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the further changes in the punishment of crimes which several passages in the Report shew it to be the intention of the Committee hereafter to introduce; and, III. On the best course of proceeding for the improvement of criminal law.
I.—]. The first section of the Report relates to the returns of commitments, convictions, and executions, presented to the Committee by the different officers connected with the administration of criminal law. For the pains which they have taken in collecting and publishing these papers, we think the Committee entitled to unqualified approbation. They throw light upon many points, about which no opinion at all could have previously been formed; and others, which were before only probable, they have now set at rest beyond all possibility of dispute. But while we attach due value to the facts which these tables contain, we cannot join in ascribing to them that supreme importance which is often done at the present day. In this respect there is a marked difference between the physical sciences and those which relate to man either as an intellectual or social being. In physical science there is no way of becoming acquainted with the properties of any external object, or of the rules by which it is governed, but by a careful induction and comparison of particulars which have been observed respecting it. But in the sciences which relate to man the case is widely different. The faculties and passions by which every individual is conscious that he himself is actuated, and which, with suitable allowances, operate in a similar manner on all mankind, become in all cases in which man is concerned the real principles upon which our reasoning ought to proceed; and the chief use of the facts contained in statistical tables is merely to correct any misapprehension of those principles into which we may fall, and not to supersede the authority of the principles themselves. The statesman who founds his measures upon a thorough knowledge of the main springs of human action will never greatly miss his way; but he who is guided solely by the assistance of tables can never be sure how far, or in what way, peculiarities in education, society, or government, may have contributed to produce the results which they exhibit. To suppose that by heaping together, or poring over, any description of official returns, it can be discovered by an arithmetical operation what course of legislation or policy any country ought in its particular circumstances to adopt, we conceive to be a dangerous delusion.
2. The second section of the Report relates to those laws of which the Committee have recommended the repeal. They consist of the following acts, which the Committee have divided into two classes.
1. 1 and 2 Phil. and Mary, c. 4. Egyptians remaining within the kingdom one month.
2. 18 Ch. II. c. 3. Notorious thieves in Cumberland and Northumberland.
3. 9 G. I. c. 22. Being in any forest, park, &c. armed and disguised
high road, heath, common, or down.
robbing warrens, &c.
hunting in his Majesty's forests or
11. 9G. I. c. 28. Being disguised within the Mint.
1. 31 Eliz. c. 9. Taking away any maid, widow, or wife, 2. 21 Jam. I. c. 26. Acknowledging or procuring any fine, recovery, &c.
3. 4 G. I. c. 11. sec. 4. Helping to the recovery of stolen goods. 4. 9 G. I. c. 22. Maliciously killing or wounding cattle. cutting down or destroying trees growing, &c.
6. 5 G. II. c. 30. Bankrupts not surrendering, &c. concealing or embezzling.
8. 6 G. II. c. 37. Cutting down the bank of any river.
10. 26 G. II. c. 33. Making a false entry in a marriage register, &c. five felonies.
11. 27 G. II. c. 15. Sending threatening letters.
12. 27 G. II. c. 19. Destroying bank, &c. Bedford Level. 13. 3 G. III. c. 16. Personating out-pensioners of Greenwich Hospital.
14. 22 G. III. c. 40. Maliciously cutting serges.
15. 24 G. III. c. 47. Harbouring offenders against that (revenue) act when returned from transportation.
The Committee propose that the first of these classes should be simply repealed; and in the second, that the punishment of death
should be repealed, and that of transportation, or imprisonment with hard labour, substituted in its stead.
We agree with the Committee in thinking that Nos. 1, 2, 11, and 12, of the first class, might advisably be repealed; and Nos. 2, 6, 7, and 15, of the second, ought not perhaps to be visited with death: but with respect to all the other acts contained in these two classes, the Committee could hardly expect the House of Commons to revoke them without mature deliberation and inquiry. Indeed there are some of them which seem entitled to rank among the most important laws now standing in the statute book.
Nos. 3, 4, 5, 6, 7, 8, 9, and 10 of the first class, and numbers 4 and 5 of the second, are all contained in the 9th G. I. c. 22. commonly called the Black Act, which recites, that several ill'designing and disorderly persons had associated themselves, under 'the name of Blacks, and had, in great numbers, armed with 'swords, fire-arms, and other offensive weapons, with their faces 'blacked, or in disguised habits, unlawfully hunted in forests and 'parks, and destroyed and carried away deer, robbed warrens, rivers ' and fish-ponds, and cut down plantations of trees, and sent letters in fictitious names, threatening some great violence if their un' lawful demands should be refused, or they should be interrupted in or prosecuted for their practices;' and then imposes the punishment of death upon such as are found guilty of any of the offences contained in it. It does not appear that this act was either passed unadvisedly, or believed to be unavailing, for it has been frequently excepted from other repealed acts as well as re-enacted, and was at last made perpetual by 31 G. II. c. 42. Whether it should have been worded, or its provisions limited in the precise manner in which they now are, we do not take upon us to determine; but from the number and magnitude of the offences to which it extends, the various sorts of property which it protects, and the possible recurrence of disorders of an equally formidable nature with those by which it was occasioned, we think it would be unwise to repeal it, without substituting some provision in its room.
