Colquhoun shows how strangely the severity of the law was combined with its extreme capriciousness.He quotes Bacon(37)for the statement that the law was a 'heterogeneous mass concocted too often on the spur of the moment,'and gives sufficient proofs of its truth.He desires,for example,a law to punish receivers of stolen goods,and says that there were excellent laws in existence.Unfortunately one law applied exclusively to the case of pewter-pots,and another exclusively to the precious metals;neither could be used as against receivers of horses or bank notes.(38)So a man indicted under an act against stealing from ships on navigable rivers escaped,because the barge from which he stole happened to be aground.Gangs could afford to corrupt witnesses or to pay knavish lawyers skilled in applying these vagaries of legislation.Juries also disliked convicting when the penalty for coining six-pence was the same as the penalty for killing a mother.It followed,as he shows by statistics,that half the persons committed for trial escaped by petty chicanery or corruption,or the reluctance of juries to convict for capital offences.Only about one-fifth of the capital sentences were executed;and many were pardoned on condition of enlisting to improve the morals of the army.The criminals,who were neither hanged nor allowed to escape,were sent to prisons,which were schools of vice.After the independence of the American colonies,the system of transportation to Australia had begun (in 1787);but the expense was enormous,and prisoners were huddled together in the hulks at Woolwich and Portsmouth,which had been used as a temporary expedient.Thence they were constantly discharged,to return to their old practices.A man,says Colquhoun,(39)would deserve a statue who should carry out a plan for helping discharged prisoners.To meet these evils,Colquhoun proposes various remedies,such as a metropolitan police,a public prosecutor,or even a codification or revision of the Criminal Code,which he sees is likely to be delayed.He also suggested,in a pamphlet of 1799,a kind of charity organisation society to prevent the waste of funds.Many other pamphlets of similar tendencies show his active zeal in promoting various reforms.
Colquhoun was in close correspondence with Bentham from the year 1798,(40)and Bentham helped him by drawing the Thames Police Act,passed in 1800,to give effect to some of the suggestions in the Treatise.(41)Another set of abuses has a special connection with Bentham's activity.
Bentham had been led in 1778to attend to the prison question by reading Howard's book on Prisons;and he refers to the 'venerable friend who had lived an apostle and died a martyr.'(42)The career of John Howard (1726-1790)is familiar.The son of a London tradesman,he had inherited an estate in Bedfordshire.There he erected model cottages and village schools;and,on becoming sheriff of the county in 1773,was led to attend to abuses in the prisons.Two acts of parliament were passed in 1774to remedy some of the evils exposed,and he pursued the inquiry at home and abroad.His results are given in his State of the Prisons in England and Wales (1779,fourth edition,1792),and his Account of the Principal Lazarettos in Europe (1789).
The prisoners,he says,had little food,sometimes a penny loaf a day,and sometimes nothing;no water,no fresh air,no sewers,and no bedding.The stench was appalling,and gaol fever killed more than died on the gallows.
Debtors and felons,men,women and children,were huddled together;often with lunatics,who were shown by the gaolers for money.'Garnish'was extorted;the gaolers kept drinking-taps;gambling flourished:and prisoners were often cruelly ironed,and kept for long periods before trial.At Hull the assizes had only been held once in seven years,and afterwards once in three.It is a comfort to find that the whole number of prisoners in England and Wales amounted,in 1780,to about 4400,1078of whom were debtors,798felons,and 917petty offenders.An act passed in 1779provided for the erection of two penitentiaries.Howard was to be a supervisor.The failure to carry out this act led,as we shall see,to one of Bentham's most characteristic undertakings.One peculiarity must be noted.Howard found prisons on the continent where the treatment was bad and torture still occasionally practised;but he nowhere found things so bad as in England.In Holland the prisons were so neat and clean as to make it difficult to believe that they were prisons:and they were used as models for the legislation of 1779.One cause of this unenviable distinction of English prisons had been indicated by an earlier investigation.General Oglethorpe (1696-1785)had been started in his philanthropic career by obtaining a committee of the House of Commons in 1729to inquire into the state of the gaols.The foundation of the colony of Georgia as an outlet for the population was one result of the inquiry.
It led,in the first place,however,to a trial of persons accused of atrocious cruelties at the Fleet prison.(43)The trial was abortive.It appeared in the course of the proceedings that the Fleet prison was a 'freehold.'A patent for rebuilding it had been granted to Sir Jeremy Whichcot under Charles II,and had been sold to one Higgins,who resold it to other persons for £5000.
The proprietors made their investment pay by cruel ill-treatment of the prisoners,oppressing the poor and letting off parts of the prison to dealers in drink.
This was the general plan in the prisons examined by Howard,and helps to account for the gross abuses.It is one more application of the general system.