in chains, and then demanding of him who he was, and what he had done." At a later day, in Hale's " History of the Pleas of the Crown," it was declared : " Fet ters ought not to be used, unless there is just reason to fear an escape, as where the pris oner is unruly, or makes an attempt to that purpose; otherwise, notwithstanding the com mon practice of gaolers, it seems altogether unwarrantable and contrary to the mildness and humanity of the laws of England, by which gaolers are forbid to put their pris oners to any pain or torment." Mr. Emlyn fully recognized the evil con sequences of the common management of gaols. He denounced them as schools and nurseries of roguery and wickedness, rather than proper places for correction and amend ment, where raw offenders, with some sense of shame and modesty, soon became impu dent and hardened villains, well instructed in the theory, and experienced in the practice of crime. The keepers, interested in the sale of liquors, found their account in pro moting rioting and debauchery. Contagious distempers raged violently in many gaols, spreading their infection to the very courts where the prisoners were brought to trial, to the great hazard of judges, juries, counsel and idle spectators. Baker, in his Chronicle, records an instance in the twen tieth year of Queen Elizabeth at the Oxford Assizes, " when the prisoners brought such
a stench with them into court, that the Lord Chief Baron Bell, the sheriff, several counsel, almost all the jurors, and near three hundred others, died within the space of forty hours after it." A more recent instance occurred in the death of Chief Baron of the Exchequer, Thomas Pengelly, who owed his talents and his origin to an amour of the Protector Richard Cromwell. A florid speaker and a bold advocate, he had been appointed to the bench in 1726, and as a judge exhibited patience and firmness, as well as knowledge and discrimination. While on the Western Circuit, some prisoners were brought from Uchester for trial at Taunton, and the con tagion spread by their presence caused the death of some hundreds of persons, among whom was the Chief Baron. I have never looked at his portrait, with its strong but not unkindly features, without reflecting upon his dreadful fate, and the unhappy condition of the wretched men who had appeared be fore him. He is to be remembered not only as a victim of the shocking system prevailing in the gaols, but as a humane and enlightened philanthropist, who left by his will a consid erable sum for the discharge of prisoners confined for debt. His picture fitly closes this imperfect sketch. In future papers, it is my purpose to trace some of the features of early criminal law, and the steps taken to ameliorate the criminal code.
