Page images

the increase of capital punishment invariably produced a diminution of convictions in subsequent years, or had a diminution of capital punishment produced an increase of convictions, the point would have been as satisfactorily established as the nature of the case will well adinit. But a reference to the tables just quoted will shew that this result does not regularly bappen. We are aware that in this department of policy, there are a greater nuniber of circumstances to disturb the usual course of events than in almost any other. A distressed or agitated state of the country may have a tendency to increase crimes, though the terror occasioned by executions may greatly tend to reduce them; and on the contrary, the favourable state of all these may tend to diminish crimes, though the decrease of capital punishments would otherwise bave increased them. As we have no desire to suppress any facts which bear upon so interesting a point of controversy, we have thought it our duty to insert the preceding tables as we find them, whether they may ultimately prove favourable to our opinions or not, and to leave those who examine them at full liberty to judge of them for themselves. To us it appears that the result of these tables is, upon the whole, hostile to the principles adopted by the Comınittee on the Criminal Laws, and that a great mitigation in punishment, especially if continued for several years together, has so generally been followed by multiplication of crimes, as to afford a strong presumption that a connexion subsists between them. A marked instance of this seems to occur in the years 1746, 7, 8, and 9, when no executions took place. It was towards the latter part of this period Fielding published his pamphlet' on the late increase of robbers,' and accordingly we find that in 1750, when the course of lenity then adopted may be supposed to have become fully known to offenders, the number of convictions is double to that of the year before. In that year 9 were executed, and 8 in 1751, and the evil was again reduced. But by far the strongest confirmation of it, and indeed that upon which our opinion in this matter principally rests, is afforded by the experience of the last fifteen or twenty years. In 1805 the executions were to the convictions as 1 to 5, and in 1818 as I to 13, and in this short period the number of commitments and convictions has increased threefold. The Committee on Criminal Laws seem to have shewn satisfactorily, that this increase has not arisen from any temporary rigour on the part of prosecutors, nor do we think it can by any means be altogether accounted for from the circumstances of the times. The diminution of capital punishment appears to us a much more powerful cause than either; knowing, as criminals do, that this diminution has been produced by the reasoning and declamation which have during that time been so unremittingly directed against it. Mr. Harmer has remarked in his evidence, that thieves observe the sympathy of the public. • It seems (he says) to console them, and they appear less concerned • than those who witness their sentence.' It not only consoles but emboldens them. Most of those who are tried for crimes are not persons who pay any attention to the letter of the law, but the administration of it, and finding capital punishment getting out of vogue, they are induced by the removal of that check to persevere in evil themselves, and enabled to corrupt others. Of all persons we have ever seen, criminals are the most acute in discovering arguments in their own favour, and in turning to advantage the sentiments and observations of others indicative of pity for their situation. While we express great reluctance to withdraw old or desperate offenders from capital punishment, we hope we have let slip no expression which can be construed into an approbation of its inconsiderate exercise. In those cases in which we might wish severity to be displayed towards the few, we are conscious of being prompted by no motive but that of compassion to the many; being well persuaded that punishment may be mitigated to so great a degree, that thousands may deplore it as the cause of their imperceptible deviation from innocence. The abolition or extreme restriction of capital punishment may therefore have effects more painful and deplorable than those of capital punishment itself, and not the less real, because it is impossible to specify the manner and individual instances of its operation. The result of it in this country seems however in some measure capable of being made apparent. Coinmitments have increased from 4,605, and convictions from 2,783, at which they stood in 1805, to the enormous number of 13,567 and 8,958, respectively, at which they stood at the period of the last returns. So far then, as the experiment has yet proceeded, it is a more severe, and not a more mitigated administration of the Criminal Laws, which it seems to countenance.

III. The third and last subject into which we proposed to inquire, was the best method by which the Criminal Law may be inproved. Instead of adopting that plan of proceeding which the Connittee appear to have done, and introducing a number of amendments one after another, we submit with great deference, whether it would not be every way more advisable at once to attempt a consolidation of the whole system.

We are aware of the suspicion with which such a proposal cannot fail to be received; but we can assure those who may

be in

any degree alarmed by it, that we are no friends to unnecessary innovation, and have not offered the opinion now expressed without deliberation, or acceded to it without reluctance. In doing this, we are anxious however to guard ourselves against being supposed to entertain any propensity to the introduction of theoretical prinR 4

ciples ciples into any portion of our jurisprudence. We wish for no new materials to construct a fresh Penal Code, but only a more convenient distribution of the old ones. The criminal law of this country is now spread over so many volumes, and the enactments on the same subject are in many cases so numerous, complicated, redurdant and incongruous, that the time seems to have arrived when the legislature is called upon to make a strenuous effort to reduce it to a more intelligible and compact form. It must not be supposed, however, that such a measure is now broached for the first time. It is true indeed, that no serious step has ever yet been taken towards its accomplishment; but it is matter of historical record, that it was as distinctly contemplated 200 years ago as it can be at the present moment. Not to mention the appointment of Commissioners for the reformation of the canon law by 27 Hen. VIII. c. 15., and 3 & 4 Ed. VI. c. 11., it is stated by Lord Bacon, v. 2. p. 326. to have been announced by the chancellor in full parliament, during the 35 Eliz. that it was her Majesty's intention to amend the laws : and it appears by the Journals of the House of Lords of the 23d of July, 1610, that it was part of the claim of the House of Commons, in the treaty with James I. for the abolition of the Court of Wards, • That His Majesty be petitioned to appoint some to make a diligent inquiry of all the penal statutes of the realm, to the end that such as are obsolete and unprofitable may be repealed; and that • for the better ease and certainty of the subject, all such as are

profitable concerning one matter, may be reduced into one staitute.'

