230
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whose career, or the nature of whose crime makes it evident that no reasonable hope of their reformation can be entertained. It must not be supposed, however, that the effect of fixing a stigma of this kind would be the same here as in England. Within the Colony it might, and in all probability would deprive the branded man of the chance of honest employment. But there seems no good reason to suppose it would have much weight of any kind on the mainland, except to arouse sympathy with the sufferer from the punishment of the foreigner. There are only too many, at any time, within the walls of the gaol, to whom, the Com- mission believe, it is idle to offer any locus pœnitentiæ. For the most part, such are migratory strangers whose only tie to this or any place is the opportunity for plunder. It is not to our laws or mismanagement that these ruffians owe their cri- minal education. Many of them before they come here are too probably deeply stained with crime, and it seems, to say the least of it, somewhat hard that the honest industry and enterprise of the Colony should, in deference to an overstrained sentiment, be heavily burdened to keep up enormous Police and Gaol establish- ments, to look after and provide board and lodging for immigrants of this description, when a little more judicious severity might afford reasonable means of getting rid of them altogether. Branding would, beyond doubt, greatly assist this desirable object.
75. The value of any steps to keep crime away from our doors becomes theDetection. more obvious when the difficulties attendant on its detection are considered. Mr. MAY, whose experience as Superintendent of Police, and for many years sub- sequently as Senior Police Magistrate, has given him umple opportunity of forming a judgment in the matter, estimates (pp. 83, 84) that sixty per cent. of the crime committed here remains undetected. If this estimate is to be accepted as even approximately correct it is certainly somewhat appalling. The Commnission are convinced, also, that a very large percentage of crime remains unreported even. Whatever causes may be at work to produce these results, they certainly shew that the prevention, rather than the detection of crime should be aimed at by the authorities.
76. The unfitness of our criminal procedure to the circumstances of this Colony Legal Procedare. has long since passed almost into a proverb. Clumsy, and often wholly illogical in itself, its useful application is only possible among the people to whom it owes its origin. A love of truth and fair play is essential to any race before they can be successfully subjected to it; whilst its formal, rigid rules seem specially framed to favour the escape of guilt among a people famed for sublety and dissimu- The difficulties lation, and to foster grievous conspiracies against the innocent. inherent to the administration of justice amongst a race whose habits and modes of thought are but dimly understood at the best, have but too often been increased by a pedantic adherence to rules whose significance and value are political rather than logical.
The law, so foreign to the notions of Chinese, against the examination of prisoners, rouses in their mind a contempt which often finds expression in the bringing of carefully supported false charges to avenge private quarrels or piques; whilst it is to be feared the frequent escape of the guilty, for want of the proofs which our procedure has carefully excluded, gives too much room for a feeling that some offences may be committed almost with impunity.
77. The Commission wish to call attention to the working of the Bail and and Security System, Security system. There seems much reason to fear that the giving of security
Punishments.
Funishments,
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for criminals is carried on as a business which is made to pay out of the profits of crime, and that bails become, from their position, interested in the encouragement and concealment of the offences against which the system is intended to guard. The Commission think that the greatest caution should be observed in working it.
78. The punishments of our criminals cannot be passed over without remark. It is a thing universally known that crime is expiated in China by sufferings terrible in their degree, and that shocking tortures are resorted to to obtain evidence or confessions. The greater and lesser bamboo, the cangue, the executioner's sword or set of delicate knives, the rack, the fetid and swarning dungeon, the cross, the cage of exposure, with a host of cruel expedients devised by magisterial rigour on the spur of the moment and only nominally illegal form the armoury of the Chinese officer, and to one or other of them the criminal has to look forward upon his conviction. Compare this state of things with the prospect before him when he crosses the harbour. Let him then but be shrewd enough to keep clear of detection in any of those crimes of violence which subject him to the wholesome influence of the cat, and conviction is followed by a life of luxury and ease greater than he has probably ever known before. Except for the mere restraint of confinement, which to most Chinamen is not very irksome, he finds himself surrounded with every comfort--roomy and clean quarters, congenial society, the kindest of treatment, wholesome and plentiful food, work about sufficient to give him an appetite to enjoy it, medical attendance and comforts, a prospect of release amidst ample booty, and all the attractions of the brothels, theatres, shows, and opium shops so dear to every Chinaman's heart; and with nothing worse behind it than a return to his present comfortable mode of life when he may happen to be caught again. Much of all this is of course irremediable, but it nevertheless cannot be denied that it adds one more attraction to the Chinese thief and so forms a serious public grievance. It must not, however, be supposed that the Commission arc intending to throw any blame on the gaol authorities. The excellent management of the institution over which Mr. DOUGLAS presides is admitted, and the discipline he has it in his power to administer is no doubt faithfully carried out, while the labour upon the roads and other works to which the convicts are put is the best and most useful to which their services can be turned. It is in its deterrent aspect that the Commission regard our system of punishment as altogether failing. A sentiment of humanity, very much misplaced when we come to deal with a race that misunderstand it, and regard it as a sign of weakness, has always stood in the way of the free infliction of the penalty which the Chinaman particularly dreads, that of the lash. Its inexorable application to one class of offences exceedingly common in former years, that of wrenching ornaments from women's ears, has caused that crime to disappear almost entirely from the criminal calendar, and highway robberies with violence have undergone marked diminution from the same cause. The Commission can see no reason why this useful mode of punishment should not be extended indefinitely, and they do not hesitate to recommend that power should be entrusted to the hands of the presiding judge at any Criminal Sessions to order a flogging in every case of felony which in his opinion disclosed circumstances to deserve it, in addition to the punishment already imposed by law. Experience shows no reason to fear that such a power would be abused, while, even if sparingly exercised, the fact of its existence could not but have a salutary deterrent effect.
79. There are other forms of punishment which the Chinese regard with