of Punishment Bill, for repealing the capital punishments imposed by 39 Eliz., 21 James I., 4 and 9 Geo. I., 5, 6, 26 and 27 Geo. II., and 22 and 24 Geo. III., which form the chief offences contained in the second class of those enumerated in the third section of the Committee's Report. As no notice was given of any of these bills being then brought into the House pro forma, in order that the principles or provisions of them might be discussed at a distant day, we conclude it was not intended by the mover that any of them should lie over for consideration till another season, but that they should all be forwarded into laws as speedily as possible. For reasons however with which we are not acquainted, it was found expedient to postpone the first three to another session. The acts repealed by the fourth, we have already given our reasons for believing to be unimportant, but such as ought no longer to find a place in our criminal code. The fifth, which raises the value stolen from a shop or warehouse from 5 shillings to £15 before the offence infers capital punishment, appears to us to be a material improvement upon the old law. Perhaps a clause might have been added, authorising the infliction of capital punishment where the criminal had been repeatedly convicted of acts of theft before. We could also have wished to see the judge's power of awarding transportation as a punishment a good deal limited, for of all offenders old thieves are the most unfit for being removed to a new settlement. The Capital Felonies Commutation of Punishment Bill may be said to be virtually postponed as well as the three bills first mentioned, as only 4 offences in it were suffered to remain out of the 11 whose punishment it proposed to commute, which were those relating to the unlawful carrying away of women, the helping to the recovery of stolen goods, a bankrupt's fraudulent concealment of his effects, and the destruction of certain sorts of works erected on canals and navigable rivers. The 7 main offences of which it would have commuted the punishment, every one of which we should deem important, were, after a considerable struggle, expunged from it in the House of Lords, which on this occasion again acted as a floodgate against the tide of legislation which is now rolling so impetuously through the House of Commons. The whole of the original clauses, however, with the exception of some conversation which occurred at its second or third reading, passed through that branch of the legislative without a single remark, and met with as little resistance in their progress to the upper House, as if they had been matters of course or supported by an overwhelming weight of reason and authority.

We had occasion, among some considerations which we lately offered on the state of the statute book, to advert to the facility with which laws are made. That any enactment of which the na

ture

ture is not well understood should be suffered to creep unperceived into the list of public laws, is in itself au evil of no mean magnitude; but it becomes still more alarming, when it is considered that it of necessity paves the way for the admission of others yet more questionable which may be prepared to follow. With no reverence whatever for the declamation or discussion which many speakers in our legislative assemblies waste upon the measures before them, we still feel that the public has a right, before any of its fundamental laws are altered, to be favoured with a succinct exposition of the reasons which may be urged for and against them. Though it be true, as Sir Samuel Romilly has implied at page 4 of his Observations on the Criminal Laws of England, that they do not form that regular, matured and well-digested system' which some have imagined, yet when a connected body of statutes have for a great length of time received the sanction of persons well qualified to pronounce upon them, and obtained the express or implied acquiescence of the great majority of those who are subject to their operation, we do not think it wise to stultify those by whom they were enacted, by a silent and rapid revocation of them. What the cause of the fact is we do not know, but it too often happens that unless a bill in dependence in the Commons touches the individual members, their friends or their party, or is expected to call forth an agreeable speech, or forms the theme of conversation in the clubs in St. James's Street, the discussion to which it gives rise is heard with impatience or not heard at all. In making this statement it is far from being our wish to detract from the dignity of an assembly we value so highly. We only announce a truth which is perceived by all, and more distinctly admitted by none than by the members of the House themselves. Our object is, as far as our circumscribed sphere and faculties will permit, to awaken a more just idea than we believe yet prevails of the extended mischief which this apparent negligence creates, and what is yet of greater importance, to produce a sincere conviction in the minds of those whom it most concerns, of the urgent necessity of correcting it. The House of Commons seems now to stand in a situation, in which much may be gained, or a good deal lost which will not easily be recovered. Unless means are adopted for securing to the dry but really important measures which are brought before the House their due share of attention and examination, we cannot see how the laws and business of the country can be prevented from being involved, at no distant period, in a state of confusion which it is painful to anticipate, and of which the consequences will only be fully developed when they have become irremediable.

2. The second and last general proposition intimated in the Report

Report is, that the punishment of death may hereafter be superseded by an improved system of transportation and imprisonment.

It is now somewhat more than half a century since Beccaria published his Essay on Crimes and Punishments, one of the earliest works by which the attention of the world was much drawn to criminal jurisprudence, and in which the necessity of the infliction of death, in any case whatever, was first distinctly called in question. This treatise contains many acute and just general observations, but applies chiefly to the codes of criminal law which at the date of its appearance were in force throughout the states of Italy; and its principal value, in the present day, must be admitted, even by its greatest admirers, to consist not so much in what the author has himself done, as in what he has taught others to do. His well-founded aversion to the cruelty which marked the administration of criminal justice in his own country seems to have driven him to an opposite extreme, and he now and then suffers language to escape him, which cannot fail to bring the whole of his doctrines into suspicion with those who reverence the foundations on which the good order of society has hitherto been supposed to rest. Such as his doctrines were, however, they were approved and followed by some of the most popular and powerful princes then reigning in Europe. The Grand Duke Leopold of Tuscany took the lead in the career of reform, and from the success which that sovereign says had attended his previous mitigation of the penal code of his dominions, he was induced, on the 30th of November, 1786, to issue that celebrated edict from Pisa, by which he proclaimed the total abolition of capital punishment throughout the states of Florence. In the preamble to the edict he expresses himself to the following effect:

Con la piu grande sodisfazione del nostro paterno cuore abbiamo finalmente riconosciuto che la mitigazione delle pene congiunta con la piu esatta vigilanza per prevenire le ree azioni, e mediante la celere spedizione dei processi, e la prontezza e sicurezza della pena dei veri delinquenti, in vece di accrescere il numero dei delitti, ha considerabilmente diminuiti i più communi, e resi quasi inauditi gli atroci, e quindi siamo venuto nella determinazione di non più lungamente differire la riforma della legislazione criminale, con la quale abolita per massima costante la pena di morte, come non necessaria per il fine propostosi dalla società nella punizione dei rei,' &c.

Whether crimes had really diminished to the extent here described may not be altogether certain, but there can be no doubt that Tuscany, under his administration, enjoyed a degree of tranquillity and prosperity, which will cause his name to be transmitted, as the good Leopold, to distant generations. But it was not to the changes effected by him in the penal code alone, that this

happy

happy state of things was owing. He at the same time essentially improved other branches of the law, the executive government, and commercial regulations; and when a number of simultaneous measures, whether they may ultimately prove wise or not, concur in the mean while to ameliorate the morals and condition of a country, it is difficult to determine what share of merit ought to be ascribed to each. Neither was the new system tried for a sufficient length of time in order to judge fairly of its efficacy. In ten years after the appearance of the edict the progress of the French arms disturbed, and soon afterwards occasioned that suspension of its operation which has ever since continued: and none who are acquainted with the slow results of any alteration in law or government will think this period sufficient to afford conclusive evidence of the success of so bold an experiment.

The

Leopold's brother, Joseph, was perhaps a still more indefatigable legislator than himself, and equally zealous in his endea vours to promote the mitigation of punishment to the same extent throughout the different states of his empire; but he was thwarted in his schemes by the nobles of Austria and Hungary, and instead of the total abolition of capital punishment, was only able to procure its extreme restriction. The penal code of the Imperial territories has been at least twice subsequently altered, and we have understood, from what we considered competent though not decisive authority, that the gaols are at this moment insufficient to contain the prisoners and convicts; and that the number of executions at Vienna is greater, in proportion to its size, than that which has for some years back taken place in London. Empress Catherine affected the same admiration for the new doctrines, and she also had the abolition of capital punishment publicly proclaimed; but whether the Autocrat of all the Russias at that time either invariably permitted or had it in her power to enforce a due execution of the letter of the law throughout her vast and partially civilized dominions, we believe there are no means of accurately ascertaining. We have always heard it stated, however, that this abolition was but an empty declaration, and that the knout without reserve was as certainly fatal to the criminal that suffered it, as the most avowed sentence of death could have proved. We are aware that the knout without reserve is now disused; but we have also heard that an entirely new criminal code for that country is in preparation, and though, till the time of publication, it must remain uncertain whether the ideas of Russian statesmen with regard to capital punishment have undergone any alteration since the reign of Catherine or not, the very circumstance of one complete code so speedily replacing another, would materially detract from the regard which ought to be paid to the principles on

which the first had been constructed. There has also, since the revolution, been a remarkable mitigation in the criminal law of France; but the feverish and convulsed state in which that kingdom has remained ever since the mitigation took place, precludes any certain inference from being drawn respecting its effects. From all we have been able to learn, and from the successive changes which the new system of law has undergone since its first promul gation, that country presents no facts or appearances which would induce one to prefer the new system to the old.

We have now enumerated the four mildest penal codes ever yet enacted; and, though we should wish to express ourselves respecting them with the caution which every one will do who has experienced the difficulty of obtaining exact information on such a subject, we think we may venture to affirm, that none of them taken singly, nor all of them put together, afford sufficient proof that the abolition of capital punishment has hitherto been fully and successfully tried.

It is also well worth while to consider what punishments can be substituted in those cases in which it has been suggested that death should no longer be inflicted. Unless we are mistaken, it is here the grand difficulty in criminal legislation presses. A numerous list of writers, of whom Bentham and Dumont may deservedly be placed at the head, have shewn by means of multiplied definitions, subdivisions, and illustrations, what the nature and comparative degrees of crimes and punishments are; that punishments ought to be exactly proportioned to the magnitude of crimes; and that those punishments are the most eligible which serve the most effectually to deter and reform while they inflict the least injury or produce the greatest amendment on the criminal. On these and collateral topics they frequently reason with great sagacity and penetration, but oftener we fear with a degree of speciousness which makes both them and their readers imagine themselves to be greater masters of criminal law than they really are. As soon as it becomes necessary to reduce their doctrines to practice, it is perceived that no such variety of punishments has been discovered as almost every one of these speculators presupposes; and even if it were, there is hardly a state existing, the whole wealth and wisdom of which would suffice to carry one of their theories into execution, although dedicated to that single object. The result consequently is, that the improved punishment which these theoretical writers recommend would almost invariably entail a heavy additional burthen on the community, while it is exceedingly doubtful whether its effects would not be worse, both on the public and the criminal, than that for which it is provided as a substitute. No better proof of this could be desired than that which Leopold, Joseph, Catherine, and their preceptor Beccaria, have left us. In section