We shall add nothing to diminish the clearness, energy, and comprehensiveness of the expressions here employed. Whether the subject was at all revived during the next 100 years, we do not know. It appears by the Journals of the House of Commons, v. 22. p. 71, that a Committee was appointed to consider the laws in being with respect to the punishment of criminals, and how the same may be made more effectual,' and that another was appointed in 1770, (Journals, v. 33. p. 27,)ʻ to consider of the criminal laws;' but it would seem that the first had no effect, and it appears by the volume last quoted, that the second contented itself with recommending the repeal of four obsolete and unimportant enactments. But these ineffective intentions of the government are not the only circumstances which afford countenance to such a cousolidation as that which we have mentioned. It is further supported by the recorded and concurring opinions of Bacon, Coke and Hale -names which, considering the extent of their capacity, and experience in business, ought to have greater weight than those of any three lawyers that ever lived in England. For the sentiments of Lord Bacon, we refer to his Dedication, to Queen Elizabeth, of his Elements of the Common Law of England, and still more párticularly to the proposal made by him to James I toucbing the


compiling and amendment of the laws of England. This proposal extends to the law generally, but more especially to the penal part of it.

• This work,' he says, shining so in itself needs no taper. For the safety and convenience thereof, it is good to consider, and to answer, those objections or scruples which may arise or be made against this work.'

The two chief objections stated by him, are :

1. “That it is a thing needless, and that the law, as it now is, is in good estate comparable to any foreign law; and that it is not possible for the wit of man, in respect to the frailty thereof, to provide against the incertainties and evasions or omissions of the law.'

To which he immediately afterwards makes this reply:

• For the comparison with foreign laws, it is in vain to speak of it; for men will never agree about it. Our lawyers will maintain for our municipal laws; civilians, scholars, travellers, will be of the other opinion.'

2d objection, ' That it is a great innovation; and innovations are dangerous beyond foresight.'

To this he answers with that weight of thought and expression which so peculiarly belongs to him,

* All purgings and medicines, either in the civil or natural body, are innovations : so as that argument is a common place against all noble reformations. But the truth is, that this work ought not to be termed or held for any innovation in the suspected sense.

For those are the innovations which are quarrelled and spoken against, that concern the consciences, estates, and fortunes of particular persons; but this of general ordinance, pricketh not particulars, but passeth sine strepitu. Besides, it is on the favourable part; for it easeth, it presseth not: and lastly, it is rather matter of order and explanation, than of alteration.'

The opinion of Lord Coke in the Preface to his 4th Institute, is expressed in the following terms:

* As concerning the correcting of the common laws or ancient customs of England, may be applied all that hath been said concerning making of laws : only this add ; that it hath been an old rule in policy and law, that correctio legum est evitanda. And yet concerning certain of our penal statutes, to repeal many that time hath antiquated as unprofitable, and remain but as snares to entangle the subjects withal ; and to omit all those that be repealed, that none by them be deceived, as for example, concerning drapery or such like. To make one plain and perspicuous law, divided into articles, so as every subject may know what acts be in force, and what repealed, either by particular or general words, in part or in the whole, or what branches and parts abridged, what enlarged, what expounded; so as each man may clearly know what and how much of them is in force, and how to obey them, it were a necessary work, and worthy of singular commendation; which his Majesty, out of his great wisdom and care to the commonwealth, hath commanded to be done : for as they now stand, it will require great pains in reading over all, great attention in observing, and greater judgment in discerning, upon consideration of the whole, what the law is in any one particular point; but with this caution, that there be certain statutes concerning the administration of justice, that are in effect so woven into the common law, and so well approved by experience, as it will be no small danger to alter or change them; and herein, according to his royal commandment, (God willing) somewhat in due time shall be performed.' -He adds For bringing of the common laws into a better method, I doubt much of the fruit of that labour.'

hath laws

The last person to whom we alluded is Lord Hale, and for his judgment we refer our readers to his · Discourse on the Improvement of the Laws of England,' published in Hargrave's Collection of Juridical Tracts, which, though remaining in an unfinished state, well deserves a greater share of notice than has yet been paid to it. Those who have hitherto considered that exalted person merely as a dry practical lawyer and pious man, will there see him evincing a freedom from passion and prejudice, and a clearness and comprehensiveness of understanding, in no respect inferior to that of Bacon himself. More judicious maxims than the following, which occur at page 256, are no where to be met with.

• Therefore it is of great importance upon any alteration of the laws to be sure, 1. That the change be demonstrable to be for the better, and such as cannot introduce any considerable inconvenience in the other end of the wallet. 2. That the change, though most clearly for the better, be not in foundations or principles, but in such things as consist with the general frame and basis of the government or law. 3. That the change be gradual and not too much at once, or at least more than exigence of things requires.'

He afterwards makes some observations at page 264, which, though not pointed to the present subject, yet bear so strongly upon it, and are so applicable to the present times, that we cannot forbear to quote them.

Exemplary miscarriages in the late times of such as have undertaken reformation, both in matters civil and ecclesiastical, hath brought a disrepute upon the undertaking of any reformation in either: so that the very name of reformation and a reformer begins to be a stile or name of contempt and obloquy; so that men are as fearful to be under the reputation of a reformer of the law, as they would be of the name of knave, or fool, or hypocrite. And upon these and the like accounts it fares with the law and the sages thereof, as to the point of reformation of the law, as it did with the present age and the virtuosi of Parnassus in Bocaline. They dare not meddle with it, but let it live as long and as well as it can in the state they find it. Only to save their credit upon such occasions, they meddle with some little inconsiderable things, as they set the price upon turnips and carrot seed, but nothing is dared to be done of use and importance.'-And at page 270, ' All that which I contend for in the first and second chapter is, not to render

« PreviousContinue »