UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 AN 
 
 INQUIRY 
 
 INTO 
 
 THE PRESENT STATE 
 
 OF TUK 
 
 STATUTE AND CRIMINAL LAW 
 
 OF 
 
 ' ENGLAND 
 
 1}Y 
 
 JOHN MILLER, Esq. 
 
 OF Lincoln's inn. 
 
 LONDON: 
 
 JOHN MURRAY, ALBEMARLE STREET. 
 
 1822.
 
 
 London i'rjiilcd liy C. Rcworili, 
 ricll Y.iril. Tciiii.lo liiii.
 
 ft 
 
 PREFACE 
 
 The first of the following papers appear- 
 ed in the Forty -third, and the second in the 
 Forty-eighth number of the Quarterly Re- 
 view. One was published in September, 
 1819, and the other in December, 1820. 
 Both of them, and especially the last, have 
 been considerably altered and enlarged. 
 
 Whether it was desirable to print them 
 in a separate form it is not my province to 
 determine. They may have been judged 
 of with indulo;ence when olanced over in a 
 hurried manner, in the midst of others, 
 though unfit to attract any degree of atten- 
 tion singly. Whatever opinion may be 
 formed of the propriety of again laying 
 them before the world, I hope no blame 
 will be attached to the motives by which I 
 have been actuated. The topics which are 
 
 a 2
 
 IV PREFACE. 
 
 brought under discussion can on no occa- 
 sion cease to be interesting, but happen to 
 be more than usually so in this country 
 and in the present times. Though the 
 truth of this is generally admitted, it is not 
 yet sufficiently felt. It is long before those 
 who influence legislative measures seriously 
 begin to think on any subject, and longer 
 before they can be brought to act. It is 
 the object of the following pages to renew 
 an appeal to them, in a case in which those 
 who superintend pubhc affairs will in some 
 Avay or otlier be called upon to deliberate 
 and determine. 
 
 Law Reports have gone on increasing 
 with accelerating rapidity since the follow- 
 ing remarks upon them were originally 
 written, and all the inconvenience and mis- 
 chief resulting from them has proportion- 
 ably augmented, without the least endea- 
 vour having been made to effect a remedy. 
 The acts of parliament annually passed 
 continue as numerous and slovenly as they 
 have for some time been, but a disposition 
 to consolidation is now beginning to ma-
 
 PREFACE. V 
 
 nifest itself, which one would wish to see 
 exerted upon every branch of statute law, 
 to which it can prudently be extended. 
 
 Criminal Law also requires to be further 
 and more dispassionately examined. As 
 far as regards the construction and ma- 
 nagement of prisons, general opinion has 
 already undergone a change. It is at last 
 perceived, that indulgence to prisoners had 
 been carried too far, and that crimes were 
 incontestibly increased by the means which 
 were taken to reduce them. It is a ques- 
 tion of still greater moment, Avhether the 
 same erroneous opinions lately entertained 
 with respect to them, may not still prevail 
 in other topics connected with the penal 
 code. Thouoh I listened to Mr. Buxton's 
 speech in the House of Commons, on the 
 23d day of May, 1821, with that delight 
 which none who heard it could fail to re- 
 ceive from one of the most powerful and 
 eloquent speeches ever addressed to a deli- 
 berative assembly in favour of extreme 
 mitigation of punishment, I am convinced 
 he and his friends are too sanguine and
 
 VI TREFACE. 
 
 enthusiastic, and that it will ultimately be 
 found, that the kindness and compassion 
 of their hearts has controlled the excellence 
 of their understandings. 
 
 To the two papers formerly published, I 
 should have wished to add a third, upon 
 the principles and practice according to 
 which the law of England is administered 
 in courts of justice, more especially in those 
 of equity. This I have been unable to 
 accomplish. The inquiry is for various 
 reasons so difficult and delicate, that it re- 
 quires much consideration. Should time 
 and opportunity serve for arranging the 
 facts and observations I have collected, I 
 may hereafter be induced to lay them be- 
 fore the public, unless some person better 
 qualified should think proper to take up 
 the subject.
 
 CONTENTS. 
 
 On the Statute Law and Law Reports 
 On the Criminal Law of England . . . 
 
 Page 
 
 . I 
 
 • 87
 
 ON 
 
 THE STATUTE LAW 
 
 AND 
 
 LAW REPORTS. 
 
 The Laws of England are chiefly composed of 
 Acts of Parliament, and the Judgments pro- 
 nounced by Courts of Justice in causes which 
 are brought before them. The power of acts 
 of parliament to make new laws, or alter old 
 ones, is universally acknowledged ; and it is 
 known to those who are conversant with judi- 
 cial proceedings, that a consistent train of de- 
 cided cases soon acquires, with respect to many 
 important matters, a degree of force and autho- 
 rity little inferior to that of enactments of the 
 legislature. It is desirable, that the rules which 
 spring from either of these sources should, for
 
 2 ON THE STATUTE LAW 
 
 the sake of all who are amenable to their juris- 
 diction, be sound, clear, and compendious. 
 With a view to ascertain how far these epithets 
 can, at present, be applied to them with pro- 
 priety, it is the purpose of the following obser- 
 vations to inquire into the magnitude which the 
 collections of Acts of Parliament and Law 
 Reports have already reached ; to examine the 
 causes of that increase; and point out the con- 
 sequences which will follow unless the evil can 
 in some way or other be arrested. To en- 
 deavour to confer upon the subject adventitious 
 interest or consequence, would neither be wise 
 nor becoming. Possessed in itself of few or no 
 qualities calculated to attract or secure obser- 
 vation, it may long bear with inattention, but 
 will not submit to be always and altogether neg- 
 lected. It is too intimately connected with the 
 security and enjoyment of life and property, ever 
 to cease to be a matter of general concernment 
 in a free state ; and through all the obstacles 
 which matters of a more imposing or amusing 
 nature may throw in the way, will silently and 
 effectually vindicate its own importance. 
 
 The first point into which it has been pro- 
 posed to inquire, is the size which Acts of Par- 
 liament and Law Reports have already reached. 
 , No maxim in jurisprudence is better esta-
 
 AND LA^7 REPORTC. 
 
 blished than this, that every state within the 
 limits of its own territory is entitled to exact, 
 and its subjects are bound to yield obedience to 
 all its laws. Unless this principle were ad- 
 mitted, the complete administration of justice 
 could not be secured, nor the good order of 
 society established and maintained. This right 
 on the part of the rulers, and obligation on the 
 part of the people, rests upon a presumption, 
 that the legislative authority in the state has 
 made the laws so clear and public, that every 
 member of the community either knows them, 
 or must be culpably negligent if he does not. 
 
 * Leges sacratissimae,' says the Roman law, 
 
 * quae constringunt hominum vitas intelligi ab 
 
 * omnibus debent, ut universi, praescripto earum 
 
 * manifestius cognito, vel inhibita declinent vel 
 *permissa sectentur.' — Cod. lib. i. Tit. 14. §9. 
 Under no form of government however, what- 
 ever may have been the simplification of the 
 laws and the intelligence of the people, is this 
 presumption justified by the fact. In the ear- 
 liest stage of regular government, all the laws 
 are never known to every one who is amenable to 
 their jurisdiction. As civilization advances, and 
 trade and wealth increase, the public and pri- 
 vate relations of the different members of so- 
 ciety multiply, and laws necessarily become more 
 
 b2
 
 4 ON THE STATUTE LAW 
 
 numerous. At last, the rights and interests 
 introduced or recognized by law, become so 
 various and complicated, that to understand the 
 whole or even a branch of the jurisprudence of 
 any particular state, proves the business of a 
 laborious life ; and no skill or industry can then 
 mould it into such a form as to make a thorough 
 knowledge of every branch of it attainable even 
 by persons of liberal education and pursuits. 
 That we cannot however do all we wish is no 
 reason why we should not accomplish all we 
 can ; and when the accumulated penalties, re- 
 strictions, rules, and regulations, respecting life 
 and property, which are created by decisions 
 and acts of parliament, are duly weighed, it must 
 surely in fairness be admitted, that to give to our 
 laws all the improvement and publicity which in- 
 creased knowledge and experience can suggest, 
 is not a favour which the government of a coun- 
 try may confer or withhold at pleasure, but one 
 of the most urgent and sacred duties which it 
 is called upon to discharge. 
 
 It is to be lamented that so few attempts of 
 this kind have hitherto been made in this coun- 
 try, and it is difficult to be accounted for other- 
 wise than by supposing that the extreme num- 
 ber of technical terms and expressions which 
 occur in the law of England, and the artificial
 
 AND LAW RK PORTS. & 
 
 form into which almost every part of it has been 
 thrown, have prevented it from becoming so 
 generally an object of attention, as among an 
 enlightened people peculiarly jealous of their 
 rights and privileges we should expect to find 
 it. This observation is far from being intended 
 to convey any wish that it should become a 
 prevailing habit for gentlemen to meddle too 
 much with law or legislation : all that is meant is 
 this, that if a succession of men of cultivated and 
 comprehensive minds, who are not lawyers by 
 profession, and who now fill seats in either House 
 of Parliament, or are hereafter likely to do so, 
 had made themselves more intimately ac- 
 quainted with the details, as well as principles 
 of our civil and criminal code, and had subjected 
 every branch of it to frequent and dispassionate 
 examination, it would have been highly honour- 
 able to themselves and beneficial to the nation. 
 As an instance of the sort of knowledge and 
 exertion, for the increase of which a desire is 
 here expressed, and of the advantages which 
 would have resulted from its prevalence, we 
 refer to Earl Grey's Speech on Lord Sidmouth's 
 Circular Letter, in the House of Lords, in 1817, 
 which affords a striking example of the suc- 
 cess with which an acute mind, not regularly 
 trained to the study of the law, may prosecute
 
 G ox THE STATUTE LAW 
 
 the investigation of some of its most abstract 
 doctrines. 
 
 If it is imagined that without any interest in 
 the state of the law being manifested by the 
 nation at large, the executive government for 
 the time being, or those who are concerned in 
 the administration of justice, will spontaneously 
 rectify or supply whatever is erroneous or de- 
 fective in our jurisprudence, there never was a 
 more mistaken notion. The slightest historical 
 retrospect will show how rarely any point of 
 general law has been taken up within the walls 
 of parliament, unless the attention of the public 
 has been previously directed to it from without. 
 The officers of the crown seldom introduce any 
 bills except such as are called for in the common 
 course of business, or on the spur of the occa- 
 sion. Instructions for these are usually sent in 
 a hurry either to the solicitor of that particular 
 department of the executive government under 
 whose cognizance they are supposed naturally 
 to fall, or to the person usually employed by 
 government in preparing acts of parliament, by 
 whom they are hastily thrown into form without 
 sufficiently attending to the operation or connec- 
 tion of the clauses which compose them. With 
 regard to those who are engaged in the admi- 
 nistration of justice, however singular it may
 
 AXJJ LAW REPORTS. 
 
 seem, experience has amply proved that they are 
 among the last persons from whom any ameliora- 
 tion of the law can be expected. From the hour 
 of their appointment, the judges are too much oc- 
 cupied with the execution of the law as it is, to be 
 able to devote much consideration to what in their 
 judgment it ought to be ; and, with ad vancinglife, 
 they contract an increasing fondness for forms and 
 practice with which they have become familiar, 
 and a dislike to any alteration of them. Those 
 on the other hand, who have attained to great 
 eminence at the bar, are obliged to submit to a 
 degree of labour even more severe than that of 
 the judges, and tending still more to disqualify 
 them for suggesting any legislative i-mprovc- 
 ment. Their whole powers are exhausted in 
 comprehending minute facts, or in endeavours 
 to secure the success of the party for whose 
 benefit they are engaged ; and to suppose that 
 under such circumstances they can bestow 
 much reflection on the means by \vhich law and 
 equity might be more expeditiously or effec- 
 tually administered, is almost the same thing as 
 to expect that the human understanding should 
 be capable of contraction and enlargement at the 
 same moment. Even the kind as well as degree 
 of labour which they undergo is unfavourable to 
 any proposal of amelioration. The bulk of legal
 
 0\ THE STATUTE LAW 
 
 practitioners never extend their views beyond 
 the mechanical functions they are called upon to 
 perform; and remain strangers to the inade- 
 quacy of any of our judicial establishments to 
 answ^er the ends for which they were instituted, 
 until a desire for sweeping reform has been 
 loudlyand generally expressed, of which increas- 
 ing symptoms are in various quarters making 
 their appearance. It is to avert any such extre- 
 mity as this, and to supersede the necessity of any 
 great and instantaneous change in the substance 
 or administration of our laws, that the attention 
 of the public is now solicited to their present 
 size and condition, from a firm conviction that 
 a remedy of some sort or other must at no dis- 
 tant period be applied, and that the longer it is 
 delayed it will only be the more violent and its 
 efficacy the more doubtful. 
 
 As this inquiry is intended to apply solely to 
 the present state of Reports and Acts of Par- 
 liament, such remarks shall now be offered on 
 each of these heads as the attention which 
 has been paid to them affords the means of sug- 
 gesting, beginning with the Reports of adjudged 
 Cases in Courts of Law and Equity. 
 
 All men, who are not blinded by confidence 
 or vanity, will naturally wish that some record 
 should be preserved of what those who are dis-
 
 AND LAW KEPOHTS. » 
 
 tinguished for wisdom and experience have said 
 or done in cases similar to those in which they 
 themselves may be called upon to act or delibe- 
 rate. This species of authority is of peculiar 
 importance in questions of law, where intuitive 
 genius and unassisted strength of understanding 
 are of less use than in mostother sciences, and its 
 value must be greatly enhanced where the deci- 
 sions reported have been given by judges of 
 exalted reputation, and whose minds have been 
 accustomed to point out the distinctions and 
 arrange the conflicting facts and doctrines, which 
 perplex the cases brought into courts of justice. 
 If due allowance had been always made for the 
 arduous duty which must necessarily devolve 
 upon judges, the uncertainty of the law would 
 have less frequently become the subject of ridi- 
 cule and reproach. It is not in points of easy 
 solution that uncertainty usually prevails, or 
 that the assistance of the judge is called for, 
 but in cases where it is impossible to avoid 
 pronouncing sentence in favour of one party 
 and against another, and yet where the merits 
 pf the case and the rules of law are so equally 
 balanced, that it ought not to be matter of 
 surprise if men of the greatest natural and 
 acquired endowments should often arrive at 
 opposite conclusions. Yet even in such in- 
 stances, the comparison of reports of cases, in
 
 10 ON THE STATUTE LAW 
 
 which judges have drawn opposite inferences 
 from the same premises, is of important service 
 in advancing justice, and promoting uniformity 
 of decision. An opportunity is afforded of dis- 
 covering at what point of the deduction the first 
 false step was taken, or how undue weight came 
 to be attributed to any particular legal maxim 
 or equitable consideration. A similar error is 
 therefore more likely to be avoided in time to 
 come, and inconsistency in j udicial determination 
 to be less remarkable than if no such friendly 
 light existed. If it ever was fit that the solemn 
 determinations of courts of justice should be 
 recorded for the instruction and guidance of 
 future judges and advocates, it has been pe- 
 culiarly so in hiter times. Without detracting 
 from the merit of those who flourished in ante- 
 cedent periods, it may safely be affirmed that 
 the judgments pronounced in our different courts 
 of law and equity, within the last sixty or seventy 
 years, have never been surpassed either in this 
 or any other country, for exact knowledge of 
 the facts of the case which they display, their 
 comprehensive views of policy, the soundness 
 of the legal principles on which they proceed, 
 or the firmness of every link which is to be 
 found throughout the chain of the deduction. If 
 it should happen that there are just grounds for 
 suspecting the wisdom of an acknowledged rule
 
 AXD LAW KEI'OllTS. .^ I 
 
 of law, or the assumption of a particular branch 
 of jurisdiction, it will seldom be found, that any 
 countenance is afforded by later judges to those 
 of their predecessors by whom the first error 
 in such cases was committed ; and not unfre- 
 quently have they, in distinct terms, expressed 
 their disapprobation of a precedent, which at 
 the same time they did not feel themselves 
 authorized to overturn. 
 
 It will not, therefore, be supposed, that any 
 disposition is entertained to undervalue Reports, 
 when published under reasonable limitations 
 with respect to number, length, and subject. It 
 is only when carried to excess that they be- 
 come liable to censure ; and that such excess 
 exists at present, few who are acquainted 
 with them will be disposed to call in cjues- 
 tion. In order to judge of their present size, 
 compared with what it was about two centuries 
 ago, take the following passage which occurs in 
 Lord Coke's preface to his Fourth Reports : ' To 
 
 * the former reports you may add the exquisite 
 
 * and elaborate commentaries of Master Plow- 
 ' den, a grave man, and singularly well learned ; 
 
 * and the summary and fruitful observations of 
 
 * that famous, and most revered judge, Sir J. 
 