No. 1 of Class II. makes it capital to take away women having substance or who are heirs apparent, and afterwards to marry them against their will or to defile them,—a crime of rare occurrence undoubtedly in modern times, and yet of so heinous a nature that it is questionable whether the act should be abolished. It may be said it makes a distinction between persons. Why should it not, if there is ground for the distinction? In nine cases out of ten where offences of this nature have been committed against women, it will be found that the victims have been women of substance, as the records of the Court of Chancery, in which cases of an analogous nature most frequently occur, will abundantly testify. But if there is any
force in the objection, it could easily be removed by extending the act to all women whatsoever. Perhaps in reason it ought to be so, for if force, fraud, contrivance, and injury, can constitute a crime, the whole of these attributes here combine to do so.
Why No. 3 of Class II. should be repealed, we do not readily perceive. It only enacts that persons who have secret acquaintance with felons, and who make it their business to help persons 'to their stolen goods, and by that means gain money from them, 'which is divided between them and the felons, whereby they greatly encourage such offenders,' shall suffer the same punishment with the felon. The punishment of the one therefore must always follow the changes effected by the law in the punishment of the other, and we perceive no impropriety in such arrangement.
No. 10 of Class II. we were not prepared to find among a bundle of Acts of parliament which it is proposed to remove as so much statutory lumber. It inflicts capital punishment on five varieties of the same offence, viz. 1. for knowingly inserting or causing to be inserted in any register any false entry of any matter relating to any marriage; 2. for altering or forging, or causing to be altered or forged, or assisting in altering or forging, any such entry; 3. for forging or altering, or causing to be forged or altered, or assisting in forging or altering any marriage license; 4. for uttering as true any such altered or forged license knowing it to be false; 5. for destroying, or causing to be destroyed, any register in whole or in part, with a view to avoid any marriage, or subject any person to the penalties of this act. The whole of these offences, it must be remembered, may be executed in impenetrable secrecy, evince great deliberation and contrivance, and can only proceed from the basest motives of interest, malice, or revenge on the part of the perpetrators. Still further to increase their enormity, the injury inflicted on those who are the victims of them is irreparable. Most of the misfortunes to which life is subject, can, with the help of time and patience be surmounted; but the act which robs a mother of her honour and contaminates the descent of her issue, inflicts a wound beyond all earthly power to heal. We trust, therefore, that none of the penalties which the law has enacted for securing the integrity of proofs of marriage, will rashly or lightly be abolished.
The offence of personating out-pensioners of Greenwich Hospital, which is No. 13 of Class II. seems at first sight too severe. At the same time it is obvious that unless a heavy penalty were imposed, great loss would be sustained either by the out-pensioners or the public; and perhaps reasons might be adduced in justification of the present law, which would not readily suggest themselves
themselves to any other persons than those who are acquainted with the affairs of the Hospital.
To send knowingly any letter without any name subscribed thereto, or signed with a fictitious name or letter, threatening to 'kill any of His Majesty's subjects, or to burn their houses, out'houses, or stacks of corn, hay or straw,' which forms No. II. of Class II. as well as threatening letters of one or two other descriptions, are crimes which ought perhaps to remain capital. They are usually committed against persons of feeble minds, or such as are placed in solitary or unprotected situations; and when it is considered how much distress they usually occasion to the individuals concerned, and to what degree they undermine the security and happiness of society, they swell into offences of the greatest magnitude.
The only cases now remaining to be considered are Nos. 8, 9, 12 and 14, of Class II. relating to the cutting down of any sea bank or the bank of any river by which any lands may be overflowed or damaged; the destruction of any turnpike-gate, lock, or sluice on any navigable river; the destruction of any bank, &c. belonging to the Bedford Level; and the malicious cutting of serges; which come under the same principle with the outrages provided against by the Black Act. The main reason of the first three enactments is, that the property they protect is of a nature which no foresight or vigilance of the owner can place beyond the reach of danger, but which must at all hours, and especially in unfrequented places and under cloud of night, lie at the mercy of those in the midst of whom he lives;-because the damage done to it may be unlimited, may be executed with great celerity and secrecy, and evinces that premeditated malice and contrivance, which the law of every country in Europe justly regards as the chief ingredient in criminal offences. The amount of the property at stake is of itself a weighty consideration. When the destruction of a bridge, the drying of a canal, or the cutting of a dike in one of the fen countries, may injure the trade of the neighbourhood, or flood the surrounding country to an extent of which none can know the limits, it seems premature to repeal the capital punishment until the evidence of respectable witnesses has been obtained on the subject. We are of the same opinion with respect to the cutting of serges, and also (though it is a point of much difficulty) respecting the cutting down and destroying of growing trees, which the Committee regard as the most venial of the whole class of crimes of which we have now been speaking. As the person cutting or destroying growing trees can neither plead views of profit nor sudden passion in extenuation of his conduct, and can only be impelled to such an act because he believes it will be the most poignant injury he can do to the owner, and that a course of years will be required to repair the da