Of course I instantly stopped the case and directed an acquittal.  I then gave both parties a little advice.  To the prosecutor (the welsher) I said, “Don’t go welshing any more;” and to the prisoner, “If you ever again see a welsher in distress, don’t help him.”

I should like to say one word more.  It should not be supposed that a man, when sentenced, is altogether bad because he uses insulting language to the Judge.  He may not be utterly bad and past all hope of redemption on that account.

The want of even an approach to uniformity in criminal sentences is no doubt a very serious matter, and is due, not to any defect in the criminal law (much as I think that might be improved in many respects), but is owing to the great diversity of opinion, and therefore of action, which not unnaturally exists among criminal Judges, from the highest to the humblest, numbering, as they do, at least 5,000 personages, including Judges of the High Courts, commissioners, recorders, police magistrates, and justices of the peace.

When one considers the conditions under which the criminal law is administered in England, and remembers that no fixed principles upon which punishments should be awarded have been authoritatively laid down, and that the law has stated only a maximum (but happily at the present time not a minimum), and each Judge is left practically at liberty to exercise his own unfettered discretion so long as he confines himself within the limit so prescribed, it is no matter for wonder that so great a diversity of punishment should follow so great a variety of opinion.

Even in the most accurate and useful books of practice to which all look for guidance and assistance during every stage of the criminal proceedings, down to the conviction of the offender, no serious attempt has been made to deal, even in the most general way, with the mode in which the appropriate sentence should be arrived at.

The result of this state of things is extremely unsatisfactory, and the most glaring irregularities, diversity, and variety of sentences are daily brought to our notice, the same offence committed under similar circumstances being visited by one Judge with a long term of penal servitude, by another with simple imprisonment, with nothing appreciable to account for the difference.

In one or the other of these sentences discretion must have been erroneously exercised.  I have seen such diversity even between Judges of profound learning in the law who might not unreasonably, prima facie, be pointed to as safe examples to be followed; and so they were, so far as regarded their legal utterances.  Experience, however, has told us that the profoundest lawyers are not always the best administrators of the criminal law.

Practically there are now no criminal offences which can be visited with the penalty of death.  Treason and murder still remain.  For the latter offence the Judge is bound to pronounce sentence of death, which is imperatively fixed and ordained by Act of Parliament, and any other sentence would be illegal.