« PreviousContinue »
of the most remote and, by his own confession, most disorderly districts of Ireland.
The next witnesses in order are the 4 merchants and 8 bankers, who were principally examined with respect to the punishment of forgery; the observations which occurred to us relative to their testimony have been given in considering the section of the Report exclusively confined to that subject, and we have nothing to add to what is there stated.
The last 19 witnesses consist of Mr. Baker, engineer at the Tower, and 18 tradesmen, viz. Josiah Condar, bookseller; Joseph Curtis, currier; Wendover Fry, type founder; John Gaun, general merchant and boot and shoe manufacturer; Richard Taylor, printer; James Soaper, profession not mentioned; Stephen Curtis, leather manufacturer; Ebenezer Johnson, ironmonger; Philip Jacob, ironmonger and stationer; Thomas Lewis, retired merchant; James Jennings, grocer; Samuel Garett, insurance broker; Frederick and William Thornbill, hardwaremen; William Collins, glass manufacturer; and Sir Richard Phillips, bookseller and sta
What peculiarly qualified Mr. Baker to be a witness on this occasion, neither his profession nor his residence affords any clue to discover; but his evidence corresponds entirely with that of the other witnesses, whose names have just been enumerated. They mention a variety of instances in which they and their friends have refused to prosecute, on account of the capital punishment attendant on conviction, especially in cases of forgery and in stealing from shops and dwelling houses. Some of them say that these sentiments are rapidly diffusing themselves; others state their own general opinions respecting criminal law; and all of them concur in recommending either the extreme restriction or total abolition of capital punishment. Into a minute examination of the history of private individuals it is always ungracious and rarely justifiable to enter; but as these witnesses, not one of whom we have ever seen or known, have been brought into a situation, in which their declarations may materially influence important legislative measures, it is impossible not to feel that the public has now gained a right to inquire into their life and reputation, which it did not before posSome of them we believe to be persons of unquestionable respectability; but from the tone and language of the testimony which has been given by others, it is impossible not to entertain suspicion, that they are not the people to whom it was desirable to resort on such an occasion, and that they are either weak or disingenuous in a more than ordinary degree. In illustration of this observation, it was at one time our intention to have brought forward two of these witnesses as examples; by quoting in the first inP Q
stance part of a published speech of the late Sir Vicary Gibbs, when Attorney General, delivered in the course of a trial, in which he designated one of them who appeared as a witness, and perhaps with reason, as the weakest man that ever walked upon the face of the earth without a keeper!' and we might afterwards have given a detail of the circumstances attending a verdict of condemnation given in the Court of Exchequer a few years ago, which followed the seizure of a considerable quantity of property belonging to another. As both of the proceedings now referred to occurred in courts of justice, we might legitimately have given to them any degree of publicity we thought proper. But as it is contrary to our wish that any comment, or opinion introduced in the course of this discussion, should receive any assistance by the exposure of individuals to derision or reproach, beyond what our chain of reasoning absolutely required, however completely it may have been in our power to do so, or however justly they may have deserved it, we now think it better to abstain from specifying any thing more than the esistence of the circumstances to which we have just adverted. To all those who are really interested in this inquiry, the hints we have now thrown out will make the argument we should wish to draw from them intelligible, and we do not desire to go one step farther. The case last mentioned, however, appears to us, after the most scrupulous inquiry we have been able to make and the most favourable construction we have been able to put upon it, to be one of so grave a nature and to bear so materially upon the value of the testimony of the individual whose property was seized, that we could not entirely forbear from alluding to it.
There can be no doubt, that after all the pains Committees can, bestow in selecting individuals fit to appear and give evidence at their bar, they must often be egregiously mistaken. We only require, that with regard to the point in deliberation they should exercise unremitting and peculiar vigilance, which in justice both to respectable witnesses and the country they are bound to do. It is due to the witnesses themselves, in order that such of them as are unquestionably entitled to consideration, both in respect of character and understanding, may in no shape be coupled or have their names mentioned in the same breath with persons who possess no claims whatever to attention. It is also due to the country, in order that the bulk of the community, who naturally feel considerable deference for the opinions of those who have had the distinction of being examined before a Committee, should not incautiously be led to give credit to those to whom it is not truly due. The public will scarcely believe what whining language it is possible, in the present times, for a witness to
dole out in the course of his depositition, and how dexterously he can adapt it to its end, by the discrimination, as well as delicacy, of the moral feelings by which it appears to be dictated, at the very moment that proceedings stand recorded against him, which, if generally known, would not only diminish the value of his testimony as a witness, but, in all probability, cause his services, in that capacity, to be dispensed with altogether. Nor is it merely the common classes that may thus be led into error. Without alluding to the debates which have recently taken place on this subject, in either House of Parliament, we think we are justified in saying, that statesmen of the highest eminence in the country have thus, on some occasions, been led to rest no small part of their argument on a support, by no means worthy of the reliance placed upon it. Before quitting this part of the subject, we may also be allowed to add, that several persons belonging to the class of witnesses last mentioned, announce their opinions with a degree of self-sufficiency more befitting advisers of the Committee than witnesses before it; and seem to reckon themselves as well qualified to decide upon points of criminal jurisprudence as any members of the legislature. Those who inspect the evidence will judge whether the allegation we have now made is well founded or not, but if it is, it seriously concerns the public that no further encouragement should on any occasion be given to such a misconception. We hope we shall not be misunderstood. The objection we make to individuals in their sphere of life discharging such a function as that which they have here shewn a disposition to arrogate, by no means arises from its being a novelty, or because it might interfere with the privileges of those who count themselves their betters, but because we verily believe they cannot discharge it well or wisely either for themselves or the public. We mean no disparagement to any class of our fellow subjects; but we believe it to be irrevocably decreed, that few of those whose education and pursuits have been of a limited nature should be able to take as comprehensive a view of any system of law and policy as those who have been early trained to the task; and any attempt of one order of society to usurp the functions of another, can only end in the confusion and misgovernment of the state in which it is made.