 * Dyer, Kt. late Chief .lustice of the Common 
 ' Pleas, and mine own simple labours : then
 
 12 ON THE STATUTE LAW 
 
 * have you fifteen books or treatises, and as 
 
 * many of the reports, besides the abridgments 
 ' of the common laws ; for I speak, not of the 
 
 * Acts and Statutes of Parliaments, of which 
 
 * there be divers great volumes.' So that in 
 Lord Coke's time, about thirty volumes formed a 
 sufficient stock for a lawyer's library, with which, 
 if he was tolerably acquainted, it is to be pre- 
 sumed that he was qualified for practice. In the 
 present day, Reports alone amount to upwards 
 of 200 volumes, exclusive of those which relate 
 to Election, Admiralty, and Ecclesiastical law ; 
 — a mass which no well employed lawyer can 
 undertake to read, without pretending to digest 
 it. But this is not all. The rapidity with which 
 they are progressively increasing, is an evil 
 of a more alarming nature than even the 
 bulk to which they have attained. Those pe- 
 riodically published, are Swanston's Cases in 
 Chancery, Wilson's in Chancery, Maddock's 
 in the Vice Chancellor's Court, Barnewall and 
 Alderson s in King's Bench, Dow's in the House 
 of Lords, Daniell's on the Equity side of Ex- 
 chequer, Buck's in Bankruptcy, Ball and 
 Beatty's in Chancery in Ireland, Moore's in 
 Common Pleas, Price's in Exchequer, Taunton's 
 in Common Pleas; Starkie's at Nisi Prius in 
 King's Bench and Common Pleas, Holt's at
 
 AND LAW REPORTS. 1-3- 
 
 Nisi Prius in Common Pleas ; and to complete 
 this muster-roll of names, Chitty's Points of 
 Practice in King's Bench, besides Daniell and 
 Dodson's in the Admiralty, and Philiimore's in 
 the Ecclesiastical Court. How much faster 
 they may increase hereafter, no one can cal- 
 culate, but even now, they amount altogether 
 to 8 volumes a year, at which rate, they 
 will make IGO more in the course of the 
 next twenty years, and will swell to 800 within 
 the century. That such an accumulation can 
 go on for an indefinite length of time, is im- 
 possible. Either the evil must speedily and 
 effectually be checked, or long before it has 
 attained the heio-ht above mentioned, a Disrest 
 will be deemed indispensable, and another 
 Tribcnian must be selected to superintend its 
 execution. 
 
 To produce such endless ranks of Reports, 
 various causes have contributed. Lord Coke tells 
 us, that from the time of Edward III. to Henry VII. 
 
 * the kings of this realm did select four discreet 
 ' and learned professors of the law to report 
 ' the judgments and opinions of the reverend 
 
 * judges, as well for resolving of such doubts 
 ' and questions, wherein there was diversity of 
 ' opinion, as to fix the genuine sense and con- 
 
 * struction of such statutes and acts of Parlia-
 
 14 ON THE STATUTE LAW 
 
 * ment as were from time to time enacted.' 
 When this selection was discontinued, Plow- 
 den, Dyer, Coke, Raymond, and Croke, who 
 supplied their place, and published lavishly 
 enough perhaps for their times, were men of 
 high rank and reputation, who did not print for 
 emolument, but from a wish to perpetuate their 
 name, or benefit a profession to which they were 
 warmly attached. This character reporters have 
 now lost, and the practice of reporting is re- 
 sorted to for the purpose of obtaining experi- 
 ence, instead of communicating it; as a source 
 of emolument ; or an introduction to practice. 
 For the attainment of these ends, it is necessary 
 to keep themselves as much in the eyes of the 
 world as possible ; and cases at Nisi Prius, which 
 never ought to have been received as authority 
 at all, unimportant matters of practice, points 
 perfectly settled, and speeches of counsel at 
 full length, are detailed as laboriously as solemn 
 determinations of the judges on the most 
 important questions. In fact their own inte- 
 rest, or that of their booksellers, induces the 
 Reporters of the present day, instead of print- 
 ing as little as they can, to print as much as the 
 public will receive. It ought, at the same time, 
 in justice to Reporters, to be mentioned, that 
 they are now actually not at liberty to exercise
 
 AND LAW REPORTS. 1^ 
 
 their own discretion respecting what they pub- 
 lish. Where there are two concurrent Re- 
 porters, each is under the necessity of publishing 
 as much as he can, because he who publishes 
 most, is sure to have the greatest sale ; and 
 where one alone occupies the ground, he is afraid 
 of raising a competitor by not publishing suffi- 
 ciently largely. But however these considera- 
 tions may exculpate Reporters, they in no respect 
 alter the case with respect to reports themselves. 
 These still remain too numerous ; speeches of 
 counsel are too much detailed; and even the judg- 
 ments of the court might frequently be abridged, 
 and would be materially benefited if they were. 
 It is even worthy of consideration, whether the 
 learned persons who preside in courts of jus- 
 tice, might not more frequently make use of 
 extended notes in delivering their judgments 
 than they have ever done, or what would 
 perhaps be still more desirable, read them en- 
 tirely from a wa'ilten paper. The practice of 
 preparing these notes, or of writing judgments 
 fairly out, would no doubt occasion much 
 trouble to judges, especially to those who had 
 not been in the habit of committing their 
 thoughts to paper; but the important benefit 
 resulting from the practice would greatly out- 
 weigh the inconveniences attending it. No
 
 16 ON THE STATUTE LAW 
 
 one who has heard Sir William Grant read a 
 judgment, or Sir William Scott deliver one 
 which he is believed to have written, can have 
 any doubt of the value of such a preparation. In 
 cases of nicety at common law, and in the still 
 more complicated ones which occur in equity, 
 it is beyond the power of any judge, whatever 
 his capacity and memory may be, to advance 
 regularly through an extended exposition of 
 facts, and application of legal principles, assign- 
 ing to each its due place and importance, if he 
 relies altogether upon extemporary recollection, 
 or even upon the remarks which have been made 
 at the bar, or which his own mind may have 
 suggested to him, during the course of the 
 discussion. Much that is irrelevant will be 
 introduced, and more or less of what is impor- 
 tant will be omitted ; the greatest self-possession 
 will not prove a sufficient security against wan- 
 dering and repetition ; the most logical reasoner 
 will occasionally be misled by thoughts which 
 unexpectedly present themselves, and lead in- 
 sensibly from one point to another, until they 
 end in a position, which upon examination proves 
 untenable; and the most correct speaker will 
 not at all times use appropriate language, in 
 matters where the precise terms and turn of 
 expression employed are perhaps of greater
 
 AXD LAM' RF. POUTS. 17 
 
 consequence than in any of the exacter sciences. 
 There can be no doubt that to these sources 
 of error many of the dicta and illustrations of 
 judges, which may be found in the books, are 
 to be traced, which they themselves did not 
 intend to introduce at the time they began to 
 speak, and which have ever since contributed 
 to perplex both the bar and the bench. 
 
 Havincf adverted to the vast increase of re- 
 ports, and causes which produce them, let us 
 now turn to the consequences to which this 
 accumulation leads. The money and space 
 necessary to buy and contain them, are them- 
 selves evils of no small moment: but it is 
 a grievance of a much more serious nature, 
 that every volume of them which sees the light 
 immediately becomes authority, and must, in 
 future, occasionally be consulted. In this re- 
 spect they differ from every other species of 
 publication. If a treatise is published on any 
 branch of literature or science, unless it is pos- 
 sessed of intrinsic merit, it sinks quietly into 
 oblivion, and is never afterwards disturbed by 
 reference or quotation. Reports do not die so 
 easily. However unworthy of encouragement 
 from the cases selected, or the manner in which 
 they are detailed, if they contain a judgment 
 on a single point on which none has till then 
 
 c
 
 18 ON THE STATUTE LAW 
 
 appeared in print, they cannot safely be neg- 
 lected. The latest and best will naturally be 
 consulted most, but not one in the whole cata- 
 logue can be entirely disregarded ; and every 
 addition that has been made to the list, from 
 the Year Books down to the last blue-covered 
 number with which the law-bookseller has sup- 
 plied his customers, is received with a sort of 
 superstitious apprehension by the lawyer, as 
 adding another file to the extending line along 
 which he is obliged to fight. As the most perse- 
 vering industry, with every help he can borrow 
 from Digests and Indexes, will not enable him 
 to read all the Reports of which he is possessed, 
 to which is he to give the preference ? Is he to 
 betake himself to the earliest, the latest, or the 
 best, which very possibly may be neither the 
 one nor the other ? In the mean while, every 
 fresh augmentation of the number more op- 
 presses him, and feeling that they already ex- 
 ceeded what his mind could grasp, he renounces 
 in despair all intention of searching for general 
 principles to connect or controul them. It 
 would have been presumptuous to have ex- 
 pressed this opinion so unreservedly, unless it 
 had been generally entertained, and that by 
 persons of very great legal eminence. Among 
 others, the late Justice Dampier and Sir S.
 
 AND LAW REPORTS. 19 
 
 Romilly concurred in it, and Sir V. Gibbs, 
 when Chief Justice of the Court of Common 
 Pleas, repeatedly and strongly expressed him- 
 self to the same effect, both in words and wri- 
 tinq;. Nor is it to the bar alone that the exces- 
 sive accumulation of Reports is prejudicial : 
 its influence is nearly, if not altogether, as 
 pernicious upon those who fill the bench ; as it 
 enables those who are placed there to give 
 much greater latitude to their natural dispo- 
 sition or acquired habits of thinking and acting 
 than they would have otherwise possessed. 
 The judge who is of a timid or contracted 
 mind will do nothing, however consonant to 
 reason and principle, if a case can be quoted to 
 him in which it ever was decided otherwise ; 
 while another who is disposed to make every 
 thing bend to his own peculiar views is sure 
 to be supplied with some case in which an opi- 
 nion has been given by some court or another, 
 which he may adduce in confirmation of his 
 own notions of principle or practice, however 
 erroneous or extravagant. 
 
 Acts of Parliament come next to be exa- 
 mined, the number of which is swelling with as 
 much rapidity as Reports in courts of law. 
 
 The edition of the Statutes at Large by Tom- 
 lins and Raithby, which is the most condensed 
 
 c2
 
 20 ON THE STATUTE LAW 
 
 of any hitherto given to the public, forms six- 
 teen volumes in quarto and two parts, from 
 Magna Charta to the end of 1818 ; five volumes 
 and a half of which comprise the acts from 
 King John to the end of the reign of George II. 
 and the remaining ten and a half are filled with 
 those of the present reign. Since the Union 
 with Ireland a thick closely-printed volume has 
 been published every two or three years, and 
 the average number of public acts passed in 
 each of the last eighteen years amounts to 140. 
 At this rate of accumulation, their size at the 
 end of the present century will have swelled to 
 fifty of such ponderous quartos, and the number 
 of public acts to 14,000 — no inappropriate com- 
 panion to the 800 or 1000 volumes of Reports 
 which at that period are likely to compose a 
 portion of the treasures of a lawyer's library. If 
 any person should take the trouble to verify this 
 statement, it will be found rather to fall below 
 than exceed the truth, and when the surprize has 
 ceased which it is calculated to awaken, the first 
 question we are irresistibly impelled to ask, is, 
 whether all this mass of legislation be indispen- 
 sably necessary? If it is, it becomes our duty to 
 submit to it with the resignation with which an 
 inhabitant of the Alps eyes the progress of a 
 superincumbent glacier, which he perceives
 
 AND LAW REPORTS. 21 
 
 year after year increasing and descending, and 
 which he foresees must at no distant period 
 overwhelm him. That such must be the effect 
 of the present multiplication of laws if suffered 
 to continue, no reasonable man can doubt. 
 ' We,' says Lord Stair, in the Dedication to his 
 Institutions of the Law of Scotland, as it stood 
 in his time, ' are not involved in the labyrinth of 
 
 * many and large statutes, whereof the posterior 
 
 * do ordinarily abrogate or derogate from the 
 ' prior, that it requires a great part of a life to 
 
 * be promp*- in all those windings, without 
 
 * which no man can with sincerity and con- 
 ' fidence consult or plead, much less can the 
 ' subjects, by their own industry, know where 
 ' to rest, but must give more implicit faith to 
 
 * their judges and lawyers, than they need or 
 
 * ought to do to their divines.' But the neces- 
 sity of such a multitude of public laws ought 
 not to be hastily admitted. If there is any 
 one subject on which experience, and the con- 
 curring streams of knowledge of every kind 
 have given us an incontrovertible superiority 
 over our ancestors, it is in that of legislation ; 
 and by the use of proper means, there is the 
 strongest reason to indulge a belief that the evil 
 complained of, if not entirely removed, might at 
 least be greatly alleviated. Among the causes of
 
 22 ON THE STATUTE LAM' 
 
 the present size of the Statute Law; the num- 
 ber of those relating to the revenue; those pro- 
 hibiting or encouraging importation and ex- 
 portation; those which are local and temporary; 
 those which proceed from a love of legislation ; 
 and the inaccurate and slovenly manner in 
 which the whole body of Acts of Parhament 
 are drawn up, may be named as the most 
 prominent. On each of those, a few observa- 
 tions shall be offered in their order. 
 
 1. The tmmber of' Revenue Laws. — During 
 each of the last eighteen years, the number of 
 acts passed exclusively relating to the revenue, 
 has amounted to forty, and those which are 
 connected with it indirectly, and owe their ex- 
 istence to no other cause, will be found to rise 
 to nearly twenty more. This comprises almost 
 one half of the whole laws annually enacted ; 
 and considering the numbers which now pass 
 every session, it is surely an inordinate propor- 
 tion. When we reflect too on the recent period 
 at which financial law has been introduced into 
 this country, it adds much to the regret and 
 apprehension with which every one who values 
 a liberal system of jurisprudence cannot fail to 
 regard it. The great era of taxation only 
 began towards the conclusion of the Ame- 
 rican war; and when it is considered how
 
 AND LAW REPORTS. 23 
 
 many articles of trade and manufacture, and 
 how many sorts of property have been put 
 under the lock and key, or at least the inspec- 
 tion of the tax-gatherer, one cannot help feel- 
 ing that the multitude of revenue acts have 
 become extremely obnoxious, merely as a body 
 of complicated law to which obedience must 
 be paid. These acts, too, are, from their very 
 nature, the most involved and incomprehen- 
 sible of any to which we are subject. When 
 we take into account the difficulty of effectu- 
 ally securing to Government a duty imposed 
 for the first time ; that fraud, ingenuity, and 
 the gradual advancement of science open one 
 loop-hole after another for the evasion of duties, 
 which it requires a fresh Act of Parliament 
 to shut; that new duties and penalties are fre- 
 quently added to old ones, or old ones totally 
 or partially repealed ; that it may become ne- 
 cessary to levy a tax formerly imposed, by new 
 officers, at a different place, or in a different 
 manner ; and that through the whole series of 
 enactments introducing these alterations, there 
 is invariably inserted a clause of reference to all 
 former acts on the same subject, it may easily 
 be conceived to what a chaos the Revenue law is 
 now reduced. Of this clause of reference, which 
 is one main cause of the confusion existing, take
 
 24 ox THE STATUTE LAW 
 
 the following instance, out of thousands that 
 might be offered, which occurs in the 46th 
 section of the 43 Geo. III. c. 08. ' And be it 
 
 * further enacted, that every Act of Parliament 
 ' in force on and immediately before the 5th day 
 
 * of July, 1803, by which any rules, regulations, 
 
 * conditions, or restrictions, were made, esta- 
 ' blished, or directed for the ascertaining the 
 
 * value of any goods, wares, or merchandise, or 
 ' for the remitting or allowing of any deduction 
 
 * of any duties on account of damage, or for the 
 
 * better securing the revenue of customs, or for 
 
 * the regular importation into, or exportation 
 
 * from Great Britain, or the bringing or carry- 
 ' ing coastwise, or from port to port within 
 ' Great Britain, or the entering, landing, or 
 ' shipping of any goods, wares, or merchandise 
 
 * whatever, except where any alteration is ex- 
 
 * pressly made by this act, and all provisions, 
 
 * clauses, matters, and things relating thereto, 
 
 * shall, and are hereby declared to be and re- 
 
 * main in full force and effect.' The clause of re- 
 ference contained in every act by which Excise 
 duties are imposed is of a still more compre- 
 hensive nature. When it is considered, that 
 the acts now in force with regard to spirits 
 alone amount to more than 140, and that others 
 on the same subject, tliough either expressly or 
 impliedly repealed, arc still referred to in the
 
 AND LAW KLPORTS. 25 
 
 Statute Book, and must be occasionally con- 
 sulted in order to explain those in being, it 
 would be marvellous if tlie trader should not be 
 foiled in his attempt to understand that which 
 it requires all the ingenuity of an exciseman, 
 and the utmost skill of the Barons of the Ex- 
 chequer to unravel. The whole family of Stamp 
 Acts, through every one of its ramifications, is 
 bound together by the same species of reference 
 with that class which has been now instanced. 
 Such an indefinite species of connection no doubt 
 saves time and trouble to those by whom Acts 
 of Parliament are drawn up, and may be deemed 
 by the Commissioners of the Treasury a proper 
 and general security for the exaction of duties, 
 of which a flaw in some particular clause of the 
 act which specially relates to the subject, may 
 have failed to justify the exaction ; but must, 
 of necessity, be harassing in the extreme to all 
 who have to consult or act upon them. It is 
 well known that the exclusive attention of a 
 professional life is scarcely suflScient even al- 
 ready for the attainment of a competent know- 
 ledge of any one branch of our municipal insti- 
 tutions ; and each separate class of our Reve- 
 nue Acts presses for careful and complete revi- 
 sion and consolidation, with a degree of urgency 
 which it will not long be practicable to resist.
 
