 1853 was substituted for transportation to penal settlements outside the United Kingdom. The minimum term of penal servitude is three years (Penal Servitude Act 1891), and the sentence is carried out in a convict prison, in the United Kingdom, but there is still power to send the convicts out of the United Kingdom.
3. Imprisonment in a local prison, which must be without hard labour unless a statute specially authorizes a sentence of hard labour. At common law there is no limit to a term of imprisonment for misdemeanour; but for many offences (both felonies and misdemeanours) the term is limited by statute to two years, and in practice this limit is not exceeded for any offence. The treatment of prisoners is regulated by the prison acts and rules.
4. Police supervision, on conviction or indictment of felony and certain misdemeanours after a previous conviction of such offences. Prevention of Crimes Act, c. 112, §§ 8, 20.
5. Pecuniary fine, a punishment appropriate only to misdemeanours and never imposed for a felony except under statutory authority, e.g. manslaughter (Offences against the Person Act, § 5). The amount of the fine is in the discretion of the judge, subject to the directions of Magna Carta and the Bill of Rights and of any statute limiting the maximum for a particular offence.
6. Whipping was a common law punishment for misdemeanants of either sex. Under the present law the whipping of females is prohibited, and the punishment is not inflicted on males except under statutory authority, which is given in the case of certain assaults on the sovereign, of certain forms of robbery with violence or assaults with intent to commit felony (Garrotters Act 1863), of incorrigible rogues, larceny and malicious damage, and certain other offences by youthful offenders.
7. Recognizances (caution) to keep peace and be of good behaviour, i.e. a bond with or without sureties creating a debt to the crown not enforceable unless the conditions as to conduct therein made are broken. This bond may be taken from any misdemeanant, and, under statutory authority, from persons convicted of any felony (except murder) falling within the Criminal Law Consolidation Acts of 1861.
8. In the case of any offence which is not capital the court, if it is a first offence or if any other grounds for mercy appear, may simply bind the offender over to come up for judgment when required, intimating to him that if his conduct is good no further steps will be taken to punish him.
Except in the case of the death penalty, the court of trial has a discretion as to the quantum of a particular punishment, no minimum being fixed. In the case of offences punishable on summary conviction the maximum punishment is always fixed by statute. It consists of imprisonment with or without hard labour, or a fine of a limited amount, or both. The imprisonment in very few cases may exceed six months. If the maximum exceeds three months the accused must be informed that he has a right, if he so elects, to be tried by a jury.
Where power is given to deal summarily with offences which under ordinary circumstances would be tried on indictment, the punishments are as follows (Summary Jurisdiction Act 1879):—
(a) In the case of adults pleading guilty, imprisonment not exceeding six months without the option of a fine.
(b) In the case of adults (consenting to be summarily tried), where the offence affects property not worth over forty shillings, imprisonment not over three months, or fine not exceeding £20.
(c) In the case of young persons, between twelve and sixteen years, imprisonment not over three months, or fine not exceeding £10.
(d) In the case of children under twelve, imprisonment not over one month, or fine not exceeding forty shillings.
If the offence is trifling, the accused may be discharged without punishment, and under the First Offenders Act (1887) the justices have a discretionary power to forgo punishment. The justices have also the power, under the Prevention of Crime Act 1908, in lieu of passing a sentence of penal servitude or imprisonment, to commit persons between the ages of sixteen and twenty-one to a Borstal institution, for a period of detention ranging from one to three years (see Juvenile Offenders).
In the criminal law of Europe the scale of punishments is on similar lines in most states, and is more elaborate than that of England, and less is left to the discretion of the court of trial. The following examples will indicate the kind of punishments awarded under the French penal code. Punishments are classified as (1) afflictives et infamantes, including death, travaux forcés à perpétuité ou à temps, déportation, détention, reclusion; (2) infamantes, viz. banishment and civil degradation; (3) peines en matière correctionnelle, viz. imprisonment in a house of correction (six days to five years), interdiction from certain civic rights, and fine. The punishments in no case have any effect to extinguish the civil claims of individuals who have suffered by the offence (arts. 6 and 55). Special provisions are made for récidivistes, police supervision and first offenders (Loi Bérenger).
In the German code of 1872 the legal punishments are: (1) death; (2) penal servitude for life or for a term not exceeding fifteen years nor less than one year; (3) imprisonment with labour for a term not exceeding five years nor less than one day; (4) confinement in a fortress (terms same as for penal servitude but involving only withdrawal of freedom and supervision); (5) arrest for not more than six weeks nor less than one day; (6) fine (not less than three marks in the case of crimes or delicts nor one mark in case of petty offences). Sentence of imprisonment is in certain cases followed by liability to be placed under police supervision for a term after release. In the case of a sentence of death or of penal servitude, the court may order forfeiture of civil privileges, and a condemnation to penal servitude permanently disqualifies for service in the army and public office (Code pt. 1, chap. 1, arts. 13-40).
Under the Italian code of 1889 (arts. 11-30) the punishments are (1) ergastolo (for life); (2) reclusione (from three days to twenty-four years), which involves hard labour and cellular confinement; (3) detenzione (like term), which involves labour and at night separate confinement; (4) confino (one month to three years), a form of banishment from the commune of origin or residence of the offender; (5a) fine (multa), from ten to ten thousand lire; (5b) amende, from one to two thousand lire; (6) arrest (one day to two years); (7) interdiction from public office; (8) suspension from professional calling. Punishments (5b), (6) and (8) are applied only to contraventions, the others to crimes (delitti).
The Spanish law (Codigo Penal, title 3, chaps. 2 and 3) contains a general scale of punishments classified as afflictive, correctional, light and accessory. The first class begins with death and runs down through many forms of imprisonment to disqualification (inhabilitacion). The second includes forms of imprisonment, (presidio and prisión), and arrest, public censure and suspension from the exercise of certain offices or callings. The slight punishments are minor arrest and private censure. Offenders in any of the three classes may also be fined or put under recognizance (caución). The accessory punishments include payment of costs, degradation, civil interdiction.
In England indictable offences (i.e. offences which must be tried by a judge and jury) are thus dealt with:—
1. Courts of assize (sitting under old commissions known as
