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mage, if it be not altogether irreparable; these considerations united render it, in our estimation, one of the deepest offences which can be committed against property, and evincing a depravity of mind which affords little presage of reformation either from removal to New South Wales or meditation in a Penitentiary. In confirmation of what we have said, we refer to the very case on which the Committee, (page 6 of their Report), have made the following diametrically opposite observations.
'Were capital punishments reduced to the comparatively small number of cases in which they are often inflicted, it would become a much simpler operation to form a right judgment of their propriety or necessity. Another consideration of still greater moment presents itself on this point of the subject: Penal laws are sometimes called into activity. after long disuse, and in cases where their very existence may be unknown to the best informed part of the community; malicious prosecutors set them in motion; a mistaken administration of the law may apply them to purposes for which they were not intended, and which they are calculated more to defeat than to promote: such seems to have been the case of the person who, in 1814, at the assizes for Essex, was capitally convicted of the offence of cutting down trees, and who in spite of earnest application for mercy from the prosecutor, the committing magistrate, and the whole neighbourhood, was executed apparently because he was believed to be habitually engaged in other offences, for none of which however he had been convicted or tried. This case is not quoted as furnishing any charge against the humanity of the judge or of the advisers of the crown: they certainly acted according to the dictates of their judgment; but it is a case where the effect of punishment is sufficiently shewn by the evidence to be the reverse of exemplary, and it is hard to say, whether the general disuse of the capital punishment in this offence, or the single instance in which it has been carried into effect, suggests the strongest reasons for its abolition.'
We shall now quote the only evidence given on this subject before the Committee, that of Robert Torin, Esq. the committing magistrate. This gentleman says that William Potter (the man executed)
was a very bad character, and he owed a particular spite against a miller in the nighbourhood, who had had him committed for snaring hares. The miller had planted a young orchard of trees, which he had taken a great deal of care of; he had planted it about three or four years before, and one morning when he got up, he found all his trees had been cut down.- -How many trees-between sixty and seventy ?-A great number; he came to me as a magistrate to complain of the thing; I asked him if he suspected any particular person; he said he suspected Potter: I asked him if there were any prints of the feet; he said, yes. In consequence I granted him a warrant, and the man was brought before me; I made him pull off his shoes, and sent for the shoemaker who made the shoes; I had them compared with the
footsteps, and they agreed; the thing was brought home to him, and he was tried before Mr. Justice Heath, and convicted of the offence. -He received sentence of death?—Yes, which rather struck us all with surprise; the miller, the clergyman of the parish, and several of the inhabitants presented a petition, and I signed my name to it.- -What was the general character of this man?-He was a very notorious thief; he committed a vast number of petty thefts.Was he ever convicted of petty theft?—No, but he was known to be a thorough thief; he broke open several tills, and stole the money out. Had he ever been convicted or committed before?-No, not to my knowledge.Did he confess all the acts of petty theft you have mentioned?-He gave a list of them to Mr. Morgan.- -At what period were those confessions made?-After he was convicted; I believe the day after condemnation.Did the execution of this man excite a considerable feeling in the country?—A great many people were surprised at it; it was considered a case of extreme hardship, but which was palliated by the badness of his character.'-Report, pp. 87, 88.
Mr. Torin seems to be mistaken in saying that this man's confession took place after conviction; for the only extenuation which he mentions in his Letter to Lord Sidmouth, p. 88, is the ample confession which the culprit made soon after his commitment, and which was produced at his trial.' We may also add, that prosecution for this offence had not fallen altogether into disuse, as the Committee seem to suppose; for besides this indictment in 1814, the criminal records printed by the Committee, imperfect as they are, shew that another was preferred in 1757, p. 242, and another in 1780, p. 247; but as both prisoners were acquitted, it is impossible to conjecture if they had been convicted whether execution would have followed or not. Three other indictments under the Black Act are mentioned, two at p. 254 and one at 256, but as the particular offences under that statute for which the prisoners were indicted is not mentioned, it is impossible to ascertain whether they were for the cutting down of trees or not. With these corrections and additions, we request any of our readers who think the subject worth examining, to peruse carefully the Black Act as it stands in the Statute Book, Mr. Torin's evidence, and the facts we have produced from the records published by the Committee, and then let them judge for themselves whether there is a single statement relative to Potter's case contained in the paragraph quoted from the Report, which is strictly accurate, or which warrants the insinuation against the humanity or understanding of Mr. Justice Heath or Lord Sidmouth, which the Committee appear to us to have unfortunately conveyed in the very sentence in which they appear to disclaim it. That applications for mercy will be made from some quarter or other in favour of almost every individual convicted, we believe all who are connected with the administra
tion of justice are prepared to expect; but in the case in question we see nothing to blame in the manner in which these public servants performed their respective functions in the administration of the law. What conclusion ought to be drawn from the rare occurrence of any particular crime it is not easy to ascertain. There may either have been no disposition to commit the crime, or the punishment denounced may have been sufficient to prevent it. But whether the result be attributable to the one cause or the other, we cannot accede to a principle laid down at page 5 of the Report, and lately advanced in both Houses of Parliament as well as elsewhere, that if few or no punishments have taken place for a certain length of time for any particular offence, the punishment ought to be repealed as being no longer necessary. We do not deny that this reasoning is ingenious; but we certainly never met with any which it would be more dangerous practically to follow. When those to whom the task of legislation is committed have once determined an act to be a crime, and fixed that punishment which the peculiar circumstances of the country where it is to be enforced, in their judgment, require, we do not perceive why it should not be inflicted though it occur only once in a century. It is well known to those conversant with criminal law, that particular crimes become prevalent at distant and unequal intervals, in certain parts of the country, or among certain classes of society, in a manner perfectly inexplicable. What security have we that the houghing or maiming of cattle may not at some crisis be practised here as it was in Ireland during the last rebellion? So may the systematic destruction of growing timber. In fact, it was stated by Mr. Curwen in the House of Commons, in the end of the very last year (1819), that whole plantations had, a few days before the delivery of his speech, been cut down in the neighbourhood of Carlisle for pike shafts, by the misguided men who then sought to convulse the country. We never should consent to disarm justice of any of the terrors which properly belong to it, however long the exemplary conduct of persons of every rank and condition in the state may have permitted them to slumber. If this should ever happen, the consequence would be, that whenever any emergency arose we should see the legislature passing whole piles of acts of parliament at once, on the spur of the moment, and in a state of misapprehension, confusion, alarm, or exasperation. In our view of the matter, it accords better with the character and dignity of an enlightened people, to provide, with as much deliberation as human foresight will permit, for every accident or disease to which they are accessible, rather than to indulge the illusion that health and quietness will always last, and have the remedy to seek as well as administer when any disorder has actually overtaken them.