 2G ON THE STATUTE LAW 
 
 Besides being objectionable on account of 
 their intricacy and number, which are the only- 
 points of view coming properly under considera- 
 tion in this place, the manner in which the acts 
 alluded to restrain commercial transactions, and 
 abridge the subject in the controul and manage- 
 ment of his own property, are evils to which it 
 may not be altogether improper to advert. The 
 inconvenience occasioned by them may be 
 lightened as much as the fair collection of the 
 duties will allow, but it never can be effectually 
 removed. Soap, candles, and spirits, in every 
 stage of the manufacture, are under the lock or 
 seal of the Excise ; and in almost every other 
 exciseable commodity, it is indispensably re- 
 quisite for the trader to give previous notice to 
 the Excise officer of the different steps of the pro- 
 cess before they are begun. In some instances 
 the excellence of the manufactured article is 
 actually affected, of which satisfactory evidence 
 was produced with respect to glove-leather, 
 before the Committee of the House of Com- 
 mons, which sat on the leather trade in 1814; 
 and at all times such restraint cannot fail to be 
 vexatious, because it prevents a man from car- 
 rying on his own business, at his own time, and 
 in his own way. It is much to be wished that 
 these regulations and exactions should in future
 
 AND i.AW KEl'OHTS. 27 
 
 be diminished rather than extended ; otherwise 
 that interference which at first was only felt as 
 troublesome, will in the end come to be hated 
 as insulting, and dreaded as oppressive. 
 
 The immoral tendency of the present system 
 of Revenue law is not less to be lamented than 
 its size and intricacy. The variety and high rate 
 of duties imposed offer such irresistible tempta- 
 tion to illicit traffic, and incitement to every 
 species of contrivance by which the Crown can 
 be defrauded — penalties are incurred so much 
 beyond what the offender knows there is any 
 probability of being exacted — the sanctity of an 
 oath is so frequently and flagrantly abused — and 
 so much encouragement is given to that worst of 
 all necessary evils — informers — that the exten- 
 sion of the Revenue law to so many articles of 
 trade and manufacture cannot be contemplated 
 without feelings of the deepest sorrow. One 
 always is inclined to doubt whether measures 
 can really be good in point of finance, which lead 
 to conduct so abominable in point of morality. 
 The encouragement offered by the Revenue law 
 to informers, and which it does not seem prac- 
 ticable to avoid as long as taxes are raised on 
 so many articles of manufacture, appears to be 
 one of the very worst consequences of the sys- 
 tem. By 22 Geo. 11. c. 36. not only the im-
 
 28 ox THE STATUTE LAW 
 
 porter, but all subsequent sellers, and also the 
 makers up of foreign embroidery, and gold and 
 silver lace, are subjected to have the goods 
 burnt, and to pay a fine of 100/. for each piece 
 discovered, the half of which is given to the 
 informer. By 18 Geo. II. c. 26. and 7 Geo. III. 
 c. 43. any person importing and selling except 
 for exportation, or wearing French lawn or 
 cambric, is made subject to a penalty of 5/. for 
 each offence : but if the wearer is prosecuted, 
 and discovers upon oath the person from whom 
 the same was purchased, he is relieved from the 
 Yjenalty. The 19 Geo. III. c. 19. which imposes 
 penalties on persons who sell tea without hav- 
 ing the words ' Dealers in Tea' painted over 
 their doors, and 0)1 those who buy tea of such per- 
 sons, indemnifies the seller, if he informs against 
 the buyer. The 11 Geo. I. c. 30. imposing pe- 
 nalties on the seller of prohibited or run goods, 
 and also on the buyers of such goods, or goods 
 which the seller pretends to have been smug- 
 gled, exonerates the party ivho shall first prose- 
 cute the other with effect, from the penalties in- 
 curred by himself. By 4 and 5 William and 
 Mary, c. 15. every person who insures prohi- 
 bited or smuggled goods, and every person who 
 agrees to pay any sum of money for such in- 
 surance, incurs the penalty of 500/. ; but if the
 
 AND LAW RLPOriTS. 29 
 
 insurer discovers the fraud, he may keep the 
 insurance money, is discharged from his own 
 penalties, and entitled to half the sum forfeited 
 by the party making the insurance : or if the in- 
 sured should turn informer, then he is to receive 
 back his insurance money, is discharged from 
 his own penalties, and entitled to half the sum 
 forfeited by the insurer. The most direful ne- 
 cessity can scarcely reconcile one to so revolt- 
 ing a method of effecting the intentions of the 
 legislature, as thus to convert master and ser- 
 vant, buyer and seller, into spies and informers 
 against one another, in direct violation of some 
 of the most sacred obligations by which society 
 is held together. 
 
 With any observations upon the principles of 
 taxation, it would be manifestly inexpedient to 
 perplex this inquiry. It may be perfectly true, 
 according to the received maxims of political 
 economy, that indirect taxes when considered 
 in the abstract are the most desirable, and yet 
 a period may arrive in which they prove so nu- 
 merous and complicated, that it may become a 
 serious question whether it would not be ad- 
 visable to change the system altogether, and 
 be better and cheaper for the government, as 
 well as easier and less corrupting to the people, 
 to have the same sum raised by few and weighty
 
 30 ON THE STATUTE LAW 
 
 taxes instead of a multitude of small ones. 
 Should such a plan be ever deemed advisable 
 in practice, it will at least have this recommen- 
 dation, that it will contribute more to restore 
 the vigour and simplicity of the law than any 
 principle which has ever received the sanction 
 of the legislature. 
 
 2. Another set of laws which have greatly 
 helped to swell the Statute book, are those which 
 grant bounties on exportation or importation, and 
 those which prohibit exportation or importation 
 for a limited or unlimited time. 
 
 It is not within the scope of these observations 
 to say any thing respecting the wisdom of the 
 policy by which these enactments have succes- 
 sively been dictated. It is only alleged that 
 their number has exceedingly incumbered the 
 law, and that so many of them have been sus- 
 pended, repealed, and re-enacted, either in 
 whole or in part, that persons whose private 
 interests lead them to consult them, cannot dis- 
 cover with reasonable precision either what the 
 lawwas or is, with regard to almost anyone com- 
 modity. The great law against importation is 
 3 Edward IV. c. 4. passed in 1463, which affords 
 so excellent a specimen of the language used on 
 subsequent similar occasions that it is here in- 
 serted. * Whereas in the said Parliament, by
 
 AND LAW REPORTS. 31 
 
 * the artificers, men, and women, inhabiting and 
 
 * resident in the city of London, and other ci- 
 
 * ties, towns, boroughs, and villages, within this 
 
 * realm and Wales, it hath been piteously showed 
 
 * and complained, how that all they in general, 
 ' and every of them be greatly impoverished, 
 ' and much injured and prejudiced of their 
 ' worldly increase and daily living by the great 
 
 * multitude of divers chaftres and wares per- 
 ' taining to their mysteries and occupations, 
 
 * being fully wrought and ready made to sale, 
 
 * as well by the hands of strangers being the 
 
 * King's enemies as other, brought into this 
 ' realm and Wales from beyond the sea, as well 
 
 * by merchants, strangers, as denizens, and other 
 
 * persons, whereof the greatest part in substance 
 
 * is deceitful, and nothing worth in regard of any 
 
 * man s occupation or profit; by occasion where- 
 ' of the said artificers cannot live by their mys- 
 
 * teries and occupations, as they used to do in 
 
 * times past, but divers of them, as well house- 
 
 * holders as hirelings, and other servants and 
 
 * apprentices in great number be at this day un- 
 ' occupied, and do hardly live in great idleness, 
 
 * poverty, and ruin, whereby many inconveni- 
 
 * ences have grown before this time, and here- 
 
 * after more be like to come (which God defend,) 
 
 * if due remedy be not in their behalf provided,'
 
 32 ON THE STATUTE LAW 
 
 &c. The remedy then provided was the com- 
 plete prohibition of the importation of almost 
 every wrought article for use or ornament at that 
 time known. In furtherance of the principle of 
 this law, we have since taken one step after 
 another, until there is hardly one considerable 
 branch of trade or manufacture that is not de- 
 pressed or encouraged by a prohibition or a 
 bounty. The woollen manufacture, linen, cot- 
 ton, beef, verdegrease, gunpowder, leather, silk, 
 sail-cloth and cordage, chip and straw manufac- 
 tures, whale, cod, herring and pilchard fisheries, 
 butter, cheese, lace, glass, sugar, and corn, have 
 all, with more or less attention, become the ob- 
 jects of parliamentary indulgence. There have 
 been 194 acts passed, prohibiting importation 
 and granting drawbacks and bounties on expor- 
 tation ; 54 respecting the cotton and linen ma- 
 nufactures; 113 relating to the fisheries; 23 re- 
 lating to sail-cloth and cordage ; 29 relating to 
 the corn-trade ; and a proportional number upon 
 other subjects, according to their real or con- 
 ceived importance. 
 
 It would be fatiguing to enter into a detailed 
 examination of the whole of these statutes, but 
 it may not be improper, by way of example, to 
 subject a few of them to closer inspection, in 
 order to show how little knov/ledge, foresight,'
 
 AXI) LAM' RF.POKTS. 33 
 
 and consistency Parliament has evinced in the 
 enactment of them. The first we shall mention 
 is the act of Charles II. which, for the benefit 
 of what was then regarded as the staple of the 
 country, compelled persons of all ranks and con- 
 ditions to be buried in woollen, whether their sur- 
 viving relatives were able or willing to fulfil the 
 provisions of it or not. It is difficult to determine 
 whether this statute is more remarkable for the 
 absurdity or tyranny of the means by which it 
 endeavoured to attain its object. As might 
 have been expected, it soon sunk into oblivion, 
 in which it would probably to this day have con- 
 tinued, had it not been for a conviction under 
 it, which unexpectedly took place a few years 
 ago and caused its repeal by 54 Geo. Ill, c. 108. 
 The linen trade received every sort of legislative 
 encouragement during almost the whole of the 
 last century ; as it sunk in importance it became 
 neglected, and the bounties on English linen 
 were totally repealed by 52 Geo. III. c. 9G. 
 Those on Irish linen had the good fortune to be 
 continued by c. 69. of the same year. A bounty 
 on Irish cotton was granted by 45 Geo. III. c. 
 18. and taken away by 55 Geo. III. c. 181. 
 By 24 Geo. III. Sess. 2. c. 21, the exportation 
 of British skins of certain sorts is prohibited for 
 the purpose of encouraging the hat manufactory. 
 
 D
 
 34 ON THE STATUTE LAW 
 
 One does not at first sight see what possible 
 reason could have been alleged for this act, as 
 it is not probable such skins would have found 
 a better market abroad than at home. The 28 
 Geo. III. c. 38. for consolidating the acts prohi- 
 biting the exportation of live sheep, wool, and 
 manufactures of wool slightly made up, appears 
 to be equally unnecessary. Every one of the 
 articles prohibited would fetch as good a price 
 at home as abroad, and it does not appear that 
 any such restriction is necessary to be laid on 
 English sheep and wool, either on account of 
 their breed or quality. By 41 Geo. III. c. 99. 
 a bounty is given for bringing fish for sale to 
 London, Westminster, and other places; and 
 by 45 Geo. 111. c. 64. it is enacted, that 
 'whereas COOO/. had been paid in respect of 
 
 * the first mentioned act into the Treasury of 
 ' Ireland, and the whole of it had not been 
 ' expended, the Lord Lieutenant is permitted 
 
 * to expend it on the improvement of harbours 
 
 * on the coast of that country' — a much wiser 
 application of the money beyond all question, 
 but it proves with a degree of force, beyond 
 what even demonstration possesses, what pre- 
 posterous laws a rage for bounties may occa- 
 sion. Other instances of the same sort might 
 be here adduced, but they will find a more ap-
 
 Axi) r.AM' in: POUTS. 35 
 
 propriate place under the head which immedi- 
 ately follows. Nothing need be said of draw- 
 backs and bounties, as in the point of view in 
 which they are now considered they stand in 
 every respect in the same circumstances. 
 Every addition which is made either to the one 
 or the other, is sure to give exporters fresh 
 opportunities to cheat the government by ob- 
 taining allowances to which they are not 
 entitled ; and of the number, wealth and good 
 reputation of the merchants and manufacturers 
 by whom such frauds are practised, it is be- 
 lieved none but the officers of the Customs and 
 Excise have any adequate conception. 
 
 The main object of the whole of these various 
 enactments is, to prohibit the introduction of 
 all foreign commodities with which we can 
 supply ourselves at home; and if we cannot, to 
 permit the importation only of such commo- 
 dities as are unwrought, and that only upon 
 condition of their paying a duty on their entry. 
 As this system unavoidably tends to make 
 every thing in our market dearer, our own 
 manufactures have no chance of being disposed 
 of abroad, unless part of the price is paid to 
 the exporter in the shape of a drawback or a 
 bounty. Whether this line of policy is wise in 
 the abstract, how far it may become necessary 
 
 D 2
 
 3G ox THE STATUTE LAW 
 
 ill one state in consequence of its adoption in 
 contiguous ones, and to what extent it may be 
 changed or corrected after it has been once 
 introduced, however injudicious that intro- 
 duction may originally have been, is perhaps 
 among the most difficult problems which states- 
 men are called upon to solve. They come 
 no further into question here, than as the 
 accumulation of them strengthens a suspicion 
 which has long been entertained, that legislative 
 interference in such matters rarely proves be- 
 neficial to a country at large, and that when 
 all the trades and employments who have 
 craved assistance or protection from the legis- 
 lature have obtained them, they prove, like 
 parish relief, baneful to themselves, and in- 
 jurious to their less clamorous neighbours. 
 Such acts may prolong the languishing exist- 
 ence of some manufactures, but check the 
 growth of double the number of others, and 
 prevent capital and industry from flowing into 
 those fresh channels which a change of cir- 
 cumstances might induce them to take. Of 
 the mischievous effects which such a course of 
 legislature has upon the body of our law, 
 there can be no question. Whatever its ope- 
 ration may be in other respects, it is here sure 
 and steady; and, as each of such successive
 
 A\J) LAW lUirOHTS. 37 
 
 acts receives the approbation oi" the Crowu, 
 it has precisely the same ctiect with those 
 already mentioned which relate to the Revenue, 
 in causing the perplexity of the Statute Book 
 to go on increasing in geometrical progression. 
 3. A third cause of the size of acts of parlia- 
 ment is the enactment of local, parlicula/-, or 
 tcmpoi'afy laius, instead o{ general and pcnniuicnt 
 ones. 
 
 It is no doubt true, that there arc a few acts, 
 such as those for continuing certain duties, for 
 punishing mutiny and desertion, for the pay- 
 ment of the army, and their quarters, and for 
 the regulation of his Majesty's marine forces 
 while on shore, M'hich continue out of constitu- 
 tional jealousy to be passed for one year only. 
 Even then it is not in itself an advantage to 
 have these fundamental laws printed annually ; 
 and that circumstance affords no justification 
 for extending the practice to other classes of 
 acts, which arc now repeated without any such 
 necessity. 
 