We have now given as brief and correct an outline as we can of the contents of the evidence adduced before the Committee; and whether we consider the number, capacity, or situation in life of those who gave it, our expectations have been greatly disappointed. Only one ex-judge has been examined, and we do not think his answers can fairly be construed into an approval of the principal changes meditated. It is assumed however by Mr. Montagu, that Lord Bacon, Lord Coke, Sir Thomas More, and Erasmus, are all favourable to the views of the Committee; and the opinion of Sir
William Grant is said, in the beginning of the Report, to be to the same purpose. It must be admitted that no names could have been selected to which more universal deference will be paid. But after making considerable inquiry, we have not been able to discover any authority for the sentiments which have been ascribed to them. General observations, more or less strong, against injudicious severity of punishment they certainly have made, and nobody will dispute their soundness; but we can hardly think that any of them as discreet men, and four of them possessing the characteristic caution of lawyers, ever meant such expressions to amount to an approval of a vast specific change which there is no proof they ever had in contemplation. The Committee say they have not thought proper to call for the opinions of the judges who now fill the bench, as it appeared unbecoming and inconvenient that 'those whose office it is to execute the Criminal Law should be 'called on to give an opinion whether it ought to be altered.' This, if sincere, appears to us to be mistaken delicacy. Their opinions might have been received in the manner most agreeable and respectful to themselves; and as to its being unbecoming or inconvenient for those who execute the law to give an opinion whether it ought to be altered, all who have any acquaintance with courts either of common law or equity must frequently have heard judges, in distinct terms, express a wish for the alteration or abrogation of laws which they felt themselves bound to execute; and though they had never done so in words, it cannot be concealed that they virtually do so by their practice. A judge on the circuit, who rescues a criminal from the gripe of a penal statute, may, and frequently does, give the world as distinctly to understand what opinions he entertains of it, as he could have done by the most formal declaration. By declining to consult the judges, it appears to us that the Committee have deprived themselves of the assistance of those who, unless they are unworthy to occupy the distinguished situation which they hold, are peculiarly qualified to instruct them.
We should also wish that the Committee had called in the aid of a greater number of lawyers, and especially of those conversant with the practice of criminal courts. We know it is a common objection made to lawyers, that they in general set out with narrow views of law, which practice afterwards only renders more contracted. The objection is perhaps carried farther than the truth will warrant; but, even if it were just, there is no fear that any opinions they might utter would carry greater weight than belonged of right to the reasons by which they might be supported. One benefit would certainly be derived from them. The very prejudices they are presumed to have contracted would render them more acute in detecting the difficulties attending any alteration of the
old system; and circumspect legislators have always deemed an exact knowledge of the difficulties which stand in the way of reforma. tion, one of the most effectual steps towards its attainment. Besides these, we should also wish to have known the sentiments of a variety of persons of all descriptions, both in town and country, who are likely to be affected by the great change in criminal law now in contemplation. Instead of this, there is not a single English gentleman, clergyman, magistrate, yeoman, occupier of land, or shareholder in any bridge, canal, or mining company, who has either appeared or been sought for. The only effective support on which the framers of the Report can rely, is derived from 8 bankers, 4 merchants, 18 tradesmen and shopkeepers, 1 equity lawyer, retired police magistrate, I engineer in the Tower, i Oid Bailey solicitor, and Mr. Martin, member for the county of Galway. On so slender a body of evidence as this, and so selected, we submit it to be premature to conclude what the general sentiments of the people of England on the different parts of the present criminal law really are; and in the last page of their Report the Committee intimate that they mean to add no more.
Nor have they. No fewer than 6 bills were in the course of the month of May, 1820, introduced into the House of Commons by Sir James Macintosh, for effecting all the alterations in the criminal law which the Committee recommended. The first of them was, for repealing the capital punishment now incurred by those who utter forged instruments knowing them to be forged, as well as those who are guilty of the crime of forgery itself, excepting however from its operation such persons as might forge promissory notes of the Bank of England, or as had been convicted at least once before of uttering them. The second, was for repealing so much of the 12th of Anne as takes away the benefit of clergy from persons stealing to the amount of 40 shillings and upwards in any dwelling-house or out-house thereunto belonging. The third, for repealing the 24 Geo. III. which takes away the benefit of clergy from persons stealing to the amount of 40 shillings upon any navigable river. The fourth, for repealing the 2d of Philip and Mary against Egyptians remaining within the kingdom one month; the 18 of Charles II. and 31 Geo. II. against notorious thieves in Cumberland and Westmoreland; the 9 Geo. I. against being found disguised within the mint, and 9 Geo. II. against the injuring of Westminster bridge. The fifth, for repealing the 10 and 11 William III. so far as it takes away the benefit of clergy from persons privately stealing in any shop, warehouse, coach-house, or stable, under £15, and for making such offence punishable by transportation for at least 7 years, or imprisonment for not more than that term: and the sixth, called the Capital Felonies Commutation