THE PUNISHMENT OF CRIMINALS. 555 



provided by law against an habitual offender. Each of the 

 colonies is' subject to periodical visits from members of the 

 criminal class, and it is important that ample power should be 

 given to treat them according to their desert. It is almost a 

 burlesque of justice to punish a man who has perhaps a score of 

 convictions against him in another part of Australia as if he were 

 a first offender. Federated Australia would probably render such 

 an anomaly impossible. 



INEQUALITY OF PUNISHMENTS. 



The last portion of the subject to which time permits reference 

 is that of the inequality of punishments by the different Judges. 

 It is often asserted that punishment varies according to the 

 idiosyncrasy of the presiding Judge ; and certainly it is scarcely 

 possible to imagine a wider divergence of opinion upon this point 

 than, say, between the Recorder of Liverpool (Mr. Hopwood, 

 the great exponent of light sentences) and Sir J. Fitzjames Stephen. 

 The latter would probably give as many years' punishment as the 

 former would months' for the same offence. The subject is well 

 dealt with in a recent issue of "The New Review," by Mr. Justice 

 Hawkins, Mr. Hopwood, and by Mr. H. B. Poland, an eminent 

 criminal lawyer. I do not tliink it possible to put the difficulties 

 of the suject in a better light from every point of view than these 

 articles exhibit. Beccaria was of opinion that a short simple code 

 with every punishment attached to every offence, with every 

 motive for aggravation of punishment stated, and on so moderate 

 a scale that no discretion for its mitigation should be necessary, 

 would be the means best calculated to give the penal laws their 

 utmost value as preventives of crime. Mr. Poland's practical 

 ■experience shows that, however excellent Beccaria' s theorj-, it 

 would be impossible to carry it out in practice. 



Previous to 1846 it was customary in Acts of Parliament to fix 

 the absolute and minimum punishment. This was found to so 

 often work injustice that it was abolished. 



Mr. Poland's paper shows how impracticable it is to lay down 

 any rules so as t) jirevent sentences being mrequal Taking the 

 two crimes of manslaughter and perjury as illustrations, he says : — 

 " Manslaughter may be next door to murder, or not far removed 

 from an accident. Perjviry may be perjury to convict an innocent 

 man of murder, or perjury to hide a fault or crime committed many 

 years ago, ur committed to screen the fault of a near relative, or 

 to save the character of a woman." Clearly if the same sentences 

 were given in the respective cases Mr. Poland mentioned the 

 gravest injustice would be done. It would not be tolerated in any 

 community of free men. 



In passing it may be well to bear in mind that the actual 

 carrying out of a sentence, if it is deemed excessive, can always be 

 prevented by the exercise of the prerogative of mercy, so that the 