 It is difficult to account for the extent to 
 which local acts have been carried in this 
 country, where there is less excuse for them 
 than in almost any other kingdom in Europe. 
 There have altogether been 50 passed for the 
 recovery of small debts in different towns and 
 districts, and 43 of them within the reign of his
 
 38 ox THK STATUTE LAW 
 
 late Majesty. Why might not a general law 
 have been so framed as to adapt itself to 
 all parts of the kingdom? The local acts for 
 the management of the poor are still more 
 numerous; and though many of them are 
 perhaps unavoidable, they at least have the 
 effect of showing the danger of suffering one 
 questionable law to pass, as none can tell 
 liow many others may follow in its train. The 
 17 Geo. III. c. 11. is for the prevention of 
 abuses in worsted manufactures in the counties 
 of York, Lancaster, and Chester. The 24 Geo. 
 III. Sess. 2. c. 3. extends the act to Suffolk, 
 and the 31 Geo. III. c. 56. to Norfolk. Accord- 
 ing to this plan of legislation, if the worsted 
 manufacture should hereafter be established in 
 other parts of the country, we may have the 
 principal provisions of this long and intricate act 
 ten or twenty times repeated, which by a little 
 foresight and consideration might have been 
 avoided. The 17 Geo. II. c. 8. relates to the 
 packing of butter in New Malton, Yorkshire; a 
 subsequent act to the packing of butter in the 
 city of York ; and it is believed there is another, 
 relating to the same matter, for Ireland. One 
 should think the whole of his Majesty's subjects 
 might be allowed to pack their butter according 
 to their own fancy ; but even allowing it to be
 
 AND LAM' RKPOKTS. 39 
 
 fit that Parliament should order and enact in 
 what way butter is to be packed, it is still dif- 
 ficult to perceive why there should be two spe- 
 cial acts on that subject for the city of York and 
 town of New Malton, and none for the rest of 
 the kingdom. By the 9 Anne, c. 18. and five 
 or six other acts, provisions were made of a local 
 and partial nature to prevent injury to certain 
 roads from excessive loads on waggons, which 
 have at last met with the fate that ought always 
 to attend so narrow a sort of legislation. After 
 the usual process of cvplainivg, amem/itig, and 
 vKikuig more effectual had been sufficiently re- 
 peated, these and a number of others relative 
 to the highways of the kingdom were repealed 
 in a body, and 37 Geo. III. c. 39 and 42. were 
 enacted as the general laws on the subject, with 
 which it would have been more creditable for 
 Parliament to have begun than ended. In the 
 same way almost every great river in the king- 
 dom has a law of its own for the protection of 
 salmon, with peculiar provisions for carrying its 
 object into execution, though there seems no in- 
 superable obstacle to a general act, which should 
 give to all interested one eifectual remedy 
 instead of several ineffectual ones, and which 
 should at the same time extend to all parts of 
 the empire.
 
 40 ON TlIK STATUTE LAW 
 
 Other enactments, instead of being general^ 
 'dVQ particular. The 31 Geo. II. c.40. prohibits 
 brokers in hay and live cattle from buying and 
 selling on their own account, which the 33 Geo. 
 II. c. 27. extends to dealers in fish. Why should 
 brokers in these articles be subject to different 
 restrictions from brokers in sugar, spirits, or any 
 other commodity ? The 9 Anne, c. 28., 12 Geo. I. 
 c. 34. and 35., 22 Geo. II. c. 27., 6 Geo. III. c. 
 28., 14Geo.III. c.44.and33Geo.III.c. ll.,have 
 been enacted in succession to prevent combina- 
 tions among coal owners,woollen manufacturers, 
 brickmakers, journeymen dyers, silk manufac- 
 turers, certain specified classes of workmen, and 
 manufacturers of paper. Surely it would not 
 have been too provident to suppose, in a manu- 
 facturing country such as this, that the spirit of 
 combination which had broken out among one 
 set of mechanics, might afterwards show itself 
 in others, and therefore it would have been 
 advisable to prepare a general law which might 
 be applicable to each case as it arose. The 
 expediency of this was at last perceived, after 
 much time and labour had been thrown away, 
 and the 39 Geo. III. c. 81. was passed, and 
 again amended by 39 and 40 Geo. III. c. lOG. 
 and extended by 43 Geo. HI. c. 86. to Ireland. 
 But in the improved state in which we now
 
 AND LAW REPORTS. 41 
 
 find it, why is the prohibition against com- 
 bination confined to icorkmoi'^. Laws should 
 be equal as well as wise, and a combination 
 among maslcrs to keep down wages is an 
 offence just as criminal as a combination among 
 worknmi to raise them. That such combinations 
 are not likely to happen is perfectly true, but 
 this can be no justification of the omission now 
 mentioned, in so far as the act is now obviously 
 imperfect, which another may be required to 
 correct, and which the addition of a dozen 
 words would have made perfect in the first 
 instance. To the same class may be added 
 82 acts relating to insolvent debtors; — 106 
 general acts relative to the poor; — 35 in the 
 latter part of the reign of George II. and 
 beginning of that of George III. respecting the 
 distemper of historical notoriety, which, during 
 that period, raged among the horned cattle ; — 
 50 relating to game; — 17 to quarantine; — 54 
 to linen and cotton manufacturers; — 113 to 
 the fisheries ; — 46 during the last reign to the 
 election of members of parliament; — 23 lor 
 enlarging the time for enrolling the wills of 
 Roman Catholics, and the security of Protes- 
 tant purchasers;— and CG for indemnifying per- 
 sons for not qualifying themselves for offices and 
 employments. If the subjects, to which these
 
 42 ON THE STATUTE LAW 
 
 classes of acts refer, had been considered at the 
 outset by the two Houses of ParUament, in that 
 enhghtened and comprehensive manner, which a 
 suitable regard to their own duty and dignity 
 demanded, it could not have been requisite to 
 amend, repeal, and re-enact them so incessantly. 
 The two classes of acts last mentioned so fre- 
 quently occur that they particularly deserve 
 attention. When any act is regularly renewed, 
 it generally proves one of two things, either that 
 the act itself is useless, or that those ought to 
 be punished to whom the execution of it is com- 
 mitted, and by whom it has been neglected. 
 The enrolment of the wills of Roman Catholics 
 is now entirely superseded, after having need- 
 lessly incumbered the Statute book for half a 
 century. The acts for indemnifying persons for 
 not qualifying themselves for offices and employ- 
 ments, yet maintains its place in the annual 
 list, though it appears to be still more ob- 
 jectionable than the other. It is no doubt in- 
 tended as a check upon individuals of suspected 
 principles, should any such insinuate them- 
 selves into stations where the oaths specified in 
 it may be exacted, though no intention is enter- 
 tained of generally enforcing them. No policy 
 can be more dangerous. It is bad in itself and 
 worse as a precedent. The law ought to exact
 
 AND I.AM' REPORTS. 43 
 
 no securities from pu])lic officers but those which 
 are as far as possible really made available, 
 otherwise the contempt which is felt for those 
 which are trifled with, will soon extend itself to 
 those on which reliance is substantially placed. 
 Least of all ought the security of an oath to be 
 so profaned ; for whenever it is either taken or 
 omitted as a matter of course, good sense and 
 decency alike require its discontinuance. 
 
 A third sort of acts are temiporary instead 
 of being 'permanent. If crops fail, seasons 
 prove unfavourable, mercantile distress pre- 
 vails, or sudden changes take place in our 
 external relations, it has been the practice in 
 this country to seek relief by means of acts 
 of Parliament to continue for a limited time. Of 
 this a few instances may be given in order 
 to make what is here meant intellisfible. Durinjr 
 the prevalence of the distemper among horned 
 cattle which has been already mentioned, the 23 
 Geo. II. c. 23. was made on a very curious sub- 
 ject, viz. against the killing of cow calves. 
 Their high price at that time one should have 
 thought would have been a sufficient cause of 
 their preservation, and the few people that were 
 foolish or obstinate enough to kill them, neither 
 could nor ought to have been prevented. Views 
 of the same sort seem to have dictated the
 
 44 ON THE STATUTE LAW 
 
 16 Geo. III. c. 4 1, giving a bounty on the impor- 
 tation of flax seed to Ireland, and 26 Geo. III. 
 c. 2. and 28 Geo. III. c. 45. which prohibit the 
 exportation of hay. It is most hkely that 
 neither of these enactments was required. The 
 price of flax seed would naturally direct its 
 course to Ireland, and when there was a defi- 
 ciency of hay in this country, where every 
 article of agricultural produce is usually as dear 
 as it is any where else, no merchant of sane 
 mind would dream of exporting so bulky a com- 
 modity. A still greater number of acts were 
 passed to alleviate the scarcity of corn which 
 prevailed in 1799, 1800, and 1801. The 39 and 
 
 40 Geo. III. c. 35. and 41 Geo. III. U. K. c. 13. 
 gave bounties on the importation of oats and flour 
 from America within specified periods. The 
 
 4 1 Geo. III. c. 1 7. prohibited the selling of bread, 
 unless after being baked twenty-four hours : 
 the same act c. 20. gave to the majority of the 
 proprietors of common fields greater powers 
 than they possessed at common law, to enable 
 them for a certain time to cultivate potatoes; — 
 and the making of starch from potatoes was pro- 
 hibited by 42 Geo. III. c. 14. The benevolent 
 intention of all these acts is unquestionable, and 
 yet it would probably have shown wisdom 
 in the legislature not to have interposed at
 
 AND LAW REPORTS. 46 
 
 all, but to have allowed time and private 
 charity to bring about a recovery, which 
 these acts were intended forcibly to effect. 
 Bounties on importation are invariably super- 
 fluous, for commercial speculation may be safely 
 trusted to bring* grain, or any other commodity, 
 with the utmost celerity, to that market where 
 they arc likely to meet with a brisk demand. 
 The selling of bread unless twenty-four hours 
 baked, it seems impossible to prevent, from 
 the difficulty of proving the offence, and the 
 breach of the law must often have been more 
 humane than its observance. The prohibition 
 of making starch from potatoes, and cultivation 
 of potatoes in common fields, were objects too 
 trifling to require acts at all, and the last of 
 them, in addition to the objections now stated 
 to it, was also a suspension of the Common 
 law, and of the rights of private property, 
 which the occasion by no means justified. To 
 the same class of statutes may be referred the 
 33 Geo. III. c. 3. prohibiting the exportation of 
 grain to France, during the severe dearth which 
 prevailed there at the commencement of the 
 Revolutionary war ; and the 48 Geo. III. c. 33. 
 to prevent the exportation of Jesuits bark, 
 which the French then urgently required, to 
 stop the progress of dysentery, or some other
 
 4G ON THE STATUTE LAW 
 
 disorder, with which their army was then 
 afflicted. That Great Britain had a right to 
 make enactments of such a description is 
 beyond a doubt; but looking at the occasion 
 on which it was exercised, now that the mo- 
 ment of hostihty and irritation is past, it is 
 to be hoped that, as a great and magnanimous 
 country, no others of so invidious a nature 
 will hereafter find a place among its legislative 
 records. 
 
 Only one other remark now occurs, and it 
 applies to the whole of the local, particular, 
 and temporary enactments which have been 
 under discussion. They are neither regarded 
 by the people, after they have passed, with 
 the reverence which laws ought to command, 
 nor observed, while passing, with that atten- 
 tion which their provisions sometimes merit. 
 As they are supposed to be measures which 
 affect only one district, one description of 
 persons, or are to last for an inconsiderable 
 period, their progress is rarely watched by 
 members of Parliament with a just degree of 
 jealousy; and provisions are suffered, with un- 
 accountable facility, to receive the sanction of 
 the legislature, which are afterwards found to 
 be in direct opposition to the clearest maxims 
 of common law and the general interests of 
 the country.
 
 AND LAW REPORTS. 47 
 
 4. A fourth cause of the increased size, if 
 not of the number of acts of Parliament, is the 
 neghgence and unskilfulness with which they 
 are drawn up. 
 
 On entering upon this part of the subject, 
 it might be thought reasonable that a few 
 instances of the most frequent and glaring 
 faults which occur in the language or con- 
 coction of acts of Parliament should l)e se- 
 lected, in order to substantiate the justice of 
 the charge which has been now made. But 
 after having opened the Statute book at many 
 different places, it seems superfluous to under- 
 take the task. Take up whichever volume of 
 it you will, at whatever page it opens, and 
 however plain the subject may be to which 
 the enactment relates, you are overwhelmed 
 with a degree of verbosity and tautology, of 
 which it is not easy to speak in terms of 
 becoming moderation, and which, with all de- 
 ference to the authority for such ' damnable 
 iteration,' is believed to be quite unparal- 
 leled in any other book. If it were not ut- 
 terly impossible to entertain the supposition, 
 one would be tempted to think, that instead 
 of expressing its meaning with clearness, the 
 legislature had some end to serve by involving it 
 in the greatest possible obscurity and prolixity.
 
 48 ON THE STATUTE LAW 
 
 Indeed it would be linaccountable how men of 
 such rank and education, as those which com- 
 pose the two Houses of ParHament, should 
 have so long suffered such shapeless produc- 
 tions to be ushered into the world under the 
 authority of their names, unless it had been 
 long demonstrated by experience that the most 
 enlightened bodies frequently feel no shame 
 in sanctioning that in their collective capacity, 
 for which there is not one among them would 
 endure to be responsible in his private cha- 
 racter. 
 
 These remarks on the language and arrange- 
 ment of the clauses of acts of Parliament do 
 not proceed from fastidiousness of taste, or 
 admiration of grammatical accuracy, but from 
 a firm conviction that the unnecessary multi- 
 plication of words invariably clouds the mean- 
 ing it is meant to clear, and diminishes the 
 certainty it is intended to augment. If any 
 one species of composition exists where pro- 
 priety and conciseness of expression are requi- 
 site, and where every syllable ought to be ex- 
 punged which the sense does not require, it is 
 beyond all controversy in acts of Parliament. 
 If acts were drawn with even a moderate share 
 of the exactness here pointed out, the pro- 
 visions contained in them would be compre-
 
 AND LAW REPORTS. 49 
 
 hended with infinitely greater ease and cer- 
 tainty than at present, and among other im- 
 provements we shoukl be reheved from the 
 endless repetition of * he, she, and they,' ' him, 
 her, and them,' ' person and persons,' ' all, 
 and every body and bodies,' and many other 
 pleonasms, for which the words ' he,' * him,' 
 and 'them,' without any addition, ought to be 
 expressly declared to be sufficient substitutes, 
 provided such a declaration were necessary. 
 Daines Barrington has remarked, in his ob- 
 servations on the Statutes, p. 243, that 1 1 
 Edward III. c. 4. was probably the first Statute 
 in which the word man did not include wojnan; 
 and shows that in the Laws of Verona there was 
 an express enactment on the subject. "Quoniam 
 " sub authoritate juris civilis perniciose quan- 
 ** doque erratur, statuimus quod in omnibus 
 *' Statutis communitatis civitatis Veronae mas- 
 ** culinum genus comprehendat etiam femini- 
 ** num, si illud de quo tractatur communiter 
 " se habeat ad utrumque." Leg. Municip. Veron. 
 1507, p. 63. Dairy mple, in his Memorials con- 
 cerning the Provincial Councils of the Scottish 
 Clergy, Edinburgli, 17G9, 4to. p. 26, has also 
 remarked, * From the reign of Richard the 
 ' First, words began to be multiplied; before 
 * the reign of James the Third, the evil had 
 
 E
 
 50 0\ TIIF, STATUTE LAW 
 
 * increased ; it is now familiar. How the chimes 
 'are rung- in our enlightened age upon ''any 
 " horst, mule, ass, cattle, coach, berlin, landau, 
 " chariot, chaise, calash, waggon, wain, cart, or 
 " carriage ivhatsoever,'' as if " eve7y quadruped 
 " and carriage' would not comprehend all par- 
 ' ticulars.' As an example of prolix phraseology 
 carried to the utmost extent of which it seems 
 susceptible, the 54 Geo. III. c. 5G. for the 
 encouragement of Statuaries and Bust-makers, 
 may be referred to, which is the more liable 
 to censure, as, both on account of the persons 
 for whose benefit it was made, and because 
 it is an amendment of a former act which it 
 declares to have been insufficient, it might 
 have been expected to be more than usually 
 perspicuous. It runs in the following terms: — 
 
 * Be it enacted, &c. that from and after the pass- 
 
 * ing of this act, every person or persons who 
 
 * shall make, or cause to be made, any new and 
 
 * original sculpture, or model, or copy, or cast 
 
 * of the human figure, or human figuriBs, or of 
 ' any bust or busts, or of any part or parts of the 
 
 * human figure clothed in drapery or otherwise, 
 ' or of any animal or animals, or of any part 
 
 * or parts of any animal combined with the 
 
 * human figure, or otherwise, or of any subject 
 ' being matter of invention in sculpture, as of
 
 WD LAW lu roues. 
 