Our readers will now be able to judge for themselves of the propriety of the following observations which the Committee have prefixed to the list given at page 6 of their Report, of all the classes of crimes of which we have been speaking: Your Com'mittee (they say) have endeavoured to avoid all cases which seem to them to be on this ground disputable. From general caution, and a desire to avoid even the appearance of precipitation, they have postponed cases which seem to them to be liable to as little doubt of those to which they are about to advert.' It is very possible that, in the judgment of many sober-minded persons, these crimes may not be so aggravated as we are disposed to reckon them; but we are much mistaken if we have not at least shewn, that, instead of the repeal of them following as a matter of course as soon as proposed, which the Committee seem to expect, there is not one among them, the repeal of which would not trench so materially on the spirit and substance of English criminal law as to call for frequent and deliberate discussion. If the Committee propose to amend the criminal law, by the abolition of statutes which will be unanimously admitted to be unnecessary, they must confine themselves to such acts as Nos. 1, 2, 11 and 12 of the first class mentioned in their Report; to which may be added 1 Eliz. c. 2.; 23 Eliz. c. 1. § 5.; and 3 James I. c. 4. § 11, which impose severe penalties on persons not being dissenters who refuse to go to church, and which the 3d of William and Mary does not repeal; the 43d Eliz. c. 13. for the more peaceable government of Cumberland, Northumberland, Westmoreland and Durham; the 25 Hen. VIII. c. 13. imposing a penalty of 3s. 4d. for every sheep which any farmer should keep above 2000, and a like penalty for every week any farmer should occupy more than two tenements or holds; the i Hen. VII. c. 7. against unlawful hunting; and 5 and 6 Edw. VI. c. 4. by which every person convicted of 'drawing or smiting with a weapon in a church or churchyard' is to have one of his ears cut off, and if the person so of'fending have none ears whereby he should receive such punishment, that then he should be marked and burned in the cheek ' with a hot iron, having the letter F therein, whereby he may be 'known and taken for fraymaker and fighter.' It may be meet that these preposterous enactments should be erased from the statute book; but no material change would be produced in the criminal code, and we have no conception that it is to such unimportant alterations, but to others of a more effective nature, that the attention of the Committee is directed.
3. We come now to the 3d section of the Report, which relates to different sorts of larceny. The Committee set out with stating, at page 8, In the more disputable questions which relate to of
'fences of more frequent occurrence and more extensive mischief, your Committee will limit their present practical conclusions to 'those cases to which the evidence before then most distinctly ' refers.' Now, the only practical conclusion at which we perceive the Committee to have arrived is, to recommend the revival of Sir Samuel Romilly's bills for the repeal of the three following capital felonies: stealing in shops, &c. to the value of five shillings; in a dwelling-house to the value of forty shillings; and from vessels in navigable rivers to the same amount. But though this is the only practical conclusion announced at present, the greater part of the section consists, either of observations on other felonies now capital by the law of England, which are intended to have a practical effect hereafter, or of attempts to confirm those observations by such selections from the evidence as the Committee thought most applicable to their purpose. We shall confine our attention to the specific measures which the Committee have in this section recommended for adoption by the House of Commons, reserving entire the consideration of the other alterations alluded to in this section, until we come to discuss them in conjunction with the other changes in the criminal law which the Committee have in prospect.
The 10 and 11 of William III. c. 23. which make it a capital felony to steal to the amount of five shillings from a shop, warehouse, stable, or coach-house, and 12 Ann and 24 Geo. II. which make it capital to steal privately from a dwelling house or on board a vessel in a navigable river to the amount of forty shillings, decidedly appear to us to have been always too severe. Sir S. Romilly has said, in the fourth page of his pamphlet, that if we 'confine our observations to these larcenies, unaccompanied with any circumstance of aggravation, for which a capital punishment is appointed by law, such as stealing in shops, and stealing in dwelling-houses, and on board ships, property of the value men'tioned in the statutes, we shall find the proportion of those exe'cuted to those convicted reduced very far indeed below that even ' of one to twenty.' This statement was much below the truth. It appears from the Appendix to the Committee's Report, p. 141 and 139, that for the 7 years from 1812 to 1818 inclusive, the convictions in London and Middlesex, for larcenies from shops, dwelling-houses and vessels, amounted to 434; the number of executions only to 10, or 1 in every 43. It appears also from pages 132 and 128 of the Appendix, that the whole number of persons capitally convicted for larceny throughout England and Wales, from 1810 to 1818 inclusive, amounted to 1196, and the number executed to 18, or something less than 1 in 66, which result is still more disproportionate than that just mentioned. In these offences, therefore, it is clear that the text of the law can give no idea, to either