 ' any alto or basso relievo, representing any ui" 
 ' the matters or things hereinbefore mentioned, 
 
 * or any cast from nature of the human figure, 
 
 * or of any part or parts of the human figure, 
 ' or of any cast from nature of any animal, or 
 
 * of any part or parts of any animal, or of any 
 
 * such subject containing or representing any 
 ' of the matters and things hereinbefore men- 
 ' tioned, whether separate or combined, shall 
 
 * have the sale, right, and property of all and in 
 
 * every such new original sculpture, model, 
 
 * copy and cast of the human figure, or human 
 
 * figures, and of all and in every such bust or 
 
 * busts, and of all and in every such part or parts 
 ' of the human figure, clothed in drapery or 
 
 * otherwise, and of all and in every such new 
 ' and original sculpture, model, copy, and cast 
 
 * representing any animal or animals, and of all 
 
 * and in every such work representing any part 
 ' or parts of any animal combined with the 
 
 * human hgure or otherwise, and of all, and in 
 
 * every such new and original sculpture, model, 
 
 * copy, and cast of any subject being matter of 
 ' invention in sculpture, and of all and in every 
 
 * such new and original sculpture, model, copy, 
 
 * and cast in alto or basso relievo, representing 
 
 * any of the matters or things hereinbefore 
 
 * mentioned, and of every such cast from na- 
 
 t 2
 
 52 ON THE STATUTE LAW 
 
 * ture, for the term of fourteen years, from first 
 
 * putting forth or publishing the same,' &c. 
 Had this act simply declared, * That after the 
 ' passing of this act, every person who shall 
 ' make or cause to be made any piece of sculp- 
 ' ture or model being matter of invention, or 
 
 * any original mould or cast of any objects 
 
 * animate, or inanimate, or of any part or com- 
 
 * bination thereof, or who shall make any origi- 
 
 * nal copy of any such sculpture, model, mould, 
 
 * or cast, shall have the sole right and property 
 
 * to and in the same for the term of fourteen 
 
 * years from first putting forth or publishing 
 ' the same,' &c. it would have been a great deal 
 shorter, and have expressed what appears to 
 be its meaning more distinctly. On this point, 
 however, it is necessary to speak with caution, 
 for in spite of the multitude of words with 
 which it is loaded, one can hardly be certain, 
 however often it may have been read, whether its 
 meaning has been fully comprehended. There 
 are no fewer than three questions which it 
 leaves in considerable ambiguity: Istly, whe- 
 ther a sculptor who invents a statue, and makes 
 casts from it of the same size, has such casts 
 protected against imitation for fourteen years. 
 2dly, whether if a sculptor or moulder makes 
 an exact resemblance of an ancient theatre or
 
 AND LAW REPORTS. 63 
 
 temple, which has never been copied before, re- 
 duced to a tenth of the real size, such copy or 
 work of invention, is within the statute ? And 
 3dly, whether it is unlawful again to reduce the 
 copy, or only unlawful to make and vend a 
 fraudulent fac-simile of it? 
 
 Perhaps more has been said on this act than 
 was absolutely necessary ; but it was very de- 
 sirable on the one hand to show by a full exa- 
 mination of the first example that presented 
 itself, how unavoidably prolixity of language 
 impairs instead of promoting the certainty of 
 the meaning ; and on the other, to guard against 
 the supposition of recommending perspicuity 
 or brevity at the expense of security. Another 
 striking instance of the carelessness with which 
 acts of Parliament are drawn, occurs in 56 
 Geo. III. c. 86. respecting aliens. By the 
 1st, 2d, and 3d sections, aliens neglecting or 
 refusing to obey proclamations for departing 
 the realm, may, by warrant of the Secretary 
 of State, be committed to a messenger, in 
 order that they may be conveyed out of the 
 realm ; but if such secretary has been informed 
 that an excuse or reason for such neglect or 
 refusal is alleged by the alien, he shall suspend 
 the order till the same has been heard before 
 the Privy Council. But by sect. 10. certain
 
 54 ON THE STATUTE EAW 
 
 magistrates and officers of state, merely on sus- 
 picion that an alien is a dangerous person, may 
 commit the alien ; and one of the principal 
 Secretaries of State, by warrant under his hand 
 and seal, may direct such alien to be ordered 
 out of the kingdom, without being heard before 
 the Privy Council or any other person. The 
 provisions of the act abundantly testify that no 
 unnecessary severity was intended, but all who 
 set a proper value on the character of the laws 
 of their country will allow, that in the eyes of 
 strangers, and especially where these strangers 
 are themselves concerned, its legislative enact- 
 ments should as little as possible be liable to 
 the charge of unreasonableness or injustice, and 
 one should think it must strike them as hard, 
 that an alien merely suspected should be treated 
 with greater harshness than one who has actu- 
 ally contravened or refused to obey a royal pro- 
 clamation. The whole act bears marks of haste 
 and unskilfulness. 
 
 If it is allowed to be true, that acts of Par- 
 liament really are framed in the faulty manner 
 now described, it signifies little to the subjects 
 in what way the evil arises ; whether they are 
 prepared by the solicitors to the different public 
 boards, equity draftsmen, or special pleaders ; 
 and whether it happens that want of time, skill.
 
 AN'J) LAW KI.l'OllTS. 
 
 or adequate remuneration is the cause of their 
 defective construction. It is no consolation to a 
 state when suffering under any particular griev- 
 ance, to be informed of the manner in which 
 that grievance has arisen. If Statutes are not 
 properly drawn, then greater care and skill ought 
 to be employed for that purpose. Blackstone, 
 vol. i. p. 181. informs us that in the time of 
 Henry V. in order to prevent mistakes and 
 abuses in the manner of wording acts of Par- 
 liament, which according to the practice then 
 prevailing, were all drawn up at the end of the 
 Session, the draughts of them were prepared 
 by the Judges. Something may occasionally be 
 learnt from the usages of times essentially dif- 
 ferent from our own ; and the employment of 
 the Judges to put the result of their legislative 
 deliberations into suitable words and method, 
 shows the importance which even at that early 
 day they attached to such a task. 
 
 5. The last and most powerful cause of the 
 increase and imperfection of acts of Parliament 
 arises from an excessive love of legislation. 
 Weak men possessing seats in either House are 
 so apt to be pleased with their own noise and 
 bustle; there are so many applications made to 
 Members ol" Parliament either to introduce or 
 support bills for the benefit of districts or bodies
 
 56 ON THE STATUTE LAW 
 
 of men, with whom they are connected ; and 
 there is something so apparently meritorious in 
 an attempt to relieve the distress of our fellow- 
 subjects, however inefficacious or preposterous 
 the remedy may prove, that to abstain from in- 
 troducing Bills, which are either injudicious in 
 themselves or framed with a view to promote 
 private interest, requires no ordinary exertion 
 of integrity and understanding. It is not there- 
 fore surprising, though on that account not the 
 less lamentable, that unceasing attempts should 
 be made to alter and extend the restraints of 
 law, by those very persons who should be the 
 most aware, that of all the excesses which a 
 free government can commit, an excess of 
 legislation is the most mischievous. Indis- 
 putable and important as this principle is, a 
 reference to the Statute book will show, that 
 it has never been more frequently or palpably 
 disregarded than in recent times. It would be 
 tedious to wade through all the acts where this 
 violation is perceptible. The following specie 
 men of regulating Statutes, the whole of which 
 were passed in the reign of his late Majesty, 
 will sufficiently answer the purpose. The 8 Geo. 
 III. c. 17. for regulating the wages of tailors; 
 13 Geo. III. c. 68. empowering magistrates to 
 regulate silk manufactures; 28 Geo. III. c. 7.
 
 AXD LAW UEPOIITS. 57 
 
 to improve gold and silver lace making; 28 
 Geo. III. c. 17. for the better regulation of 
 making ounce thread; 32 Geo. III. c. 44. for 
 regulating the wages of silk weavers ; 36 Geo. 
 III. c. 60. for regulating the making of buttons; 
 36 Geo. III. c. 85. for regulating corn mills; 
 44 Geo. III. c. 69. for regulating the linen ma- 
 nufacture of Ireland, and c. 87. of the same 
 act for resrulatin": the cotton manufacture of 
 England ; 46 Geo. III. c. 59. regulating the 
 packing of butter in Ireland ; 49 Geo. III. c. 
 109. regulating the woollen manufacture; and 
 53 Geo. III. c. 46. regulating the butter trade 
 of Ireland. To the same class may be referred 
 28 Geo. 111. c. 57. followed by several others, 
 limiting the number of persons carried on the 
 outside of stage-coaches; and an act in the 
 beginning of the same reign, the exact date 
 of which is not recollected, to prevent the de- 
 pasturing of forests, commons, and open fields 
 with sheep and lambs infected with the scab or 
 mange; and 43 Geo. III. c. 56., 56 Geo. III. 
 c. 114. and 57 Geo. III. c. 10. regulating the 
 number of persons to be taken on board any 
 vessel from this country to America according 
 to its tonnase. It is believed that a bill for 
 rendering steam-boats more safe for passengers 
 was thrown out in the House of Lords two years
 
 58 ON TlIK STATUTE LAW 
 
 ago. The Climbing Boys bill was thrown out 
 in the same House in 1819; and Mr. Bennett 
 immediately announced in the House of Com- 
 mons his intention to introduce a bill for re- 
 gul(iti)2g cUmbing, as he could not procure its 
 entire abolition. Another has since been intro- 
 duced for the 7'egulation of country bakers ; and 
 a third has been printed, the object of which is 
 to enable grand juries in Ireland to present a 
 sum sufficient to purchase a sword and dress 
 to secure proper respect for the person of the 
 coroners of baronies in that country. Two 
 others, one for providing board and lodging for 
 certain sorts of apprentices, and another for 
 regulating the numbers on clocks and watches, 
 actually passed the Commons, but were fortu- 
 nately stopped in the House of Lords. 
 
 It would answer no purpose to enter more 
 minutely into an examination of very recent 
 proceedings of the legislature, though it would 
 be difficult to select a session in the whole 
 range of parliamentary history in which so 
 great a number of public bills have been intro- 
 duced, especially into the House of Commons, 
 the members of which seem to have almost 
 entirely released themselves from that respect 
 and restraint which they used to feci when 
 acting in the face of an assembly as well cal-
 
 AND LAW RKl'OUTS. 60 
 
 culated to repress folly or presumption as 
 any assembly which was ever called tog^ether. 
 Many bills which are introduced bear une- 
 quivocal marks of never havini^ been maturely 
 considered, either in their immediate or remote 
 effects. They make their appearance in the 
 House nobody knows how or wherefore, and 
 it depends chiefly upon the chance of their 
 attracting or escaping observation whether they 
 are lost or carried. It does not now seem to 
 enter sufficiently into the contemplation of any 
 member of parliament, that his reputation either 
 is or ought to be materially affected by the cha- 
 racter of the bills which he proposes. 
 
 Having adverted to the nature and causes of 
 the excessive and careless sort of legislation to 
 which this country is now subjected, it is im- 
 possible not to deprecate either its extension or 
 continuance. The shape in which it most fre- 
 quently displays itself is that of regulating acts, 
 which involve almost every objectionable qua- 
 lity that public laws can possess. They begin 
 by trenching more or less on the liberty of the 
 subject, which nothing but great and unques- 
 tionable general good can justify, and end in 
 introducing some unmeaning forms, while their 
 substantial enactments remain perfectly nuga- 
 tory. They endeavour to ensure that fuii deal-
 
 60 ON THE STATUTE LAW 
 
 ing between buyer and seller, master and ser- 
 vant, which they neither can nor ought to ac- 
 complish. For if they did, they would destroy 
 that circumspection which every person is 
 bound to exercise in the management of his 
 own affairs : and destroy the simplicity and 
 equality of the law of the land, by subjecting 
 one trade or occupation to restraint, while 
 another, where there is the same reason for in- 
 terference, remains unfettered. It is besides 
 as palpable as demonstration can make it, that 
 if Parliament in its parental kindness were to 
 frame a separate set of rules for the regulation 
 of every craft or employment exercised in this 
 rich and commercial country, it would make 
 our municipal institutions complicated beyond 
 endurance, and produce infinitely more incon- 
 venience, fraud, and oppression than they were 
 intended to remove. On the ground therefore 
 of acts of regulation being mischievous in them- 
 selves, and affording encouragement to others 
 of the same sort, an insurmountable objection 
 presents itself to the whole order, not excepting 
 even that which was introduced last year by 
 Sir Robert Peel in favour of children employed 
 in cotton manufactures, though it is by far the 
 strongest case for interference which has been 
 yet noticed. The laws protecting passengers
 
 AM) LAW UKPOUTS. Gl 
 
 by ships and coaches are not less impolitic. 
 If the Common law was insufficient to ensure 
 the safety of the subject, why should not a ge- 
 neral enactment have been made, declaring that 
 the owners of conveyances, whether by sea or 
 land, should be bound under certain pains and 
 penalties to carry passengers in safety to their 
 destination, according to the express or implied 
 conditions entered into between the contracting 
 parties ? This would have been quite sufficient 
 without prescribing the manner in which it is to 
 be done, to which experience shows that little 
 or no attention ever will be paid. The laws re- 
 specting passengers to America are particularly 
 worthy of attention, as illustrating what will 
 always happen when Parliament exceeds its 
 proper province. These acts, under which an 
 oppressive conviction took place in the end of 
 1821 or beginning of 1822, for an offence within 
 the letter of them, though foreign to their 
 object, were occasioned by the insufficient ac- 
 commodation afforded to passengers, which, 
 in all cases where emigration prevails, will 
 now and then inevitably happen. By the first 
 act on the subject, the captain was only al- 
 lowed to take one passenger on board for 
 every 2^ tons of the ship's burden. These 
 2^ were by the second act increased to 5,
 
 02 ()\ THE STATLTE LAW 
 
 and by the third were reduced to l^ for every 
 adult or for 3 children under 14. So that 
 in 1817, a ship-master was permitted to take 
 on board 10 children under 14, where the year 
 before he was permitted to take only 1. Which 
 of these regulations are the best ? Some of 
 them must of necessity have been bad, and all 
 of them together have probably aggravated the 
 very distress they were meant to alleviate. 
 The same remark applies to the acts in favour 
 of Saving Banks. When these institutions first 
 attracted notice, greater expectations were 
 formed of their utility, than their history will 
 probably be found to justify. Among their other 
 patrons was the late Mr. George Rose, who 
 mainly contributed to the enactment of the 57 
 Geo. III. c. 130. which prescribes a complete 
 code of management, to which every Sav- 
 ing Bank is obliged to conform. Greater 
 disservice it is feared could not have been done 
 to them. The utmost that was required was, 
 to put them on the same footing on which be- 
 nefit societies were placed by 33 Geo. III. c. 54. 
 sect. 10. giving them a preferable claim on the 
 effects of any officer of the society, who died 
 or became insolvent with any of the society's 
 money in his hands. To do more for them was 
 worse than to let them alone altogether. No-
 
 A\D r.AW UK PORTS. ()3 
 
 thing so much weakens the exertion which is 
 made or nitcrest which is felt for the success 
 of any establishment, as to take the manage- 
 ment of it out of the hands of those to whom it 
 ought of right to belong ; and the discussions 
 which arise among the members of such a so- 
 ciety, when left to its natural course, respect- 
 ing its direction and the disposal of its funds, 
 are among the chief springs of that industry 
 and economy by which the savings were origi- 
 nally accumulated. Indeed it is generally true, 
 that no greater mistake in legislation can be 
 committed, than to treat the labouring or any 
 other classes of society, as incapable of the 
 superintendence of their own concerns. If left 
 to themselves, they conduct them with quite as 
 much prudence as their superiors; and like them 
 when guilty of carelessness, imprudence, or 
 vice, they ought to feel the full consequences 
 of their own misconduct. 
 
 The opinion now advanced will perhaps not 
 meet with the approbation of some whose 
 private character is as respectable as the mo- 
 tives of their public conduct are generous and 
 disinterested ; but it is not easy, on any sound 
 principle of policy, to justify the spirit of those 
 laws, of which some have passed, and others 
 are yet in contemplation, by which the com-
 
 64 ON THE STATUTE LAW 
 
 forts of bankrupts, felons, and disorderly per- 
 sons are to be increased and their punishment 
 mitigated, and certain employments deemed 
 noisome or unhealthy are to be forcibly abo- 
 lished by legislative interference. Should the 
 attempts that may be made to produce reforma- 
 tion by kind treatment and the allowance of 
 additional comfort ultimately succeed, every 
 friend of his species ought unfeignedly to rejoice 
 at it; but that society should become amended, 
 exactly according to the degree in which the 
 rigour of the law is relaxed, and those who are 
 amenable to it become hardened and regard- 
 less, is an expectation to which neither reflection 
 nor past experience affords any countenance. In 
 expressing apprehension, however, of the con- 
 sequences of a rapid departure from the whole- 
 some austerity of our ancient laws on the one 
 hand, it should be clearly understood that in- 
 discriminate and extreme rigour is by no means 
 recommended on the other. Judicious experi- 
 ments, and the change of times, may show con- 
 siderable alteration or mitigation of them to be 
 desirable and attainable, but none can be sur- 
 prised that a certain degree of alarm should be 
 excited, when it is observed that those by whom 
 such alterations are most zealously promoted 
 are persons more remarkable for purity of in-
 
 A\D LAW RKPOUTS. G5 
 
 tention than extent of understanding, and wlio, 
 instead of confininj,^ themselves to private acts 
 of charity, where unlimited scope may be al- 
 lowed to the exercise of kind affections, assume 
 the functions of statesmen and legislators, 
 where such feelings are peculiarly apt to mis- 
 lead them. Of all innovators in law, those who 
 by way of distinction are denominated bene- 
 volent men, are the most dangerous because 
 the most popular ; while he who aspires to the 
 character of a sound legislator, must be con- 
 tent to be one of the most ill-requited of all the 
 benefactors of his country. Like the influence 
 of winter on the vegetable world, the salutary 
 and fructifying nature of his measures will in 
 due season be disclosed in their beneficent 
 effects, but the appearance they present at the 
 moment of their adoption is almost invariably 
 severe and uninviting; and those Mdio delight in 
 the sudden and transient changes produced by 
 a more artificial and imposing system, are tardy 
 and reluctant to do justice to their wisdom. 
 His acts are all of a simple and unpretending 
 character, and he displays no quality calculated 
 either to attract the admiration of the great, or 
 win the affections of the vulgar. He neither 
 forces new branches of trade, nor supports any 
 declining manufacture, and however acutely on
 
 66 ON THE STATUTE LAW 
 
 many occasions he may feel as a man for the 
 partial or general distress of the country, his 
 duty as a statesman may compel him to with- 
 hold any legislative assistance. He is required 
 to protect the rights of the unpretending against 
 the solicitations of the importunate; to deny 
 favours to those with whom he is in habits 
 of intercourse and friendship, in justice to the 
 claims of those whom he does not know, and 
 in whom he feels no interest; to resist the most 
 urgent demands of individuals or public bodies, 
 when in opposition to the general good ; and as 
 a last sacrifice, to renounce all views of present 
 personal renown, by preferring sure, steady, and 
 imperceptible improvement to all the glory which 
 ephemeral prosperity could reflect upon him. 
 
 Even in seasons of scarcity, local calamity, 
 or commercial difficulty, the pressure can 
 scarcely ever be so severe as to justify the in- 
 terference of the legislature. If such cases 
 occur, it is only on those occasions when the 
 safety of the whole political fabric is endan- 
 gered, and even then consequences generally re- 
 sult from it, which the most penetrating under- 
 standing could not have predicted. More strik- 
 ing instances of this cannot be given than the 
 43d of Elizabeth for the relief of the poor, and 
 the Bank Restriction Act in ] 797. It is possible
 
 AND LAW REPOUTS. 67 
 
 that these laws, at the time they were passed, 
 may have been absolutely necessary. On that 
 point no opinion is here expressed. They arc 
 only quoted to show, that unless forced upon us 
 by the most direful necessity, there is hardly any 
 temporary exertion or suffering which it would 
 not have been wiser to undergo, than to pass 
 laws which counteract the main springs which 
 govern human conduct. The first of these laws, 
 which is suggested, by the able author of the 
 Letter to Mr. Peel, to have arisen from extreme 
 distress, occasioned by the temporary inade- 
 quacy of the price of labour, has in the issue 
 caused more legislation, litigation, national im- 
 poverishment, and individual misery, than per- 
 haps any single lawwhich ever was promulgated. 
 The effects of the second have, in some respects, 
 disclosed themselves still more rapidly. During 
 the 21 years it has existed, — including the acts 
 for restricting cash payments by the Banks of 
 England and Ireland, — the suspension of the 
 prohibition of the negociation of promissory 
 notes under a limited sum, — the permission to 
 bankers in Scotland to issue notes under a cer- 
 tain amount, — those respecting Bank tokens, 
 and the selling of the gold coin of the realm for 
 more than its nominal amount in Bank notes, — 
 all of which owe their origin to it, the Bank 
 
 F 2
 
 68 ON THE STATUTE LAW 
 
 Restriction act has already given birth to no 
 fewer than forty-six others. The full deve- 
 lopement of these two enactments has probably 
 not yet taken place, but the eftect they have 
 already had on the affairs of the country, and 
 the laborious investigations they have occa- 
 sioned both in parliament and in print, forcibly 
 calls to mind Livy's observation of the declen- 
 sion of the Roman people, ' deinde ut magis 
 
 * magisque lapsi sint, tum ire coeperint prseci- 
 
 * pites, donee ad heec tempora, quibus nee 
 
 * vitia nostra nee remedia pati possumus, per- 
 
 * ventum est.' 
 
 Having said so much of the love of legisla- 
 tion, and the degree in which it at present pre- 
 vails, it may be observed, before quitting the 
 subject, that the evil could not have arrived at 
 the height it has now reached if the two houses 
 of parliament had faithfully done their duty. 
 No wish is entertained to undervalue the extra- 
 ordinary talents and industry displayed by many 
 individual members of which these assemblies 
 are composed, but there is too much ground for 
 suspecting that the business of legislation is 
 usually conducted with a degree of carelessness 
 which is utterly indefensible. Many bills of 
 much general or local importance pass without 
 notice altogether; and when they do attract any
 
 AND LAW REPORTS. 69 
 
 interest, what is called the pri/icipic of the bill is 
 usually the only part of it which members con- 
 descend to discuss, leaving any blunder or un- 
 constitutional clause which may have found its 
 way into its details to be discovered out of doors, 
 or when it afterwards comes to be scrutinized in 
 courts of law. It was mentioned by Lord Stan- 
 hope, in the House of Lords, on the Gth of April, 
 1814, that by a particular statute the punish- 
 ment of fourteen years transportation was to be 
 inflicted for a particular offence, and that upon 
 conviction it should be divided between the 
 king and the informer. Lord Stanhope's state- 
 ment is substantially correct. At the time these 
 observations were first published, I had not dis- 
 covered the act in question, which has been 
 since pointed out to me. It is the 52 Geo. IIL 
 c. 146. called the Register of Baptisms act, and 
 the fourteenth section imposes the punishment 
 of transportation for fourteen years for making 
 false entries in Register Books of Baptisms ; 
 while by the eighteenth, * one half of all fines or 
 
 * penalties to be levied in pursuance of this act 
 
 * shall go to the person who shall inform or sue for 
 
 * the same, and the remainder shall go to the poor 
 
 * of the parish.'' 'Nof?ie whatever is mentioned 
 in the act, nor yet penalty, unless transportation 
 can be reckoned so, yet even if it could in legal
 
 70 ON THE STATUTE LAW 
 
 acceptation be deemed a penalty, as it is not 
 one ivhich can be levied, the whole section be- 
 comes inoperative and unnecessary. It is well 
 that no other epithets can be applied to it, for 
 if it had not been for the slight incongruity of 
 language which has been pointed out, the lite- 
 ral construction of this act would have been, 
 that every person convicted of making a false 
 entry would have escaped punishment alto- 
 gether, and the fourteen years transportation 
 intended for him, would have been divided be- 
 tween the informer and the poor of the parish. 
 It is easy to point out the source of the blunder. 
 As the bill originally stood, the punishment 
 imposed must have been a fine or a penalty, for 
 which, in a late stage of its progress, some mem- 
 ber unexpectedly substituted transportation, 
 without any person taking the trouble again to 
 look overits details, in order to discover what sub- 
 sequent alterations had by such an amendment 
 been rendered necessary. This act also makes 
 Copies of Registers of greater importance than 
 the originals themselves, for copies must be on 
 parchment, while the originals may be, and usu- 
 ally are, on paper : one churchwarden's signature 
 is sufficient to authenticate the signature of the 
 minister, but the signature of two churchwardens 
 is required to send a letter postage free to the
 
 AND LAW REPORTS. 71 
 
 Registrar for the diocese, on certain subjects 
 specified in the act: the printed registers allow 
 the same space for all names, whether the per- 
 son has one name or four, and each division is 
 numbered, so that any omission or repetition 
 affects all succeeding entries in the volume, and 
 no space is allotted for specifying when the 
 person was born, though he may have been 
 baptized many years after his birth. In order 
 still more conspicuously to blazon an act which 
 contains a greater number of absurdities than 
 any other which perhaps ever found a place 
 in Statutory law, it is prefixed to every new 
 Register Book which may be required for the 
 use of any parish throughout the kingdom. 
 
 It is owing to the same sort of supineness, 
 that the bill for facilitating dispatch of business 
 on the Equity side of the Court of Exchequer 
 passed in silence through both houses as a 
 mere regulating act; though, considering the 
 main provision contained in it, and the prece- 
 dent it may afford for future alterations in the 
 Courts of King's Bench and Common Pleas, it 
 certainly deserved as much consideration as 
 the bill for appointing a Vice Chancellor, which 
 created such keen and protracted discussion. 
 What was here anticipated has since actually 
 taken place, and, in the latter part of the
 
 72 ON THE STATUTE LAW 
 
 session of 1819, a bill was introduced into the 
 House of Commons to regulate the Courts of 
 King s Bench and Common Pleas, which if it 
 passed, would have introduced, with reference 
 to motions for new trials, one of the most im- 
 portant changes into these courts which they 
 have undergone since the time of their institution. 
 It was however withdrawn for that session, and 
 has not again been brought forward. The 53 
 Geo. III. c. 160. respecting Unitarians, crept 
 through in the same manner. This is not the 
 place to bring the principle of the bill into ques- 
 tion ; but it may be permitted to observe, that 
 it seems singularly inconsistent, that the Test 
 Act should remain unrepealed, and the claims of 
 the Roman Catholics produce almost every year 
 such lengthened and animated debates in parlia- 
 mentwithout being granted, and yet that this act, 
 which is perhaps more dangerous to various in- 
 stitutions in Church and State than both of them 
 put together, should have been suffered to pass 
 through the two houses of parliament at so late a 
 period of the session as the 20th of July, appa- 
 rently unnoticed or disregarded, the Archbishop 
 of Canterbury and Bishop of Chester simply 
 declaring, when it was read the third time in the 
 House of Lords, ' that it was not called for by 
 ' any pains or penalties sought to be inflicted by
 
 AND LAW RKPORTS. 73 
 
 * the Church of England.' — Hansard's Debates, 
 vol. xxvi. p. 1222. The last instance of neg- 
 ligence in passing Acts of Parliament which 
 shall be adduced is the following. By 10 
 Geo. III. c. 18. it is enacted, that all persons 
 stealing dogs, or selling, buying, or detaining 
 dogs, knowing them to be stolen, shall, for the 
 first offence, forfeit a sum not exceeding £30, 
 nor less than £20, upon conviction, and until such 
 sum is paid, be committed to the common gaol 
 or house of correction ; and shall, for the second 
 offence, upon conviction, forfeit not less than £30, 
 nor more than £50, upon conviction, and until 
 paid be committed to the common gaol or house 
 of correction, until such sum shall be paid: ' and 
 
 * such justices shall also order the said offender 
 
 * to be publicli/ 2vhipped within three days after such 
 
 * commitment, in the town in which such gaol or 
 
 * house of correction shall be, between the hours 
 
 * of twelve and one of the clock.' And then 
 the 4th section enacts, ' That if any person 
 
 * thinks himself or herself aggrieved by any 
 
 * thing done in pursuance of this act, such per- 
 
 * son may appeal to the justices of the peace, 
 
 * at the next quarter sessions of the peace, to 
 
 * be held for the county or place where such 
 
 * cause of complaint shall arise, and within four 
 ' days after the cause of such complaint shall have
 
 74 ON THE STATUTE LAW 
 
 * arisen, Sec. such appellant giving*, or causing, 
 
 * to be given, fourteen days notice at least, in 
 
 * writing, of his or her intention to bring such 
 
 * appeal, &c. to the persons whose acts are com- 
 
 * plained against.' The records of Tartarus 
 itself present no precedent of so outrageous a 
 violation of justice. When the presiding magis- 
 trate, in these 
 
 ' durissima resrna 
 
 * Castigatque auditque dolos,' 
 
 he seems to think it a sufficient abuse of autho- 
 rity to make the sentence precede the trial, and 
 there the iniquity of his proceeding ends. But 
 to insult the complainant with an appeal against 
 whipping, eleven days and perhaps eleven 
 weeks after he has been whipped, provided 
 always he ' should think himself aggrieved,' is 
 a refinement of oppression which it is to be 
 hoped no modern Rhadamanthus, except an 
 English justice sitting in judgment on a dog- 
 stealer, ever had the power of inflicting. 
 
 One cannot help perceiving that much of the 
 precipitation and carelessness here complained 
 of, is caused or countenanced by the practice of 
 the ministers of the crown. No reflection is 
 here intended to be cast upon any individual or 
 particular administration. The evil has struck
 
 AND LAW REPORTS. 75 
 
 its roots too deep to have been produced by any 
 one set of men, and nothing but a considerable 
 improvement in the management of public busi- 
 ness can remove it. Official men in this country 
 who fill posts of high trust and confidence have 
 so many duties to perform, especially during 
 the sitting of parliament, that many of them must 
 be performed indifferently, and that of legisla- 
 tion is usually the worst. A bill is scarcely ever 
 brought in by any department of the government 
 until it can be no longer postponed or avoided, 
 and is then passed so hastily that sufficient time 
 for the examination of it is not afforded to the 
 legislature. Should any member of either house 
 ask why any particular bill has not been pro- 
 posed sooner, the reply usually is, that it will 
 be time enough to legislate when the occasion 
 calls for it ; and when at last a call is made 
 by the occasion, the excuse for precipitation 
 is, that unless it is immediately passed, the 
 public service must suffer. If no glaring defect 
 is discovered in its construction, it is dispatched 
 as a matter of ordinary business; if not, another 
 act is passed the same or following year, to re- 
 peal, suspend, or amend it. In this way those 
 who are in offices of responsibility hold forth an 
 example of hurry and negligence, which those 
 who have less excuse are not slack to follow;
 
 76 ON THE STATUTE LAW 
 
 and if those who take charge of bills are in haste 
 to bring them in, the house is frequently not less 
 so to get them out again. The correction, 
 amendment, or rejection of legislative measures 
 is often thought a task too tedious and inglo- 
 rious to be undertaken by those very persons 
 who prodigally exhaust every faculty of mind 
 and body in the examination and prosecution of 
 the most contemptible party question. In the 
 House of Commons in particular, it is well known 
 that towards the conclusion of the session, it is 
 possible for a member who is astute in parlia- 
 mentary practice to carry a bill almost through 
 the house before it is known to have existence ; 
 and that the Upper House is the only place, 
 especially if it be a local or private one, where 
 it has the smallest chance of being candidly exa- 
 mined. In this point of view, the latter branch 
 of the legislature is of incalculable value, and 
 has on many occasions acted as a flood-gate 
 against the tide of legislation which is now roll- 
 ing so impetuously through the House of Com- 
 mons. Bad as the state of our laws is, if it had 
 not been for this interference, it would have been 
 still more deplorable. In observing the bills 
 which are in progress, it is supposed to be the 
 duty of the Lord Chancellor to be particularly 
 attentive, and from the vigilance with which the
 
 AND LAW REPORTS. 77 
 
 present possessor of that exalted office^ the late 
 Lord Stanhope, Lord Lauderdale, the late Duke 
 of Norfolk, and some others, have displayed in 
 that respect, they have rendered distinguished 
 though unostentatious service to their country, 
 and meritoriously discharged the trust which, 
 as hereditary counsellors of the crown, their so- 
 vereign has confided in them. What has just been 
 said, is only intended as an acknowledgment of 
 the gratitude which is owing by the country to 
 a kind of merit which has hitherto neither been 
 known nor appreciated as it ought to be, and 
 which, as peculiarly becoming the dignity of the 
 House of Peers, it would be desirable to see 
 more generally displayed by that distinguished 
 body. To the class of noble persons now enume- 
 rated, few have yet appeared who are either 
 qualified or anxious to succeed, and if none 
 should have come forward at the time when they 
 become extinct, then one of those unperceived 
 changes will have taken place which are gradu- 
 ally passing on all human institutions, by which 
 its efficiency is lamentably altered, though its 
 structure may remain unchanged. 
 
 Nothing now occurs to be added to the re- 
 flections which have suggested themselves on 
 the present size of the Statutes and Reports in 
 courts of law, and on the rate at which they are
 
 78 ON THE STATUTE LAW 
 
 increasing. It is to be hoped they have been 
 communicated without offence, without exag- 
 geration, and without using any expression 
 tending to bring into disrepute either the law or 
 the legislature. Nothing at least could have 
 been more foreign to the wishes and sentiments 
 by which they were dictated. The regular 
 series of our acts of parhament and the most 
 important judgments which have been given in 
 our courts of law, form incontestably the most 
 splendid and complete records of their respect- 
 ive kinds vv'hich any country, either in ancient 
 or modern times, has ever yet possessed. It is 
 a sincere, if not an enthusiastic admiration of 
 them which has called forth these observations, 
 with a view to remove the ancient imperfections, 
 or at least to prevent the spread of the modern 
 abuses which deform them. No plan, espe- 
 cially with regard to reports, has been proposed 
 for the rectification of the evils pointed out. 
 Precipitate proposals of this sort more fre- 
 quently retard than promote their object, and 
 the first sure step to practical reform is to ex- 
 cite candid inquiry into the nature and extent 
 of the grievance sought to be reformed. On 
 one point however it is not difficult to pronounce. 
 Any alteration that might be adopted with refe- 
 rence to reports, would be preferable to the
 
 AND LAW REPORTS. 79 
 
 journals of proceedings in courts of law and 
 equity, which are constantly issuing from the 
 press : and in case no better plan could be de- 
 vised, it would be felt as a relief again to have 
 recourse to Lord Coke's * four discreet and 
 ' learned professors of the law,' to report cases, 
 rather than continue fourteen, who are not likely 
 to be all learned professors, and who would in- 
 jure their employment if they exercised discre- 
 tion. With respect to amendments in the law, 
 and a moderate but dignified controul over all 
 measures in which the law is concerned, there is 
 one class of persons peculiarly qualified to be- 
 nefit their country, from whom more might be 
 expected than they have ever yet performed. 
 Those who are here meant are ex-chancellors 
 and judges, many of whom retain complete pos- 
 session of their powers, and whose knowledge 
 of business and experience of the world would 
 enable them during a few years of retirement to 
 confer more permanent benefit on our system 
 of jurisprudence than all their preceding course 
 of active service. But from whatever cause it 
 arises, whether from that necessity for repose 
 which generally succeeds constant and severe 
 exertion ; whether habit disinclines them to an 
 alteration of rules and practice with which they 
 have become familiar ; or whether it is that age
 
 80 ON THE STATUTE LAW 
 
 freezes the activity and energy required to 
 propose or execute any amendment however 
 cautious, the fact itself is indisputable. * Young 
 men,' says Lord Bacon, * care not to innovate, 
 ' which draws unknown inconveniences, use 
 
 * extreme remedies at first, and that which 
 
 * doubleth all errors, will not acknowledge or 
 ' retract them. Men of age object too much, 
 
 * consult too long, adventure too little, and re- 
 
 * pent too soon.' 
 
 Neither has any proposal been offered in the 
 course of the remarks on the size and intricacy 
 of the Statute-book, by which these blemishes 
 might be removed. It is possible that some 
 such general revision or arrangement of it as 
 that which was contemplated by Lord Stan- 
 hope may hereafter be adopted with advantage, 
 but it would at present be rash to express any 
 sanguine expectation on that head. A less ad- 
 venturous course might lead more safely and 
 expeditiously to the desired object, and instead 
 of throwing the Statute law all at once into a 
 new form, it might be better to remould it gra- 
 dually, by taking care that the enactments which 
 may hereafter receive the sanction of the legis- 
 lature, should be as 'permanent, general, and in- 
 telligible as possible. If this rule in drawing up 
 acts of parliament were rigidly observed, and
 
 AND LAW REPORTS. 81 
 
 none but such as possessed this character were 
 suffered to pass into law, all well-grounded 
 complaints against acts of parliament would 
 quickly vanish. The perpetual enactment, sus- 
 pension, repeal, and re-enactment of laws is 
 equally discreditable to the legislature and 
 grievous to the subject. A stronger instance of 
 this cannot be given than the Irish Grand Jury 
 Presentment Bill, which is evidently one of the 
 most important measures ever attempted for 
 the amelioration of that country, and about 
 which no vacillation after it was once determined 
 on ought to have been exhibited. The bill, 
 however, was passed in 1817, suspended in 
 1818, till the end of that session of parliament, 
 and notice of a further suspension again given 
 in the beginning of 1819. It is thus left in 
 doubt how many more suspensions may yet take 
 place before it receives the royal assent, or 
 whether the bill may not eventually be aban- 
 doned. On particular enactments instead of 
 general ones, an opinion has already been ex- 
 pressed upon the lamentable practice of legis- 
 lating in detail instead of in the gross. A sta- 
 tute can scarcely be too general in its applica- 
 tion to the subjects to which it relates, or too 
 complete a body in itself, so as to supersede all 
 reference to antecedent ones. Bv this means.
 
 82 ON THE STATUTE LAW 
 
 whenever the subject of Insolvent Debtors, 
 Fisheries, Election of Members of Parliament, 
 Quarantine, or any such general head of law, 
 came under consideration, the various provi- 
 sions which lie scattered in the Statute-book 
 would be repealed, and one systematic enact- 
 ment substituted in their stead. This has to a 
 certain extent been done in the Revenue Con- 
 solidation Act, 43 Geo. III. c. 69.-28 Geo. III. 
 c. 38. for consolidating the acts respecting the 
 exportation of live sheep and unwrought wool, 
 and 52 Geo. III. c. 143. for reducing into one 
 act the offences against the revenue punishable 
 with death. The game laws, which have so 
 often and always ineffectually been brought 
 before parliament, afford one of the best pos- 
 sible opportunities of exemplifying such a plan 
 of legislation. The subject of game is one 
 where the various subsisting enactments are 
 numerous and intricate, in which no precipita- 
 tion is required, and where a member of par- 
 liament possessed of judgment and industry 
 would do great credit to himself and benefit to 
 the country, by incorporating the whole of the 
 existing provisions on that head into one act, 
 which would then be submitted at once to the 
 consideration of the legislature. The bill intro- 
 duced by Mr. Brand three or four years ago.
 
 AND LAW REPORTS. 83 
 
 disappointed the expectations it had raised. 
 Even if it had passed, it woidd have left all 
 the regulations about poaching, and other ab- 
 struse branches of that divison of the law, in 
 the same confused and unsatisfactory state in 
 which we now find tliem. 
 
 It is unquestionably true, that it would require 
 much skill and caution to prepare such general 
 acts, so as neither to overshoot nor fall short of 
 the object aimed at ; but this instead of being 
 a disadvantage, would in reality be one of the 
 greatest benefits which would follow from the 
 introduction of such a kind of laws as have been 
 here described. Longer time and greater ca- 
 pacity would be required to prepare them : a 
 comprehensive and exact view of the subject 
 would in every instance be requisite ; and an 
 effectual stop would be put to the enactment 
 of laws as temporary expedients, which is the 
 chief cause of all this legislatory mischief. If 
 only one of such acts passed every single or 
 alternate session, it would be a decided ap- 
 proach towards the attainment of the end in 
 view, and the Statute Law, like a salubrious 
 but neglected spring, would gradually dispel 
 the impurities by which it had been corrupted 
 or disturbed, and become more transparent and 
 invigorating as it flowed. Only do not let diffi- 
 
 g2
 
 84 ON THE STATUTE I-AW 
 
 culties be magnified by those who have neither 
 the power nor the will to contrive or encourage 
 any plan of improvement, and delight in re- 
 pressing every attempt at amelioration, without 
 either trial or examination. If any thing at all 
 is done it will be hailed with satisfaction, pro- 
 vided it really tend to simplify and methodize 
 the laws under which we live, and to continue 
 the practice of them in the rank of a liberal 
 profession, which, if things go on as they have 
 lately done, it is impossible it can long continue. 
 At the same time the task is so difficult and im- 
 portant, that it would be matter of regret if it 
 should fall into the hands of inadequate and 
 bold projectors, who glean from every code, 
 either ancient or modern, whatever suits their 
 pre-conceived notions, without reference to the 
 existing institutions or circumstances of the 
 country, and who sufi'er themselves to be 
 biassed by the declamatory speculations of the 
 daily press, which are too often delivered in a 
 tone of dogmatism and arrogance ill-suited to 
 the research and reasoning by which they are 
 supported. That the feeling of the mass of the 
 public, when steadily and unequivocally mani- 
 fested through any channel, deserves respectful 
 and anxious attention there can be no dispute ; 
 but the history of recent times affords abundant
 
 AND LAW REPORTS. 85 
 
 testimony, if any such were wanting, that the 
 rapidity and caprice with which popular opinion 
 shifts about, entitle it to little weight in any case, 
 and on questions of law to less than on any other. 
 Those upon whom the difficult and important 
 duty of superintending legislation naturally de- 
 volves, are men of acknowledged rank and 
 established reputation, whose minds have been 
 enlarged by reading, strengthened by observa- 
 tion, and corrected by experience. It is to 
 them the preceding observations have been 
 principally addressed ; and if they should have 
 any effect in directing their attention to a sub- 
 ject in which the reputation and prosperity of 
 the country are so deeply interested, they will 
 have fulfilled the purpose they were intended 
 to serve.
 
 ON 
 
 THE CRIMINAL LAW 
 
 ENGLAND. 
 
 We live at a period when the human mind is 
 every where acting under a powerful impulse. 
 Whatever diiFerence of opinion may be enter- 
 tained respecting the causes from which it pro- 
 ceeds, or the consequences to which it leads, 
 the existence of the fact itself admits of no dis- 
 pute. Wherever our personal observations or 
 the information derived from others enable us 
 to extend our view, we find mankind restless 
 and dissatisfied, and straining every faculty of 
 mind and body for the amelioration of their 
 condition, to a degree of which no former age can 
 furnish an example. Nothing can more strongly
 
 88 ON THE CRIMINAL LAM'. 
 
 illustrate this than the inefficiency and con- 
 tempt into which those countries have fallen, 
 which do not keep pace with the general pro- 
 gress of improvement; while in every other 
 fresh channels of communication are perpetually 
 opened, more efficacious means are adopted for 
 securing the continuance of natural and ac- 
 quired advantages, and the resources of art are 
 exhausted in devising means for employing in 
 the most profitable manner every quality of the 
 soil or substance which may be found beneath 
 its surface. Nor has this display of energy been 
 confined to external nature- alone. It has been 
 exerted no less successfully on mind than on 
 matter, and in those sciences which treat of 
 man as a rational, moral, and social being, 
 more rapid progress has been made, and a 
 greater revolution of opinion has taken place, 
 within the last half century, than for some thou- 
 sand years preceding. The attachment shown 
 to old manners and customs, as well as defe- 
 rence yielded to station and authority, is every 
 day diminishing; and the public is now so 
 much accustomed in every instance to trust 
 implicitly to its own judgment of what is right 
 and wrong, that it submits reluctantly to any 
 other species of controul. All classes of society 
 are as tenacious of their own rights as prompt
 
 ON THE CRIMINAL LAW. 89 
 
 to question those of others, and can with diffi- 
 culty be brought to admit the most intricate or 
 comprehensive point of" hterature, morality or 
 policy, to be placed beyond the sphere of their 
 understanding. If the course of events creates 
 discussion about any matter in which the com- 
 munity at large is interested, neither length of 
 acquiescence nor strength of legal title, can 
 protect it from full and unceremonious investi- 
 gation ; and if any received or established doc- 
 trine, law, or usage, has once become the ob- 
 ject of dispute, there is no other way in which 
 the attack can effectually be repelled, but by 
 showing that it is not only just or expedient in 
 a general point of view, but that it is so under 
 the particular circumstances in which it may 
 happen to be called in question. This spirit of 
 universal inquisition is one of the most striking- 
 characteristics of the present day, and requires 
 to be anxiously and dispassionately observed 
 by all who govern human affairs as well as 
 those who meditate upon them. It is openly 
 or secretly pervading every quarter of the 
 civilized world, and the most penetrating un- 
 derstanding can form no conjecture of the 
 purposes it may be destined to effect, before 
 its appointed course is finished. Instead of 
 striving to retard or arrest its progress, which
 
 90 OIV THE CRIMINAL LAW. 
 
 no human power or policy is able to accomplish, 
 it would be wiser for those to whom the super- 
 intendence of public measures is intrusted, to 
 endeavour to confine it within reasonable limits, 
 and direct it to the attainment of practicable 
 objects. 
 
 Few subjects have, for the last fifty or sixty 
 years, engaged on the continent of Europe a 
 larger portion of the inquisitive spirit which 
 has been mentioned, than that of criminal juris- 
 prudence. It is only within a recent period 
 that it has become the object of much reflection 
 in England, and some circumstances may be 
 pointed out to which this inattention has to a 
 considerable degree been owing. The abolition 
 of torture, publicity of procedure, and general 
 impartiality of those who presided in courts of 
 justice, all conspired to confer upon the crimi- 
 nal law of England an early and decided supe- 
 riority over that of all its neighbours. This 
 very circumstance appears to have proved the 
 chief obstacle to its advancement in after-times. 
 The country, instead of promoting the progress 
 of an improvement so auspiciously begun, sat 
 down satisfied with M^hat had been already 
 done, and cannot be said to have made a single 
 effort for that purpose during the whole of the 
 eighteenth century. It is true indeed that
 
 ON THE CRIMINAL LAW. 91 
 
 various committees of the two Houses of Par- 
 liament were, within that time, deputed to 
 investigate particular matters connected with 
 criminal jurisprudence, but the result of their 
 labours was trifling ; and even those which sat 
 in 1750 and 1770, which may be considered as 
 the most efficient of the whole number, neither 
 produced nor recommended any material prac- 
 tical improvement. About the last of the two 
 periods now mentioned, a variety of treatises 
 on crimes and punishments began to be circu- 
 lated in all parts of the continent, and entirely 
 new codes of penal law were promulgated in 
 some of the most considerable states comprised 
 within its limits. It is somewhat singular that 
 neither this activity of discussion and legisla- 
 tion, nor the popularity both at home and 
 abroad which at that time followed the labours 
 of Howard on a kindred subject, seem to have 
 created in the minds of the people of this 
 country, the least desire for the simplification 
 or correction of any part of their own criminal 
 law. For forty years after this date it con- 
 tinued unchanged either in form or substance, 
 unless a new tax or fresh variety of an old 
 offence, helped to swell the catalogue of clergy- 
 able or capital felonies, occasioned by the ex- 
 tension of trade or alteration in the state of
 
 92 ON THE CRIMINAL LA'W. 
 
 society. At last Sir Samuel Romilly became 
 the means of rousing the public from the lan- 
 guor in which it had so long remained. The 
 bill which he introduced into the House of 
 Commons in 1808, for abolishing capital punish- 
 ment for stealing privily from the person^ and the 
 debates which took place upon it, began that 
 course of discussion which has never since been 
 discontinued. From this period the current 
 which had hitherto run too strong in favour of 
 every part of the existing laws, in some degree 
 changed, and that impetuous and determined 
 zeal which has so often led the country to 
 transgress the bounds of prudence in the pro- 
 secution even of a virtuous cause, seems to have 
 inspired certain excellent and indefatigable in- 
 dividuals with a desire by means of boundless 
 kindness and compassion to atone for the su- 
 pineness and severity of which their forefathers 
 had been guilty. The bill which Sir Samuel 
 Romilly introduced, was passed into a law. 
 Three other bills were introduced by him in 
 1810, the object of which was to abolish the 
 punishment of death for stealing from a shop or 
 warehouse to the amount of five shillings; from 
 a dwelling-house to the amount of forty shil- 
 lings ; and from on board vessels in navigable 
 rivers to the same amount. The whole of these
 
 ON THE CRIMIXAL LAW. 93 
 
 bills were then rejected, and though the same 
 or others of a similar nature were again brought 
 by him into the House of Commons in 1811, 
 1813, 1810, and 1817, he did not live to see the 
 provisions contained in any of them adopted. 
 What further alterations that distinguished man 
 intended to have efiected in the criminal law 
 of England, in case he had accomplished the 
 measures he had undertaken, or what his ge- 
 neral opinions on the subject of penal juris- 
 prudence were, the public hitherto possesses 
 no sufficient means of judging; for on every 
 occasion on which he communicated his thoughts 
 to the world either in speech or writing, he has 
 expressed himself with that extreme caution and 
 reserve, which was one of the most striking 
 peculiarities in his character. The subject was 
 again brought forward in the House of Com- 
 mons after his death, by certain members who 
 coincided with him in their general sentiments, 
 and in March 1819 a Select Committee was 
 appointed to inquire into all offences which are 
 rendered capital by the present criminal laws. 
 The Report made by the committee to the 
 House was printed in November following, to- 
 gether with the evidence taken before them, 
 and the documents of which they were put in 
 possession. To the opinions contained in this
 
 94 ON THE CRIMINAL LAW. 
 
 volume, a large portion of the following reason- 
 ing will be found to refer, and though much of 
 the value which is still attached to the Report 
 and the Evidence annexed to it must in a few 
 years pass away, the time and circumstances 
 in which it appeared will always invest it with 
 some degree of interest in the eyes of all those 
 who may in future direct their attention to the 
 subject. It is the work of members of parlia- 
 ment, and executed under parliamentary autho- 
 rity, — comprises the most valuable collection 
 of documents which has perhaps ever been 
 given to the world relative to the administration 
 of criminal law in any particular country, — and 
 contains the first distinct annunciation of that 
 plan of reform which certain gentlemen within 
 parliament and their coadjutors out of it, have 
 been for some time strenuously endeavouring 
 to introduce into our whole penal code. 
 
 It will be the first object of the following 
 observations, to enter into a detailed examina- 
 tion of the contents of this Report, and espe- 
 cially of those alterations of the law which it 
 has actually recommended : then to inquire into 
 the practicability of other alterations, which the 
 Committee evidently have in contemplation, 
 though they have not been specifically pro- 
 posed : and last of all, to offer some suggestions
 
 ON THE CUIMIXAI. I. AW. 95 
 
 on the practicability and expediency of the 
 arrangement and consolidation of the whole 
 criminal law of England. 
 
 I. 
 
 The Report of the Committee on the Criminal 
 Law consists of four sections. The Jir.st relates 
 to the rtluDis or .stati^lkal tables produced 
 before the Committee by gentlemen holding 
 offices connected with the administration of 
 this branch of law throughout the kingdom: 
 •the second to those existing laws which the 
 Committee propose to repeal : the third to the 
 renewal of Sir Samuel Romilly's acts repealing 
 larceny : and i\\Q fourth to the crime of forgery. 
 Some observations shall be offered on the con- 
 tents of each of these four sections in their 
 order. 
 
 1. The first section of the Report relates to 
 the returns of commitments, convictions and 
 executions, presented to the Committee by va- 
 rious public officers connected with courts of 
 criminal jurisdiction. They relate to different 
 parts of England, and extend to different periods 
 of time during the ISth century; but include 
 the whole of England and Wales, from 1805 
 down to 1819, at which date the accounts were 
 printed. In collecting, arranging and publishing
 
 9G ON THE CRIMINAL LAW. 
 
 these papers, the Committee have rendered a 
 distmguished service to their country. Though 
 the utility of these documents was acknow- 
 ledged when this inquiry was first laid before the 
 public, subsequent reflection has induced me to 
 set a considerably higher value on them than I 
 at that time did. They contain within the small- 
 est possible compass, a larger mass of authentic 
 details respecting criminal jurisprudence than 
 has ever before been collected into a single vo- 
 lume, from which all subsequent inquirers may 
 derive very important assistance in order to cor- 
 rect or confirm their reasoning. At the same 
 time it is necessary to employ great circumspec- 
 tion in drawing any inference from the particular 
 truths which they exhibit. This arises from 
 the essential distinction which exists between 
 the sciences which relate to matter, and those 
 which relate to man, either as an intellectual 
 being or member of society. Of the properties 
 of matter, or of the manner in which, under any 
 given circumstances, it can be acted upon, we 
 know nothing but from the tables or details of 
 facts which have been observed from without 
 concerning it. But with respect to the nature 
 and government of mankind, in addition to what 
 may be learnt from historical facts, we have a 
 much more valuable source of information in our
 
 OV THE CRIMIN'AL LAW. 97 
 
 own bosoms. As we are all constituted alike, 
 every individual who closely observes the ope- 
 ration of his own understanding and affections, 
 will obtain the surest and deepest insight into 
 the best means of managing those of others. 
 It is by careful and repeated reflection therefore, 
 upon the motives and passions which are the 
 main springs of human action, that we arrive at 
 the true principles upon which criminal law as 
 well as every other sort of legislative institution 
 ought to rest ; and the main use of the facts con- 
 tained in statistical tables is to correct any mis- 
 apprehension of those principles into which we 
 may fall, and by no means to supersede the 
 authority of the principles themselves. It is 
 impossible that they ever should, for in no 
 instance can it be satisfactorily ascertained, 
 how far accidental circumstances, education, 
 society and government, have contributed to 
 produce the results which oflicial returns and 
 statistical tables exhibit, and how far they 
 ought to be ascribed to the operation of ordi- 
 nary and permanent causes. This uncertainty 
 alone will always prevent laws from being 
 calculated like chances, to whatever extent the 
 data of which we have been speaking may be 
 multiplied. Political arithmetic, like political 
 economy, is extremely useful in its proper 
 
 n
 
 98 ON THE CRIMINAL LAW. 
 
 sphere : but in matters of legislation and policy, 
 if strength and justness of understanding are 
 wanting, no aid which facts or figures can 
 afford, will be found to supply the deficiency. 
 
 2. The second section of the Report relates 
 to those laws of which the committee have re- 
 commended the repeal. They consist of the 
 following acts, which the committee have 
 divided into two classes. 
 
 Class I. 
 
 1. 1 and 2 Phil, and Mary, c. 4. Egyptians re- 
 maining within the kingdom one month. 
 
 2. 18 Ch. II. c. 3. Notorious thieves in Cum- 
 berland and Northumberland. 
 
 3. 9 G. I. c. 22. Being armed and disguised in 
 any forest, park, &c. 
 
 4. Being armed and disguised in any warren. 
 
 5. Being armed and disguised in any high road, 
 heath, common, or down. 
 
 6. Being armed and disguised in unlawfully 
 hunting, killing or stealing deer. 
 
 7. Being armed and disguised in robbing war- 
 rens, &c. 
 
 8. Being armed and disguised in stealing or 
 taking fish out of any river or pond, &c. 
 
 9. Being armed and disguised in hunting in 
 his Majesty's forests or chases.
 
 ox THE CRIMINAL LAM'. 99 
 
 10. Being armed and disguised in breaking 
 down the head or mound of a fish-pond. 
 
 11. 9 G. I. c. 28. Being disguised within the 
 Mint. 
 
 12. 12 G. II. c. 29. Injuring of Westminster 
 bridge, and other bridges, by other acts. 
 
 Class II. 
 
 1. 31 Eliz. c. 9. Taking away any maid, widow, 
 or wife, &c. 
 
 2. 21 Jam. I. c. 2G. Acknowledging or procur- 
 ing 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 wound- 
 ing cattle. 
 
 5. 9 G. I. c. 22. Maliciously cutting down or 
 
 destroying trees growing, dtc. 
 0. 5 G. II. c. 30. Bankrupts not surrendering, 
 
 &c. 
 7. Bankrupts concealing or 
 
 embezzling. 
 
 8. 6 G. II. c. 37. Cutting down the bank of 
 any river. 
 
 9. 8 G. II. c. 20. Destroying any fence, lock, 
 sluice, S:c. 
 
 10. 26 G. II. c. 33. Making a false entry in a 
 marriage register, &c. five felonies. 
 H 2
 
 100 ox THE CRIiMINAL LAW. 
 
 11. 27 G. II. c. 15. Sending threatening letters. 
 
 12. 27 G. II. c. 19. Destroying bank, &c. Bed- 
 ford Level. 
 
 13. 3 G. III. c. \C). 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 recommendation given by the committee 
 to the House is, that the first of these classes 
 should be entirely repealed ; and that in all the 
 acts which are comprised in the second, the 
 punishment of death should be abolished, and 
 that transportation, or imprisonment with hard 
 labour, should be substituted in its stead. 
 
 I agree with the Committee in thinking that 
 it would be expedient to repeal Nos. 1, 2, 11, 
 and 12, of the first Class; and that Nos. 2, 6, 
 7, and 15, of the second, ought not perhaps to 
 be visited with so severe a punishment as loss 
 of life : but with respect to all the other acts 
 contained in these two classes, there is not 
 one among them which the Committee could ex- 
 pect the House of Commons to revoke without 
 mature deliberation and inquiry, and it may be 
 doubted whether a considerable proportion of
 
 OV THE CULMIXAL LAM'. 101 
 
 them ought not to be ranked among the most im- 
 portant laws now standing in the statute book. 
 Nos. 3, 4, 5, G, 7, 8, 9, and 10 of the iirst 
 class, and Nos. 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 as- 
 
 * sociatcd themselves, under the name o{ B/acIiS, 
 
 * 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 ficti- 
 
 * tious names, threatening some great violence 
 
 * if their unlawful demands should be refused, 
 
 * or they should be interrupted in or pro- 
 
 * secuted for their practices ;' and then im- 
 poses the punishment of death upon such as are 
 found guilty of any of the offences which it 
 enumerates. 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 specifically 
 re-enacted, and was at last made perpetual by 
 31 G. II. c. 42. Whether it should have been 
 worded, or its provisions limited precisely in the.
 
 102 ON THE CRIMINAL LAW. 
 
 way in M^iich we now find them, may give rise 
 to difference of opinion; but from the num- 
 ber and magnitude of the offences to which it 
 extends, the various sorts of property which it 
 protects, and the possible recurrence of dis- 
 orders of an equally formidable nature with 
 those by which it was occasioned, it would 
 in the present state of society be hazardous 
 in the extreme to repeal it, without substi- 
 tuting some general statute 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 rare 
 crime undoubtedly in modern times, and yet of 
 so revolting a nature when it occurs, that the 
 statutory penalty seems not to have been more 
 than adequate to its atrocity. It is now re- 
 pealed, and it was urged in justification of that 
 repeal, tJiat it fiiakes a distinction between persons. 
 Why should it not have done so, if there was 
 ground for such 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 abundant- 
 ly testify, in which cases of an analogous nature 
 are most frequently brought forward. But if
 
 ON THE CRIMINAL LAM'. 103 
 
 there is good ground for the objection, it might 
 easily have been removed by extending the act 
 to all women whatsoever. There is no reason 
 why it should not, for if the combination of 
 violence, contrivance, fraud, and irremediable 
 injury, can in any instance constitute a heinous 
 crime, every one of these aggravating circum- 
 stances in its most odious form here concurs 
 to do so. 
 
 Why No. 3 of Class II. should have been re- 
 pealed, is not quite manifest. It does no more 
 than enact that ' persons who have secret ac- 
 
 * quaintance 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 of- 
 
 * fenders,' shall suffer the same punishment 
 with the felon. Whatever change had been 
 made in the punishment ot the felon, would 
 therefore necessarily have extended to the 
 punishment of those persons with whom the 
 felon had secret acquaintance, and there ap- 
 pears to be no impropriety in such an arrange- 
 ment. 
 
 The next act which comes to be considered, 
 is No. 10 of Class II. which has been un- 
 accountably thrown into a heap of acts, which
 
 104 ON THE CRIMINAL LAW. 
 
 it is proposed to sweep away 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 rela- 
 ting 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 exe- 
 cuted in impenetrable secrecy, evince great 
 deliberation and contrivance, and can only 
 proceed from the basest motives of interest, 
 mahce, or revenge on the part of the perpe- 
 trators. Still further to increase their malig- 
 nity, the injury inflicted on those who are the 
 victims of them is irreparable. Most of the 
 ills to which life is subject, whatever may be 
 their nature or degree, can with the help of 
 time and patience be surmounted; but the felo- 
 nious act which robs a mother of her honour.
 
 ON THE CRIMINAL LAM'. 105 
 
 and stamps indelible disgrace upon her off- 
 spring, produces the most diversified, extensive, 
 and protracted suffering which human villainy 
 can inflict. If any weight should be thought 
 to be due to these considerations, it is hoped 
 that none of the safeguards which the legis- 
 lature has erected for protecting the integrity 
 of proofs of marriage, will without long and 
 close deliberation be destroyed. 
 
 The offence of personating out-pensioners of 
 Greenwich Hospital, which forms No. 13 of 
 Class II. must undoubtedly appear to those who 
 have no means of particularly examining the of- 
 fence, to be too severe. At the same time it is 
 but fair to observe, that unless a heavy penalty 
 were imposed, the crime would become so 
 frequent that serious loss would be sustained 
 either by the out-pensioners or the public; 
 and perhaps reasons might be adduced in its 
 behalf, which would not readily suggest them- 
 selves to any other persons than those who are 
 conversant with the public business of the 
 Hospital. 
 
 The committee also recommend that the 
 punishment of death should be removed from 
 No. 11. of Class II. The offence is, * to send 
 
 * knowingly any letter without any name sub- 
 
 * scribed thereto, or signed with a fictitious
 
 106 ON THE CRIMINAL LAW. 
 
 * 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.' 
 To send threatening letters of this and some other 
 descriptions, is an act of such cool and delibe- 
 rate malice, that the inexpediency of the 
 capital punishment ought to be convincingly 
 established, before it is either totally or par- 
 tially repealed. It is an offence which is usu- 
 ally committed against persons of feeble minds, 
 or such as are placed in solitary or unpro- 
 tected situations; and when it is recollected 
 how effectually it ruins the peace of mind of 
 those to whom they are addressed, and how 
 deeply they undermine the security and hap- 
 piness of society, there are few species of de- 
 linquency which exceed it in baseness and 
 enormity. 
 
 The only cases now remaining, are Nos. 8. 
 9, 12, and 14, of Class II. which relate to the 
 cutting down of any sea bank or the bank of 
 any river, by which 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 ; all of which are outrages of the same 
 nature with those provided against by the
 
 ON THE CRIMINAL LAW. 107 
 
 Black Act. The strongest argument in favour 
 of the first three of these enactments is, that the 
 property they protect is of a nature which no 
 foresight or vigilance can place beyond the 
 reach of danger, but must at all hours, and 
 especially in remote situations and under cloud 
 of night, lie at the mercy of every individual 
 near whom the owner dwells; — because the 
 damage done to it may be secret, instantaneous, 
 and unlimited ; — and because it evinces that 
 preparation and premeditated malice, which 
 the law of every country in Europe justly re- 
 gards as the chief aggravation of criminal 
 offences. Upon these grounds, I was induced 
 to express some degree of reluctance to the 
 repeal of the capital punishment without further 
 consideration and inquiry; but as the repeal 
 has now actually taken place, I sincerely wish 
 that no criminal courses may in future prevail 
 in any part of the country, tending to bring the 
 propriety of the abolition into question. The 
 same observations which are applicable to the 
 foregoing offences, extend to the cutting of ser- 
 ges, and also to 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
 
 108 ON THE CRIMINAL LAW. 
 
 neither plead profit nor passion in extenuation of 
 his violence, and can only be impelled to such an 
 act because he believes it will be the most poig- 
 nant injury he can do to the owner, and that a 
 course of years will be required to repair the 
 damage, if it be not irreparable; these consi- 
 derations taken together seem to mark it out as 
 one of the most outrageous 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. 
 No better instance could be adduced in con- 
 firmation of this opinion than the very case 
 on which the Committee, at 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 judg- 
 
 * ment 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
 
 ON THE CRIMINAL LA"S\\ 109 
 
 * 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 pro- 
 
 * secutor, the committing magistrate, and the 
 
 * luhole 7ieighboitrhoocI, was executed apparent- 
 
 * ly because he was believed to be habitu- 
 
 * ally 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 cer- 
 
 * tainly acted according to the dictates of their 
 
 * judgment ; but it is a case where the effect 
 
 * of punishment is sufficiently shown 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.' 
 
 That it may be seen how far the preceding 
 observations are founded in justice, the evi-
 
 110 ON THE CRIMINAL LAW. 
 
 dence of Robert Torin, Esq., the committing 
 magistrate, shall here be subjoined, who was the 
 only witness produced before the Committee. 
 This gentleman says that William Potter, the 
 man who was executed, * was a very bad cha- 
 
 * racter, and he oived a particular spite against a 
 ' miller in the neighbourhood, 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 morn- 
 ' ing 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 clergy-
 
 ON THE CRIMINAL LAW. Ill 
 
 man of the parish, and several of the inhabi- 
 tants presented a petition, and I signed my 
 name to it. What was the general cha- 
 racter of this man 1 — 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 tho- 
 rough 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 sur- 
 prised at it ; it was considered a case of 
 extreme hardship, but which was palliated 
 by the badness of his character.' — Repoi^ty 
 pp. 87, 88. 
 
 Mr. Torin seems to be mistaken in saying 
 that this man's confession took place after con- 
 viction; for the only extenuation which Mr. 
 Torin himself mentions in his Letter to Lt)rd 
 Sidmouth, p. 88, is ' the ample confession which 
 ' the culprit made soon after his commitment.
 
 112 ON THE CRIMINAL LAW. 
 
 * and which was produced at his trial.' It may 
 also be added, 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, 
 show 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 the sentence 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. Another case as atrocious as 
 Potter's, and showing how materially the de- 
 struction of growing trees may affect persons in 
 trade, as well as gentlemen and farmers, occur- 
 red at the London sessions, in December, 1818. 
 Robert Taylor having been discharged from the 
 service of Samuel Knyvett, a gardener, near 
 Hammersmith, for getting drunk, swore in ex- 
 tremely gross language that he would be re- 
 venged, bought a bill-hook and desired it to be 
 ground sharp, with which he cut down 121 of
 
 ON THE CRIMINAL LAW. 113 
 
 his master's fruit trees, part of which were of 
 the choicest apples. For this he was tried and 
 convicted ; but as it was reserved for the opinion 
 of the Judges whether the destruction of the 
 trees was such as to come within the meaninir 
 of the act : it would appear they thought not, 
 for no condemnation followed. 
 
 Bearing these corrections and additions in 
 mind, any reader who thinks the subject worth 
 examining, is requested carefully to peruse 
 the Black Act as it stands in the Statute 
 Book, Mr. Torin's evidence, and the facts 
 here produced from the records published by 
 the Committee, and then he will be able to 
 judge for himself 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 under- 
 standing of Mr. Justice Heath, the Judge who 
 tried the criminal, or Lord Sidmouth, then 
 Secretary, of State for the Home Department, 
 which the Committee appear to have unfortu- 
 nately conveyed in the very sentence in which 
 they profess to disclaim it. It is well known 
 with what patience and attention Judges on 
 the circuit examine every capital case before 
 they allow the sentence of the law to be
 
 114 ON THE CRIMINAL LAAV^ 
 
 executed : and none is submitted to the King 
 in Council which does not meet with similar 
 consideration. When the Report of the con- 
 victs under sentence is brought up, the Secre- 
 tary of State for the Home Department, as well 
 as the Lord Chancellor always are, and the Chief 
 Justice of the King's Bench, usually is, among 
 the number of the Members who attend on that 
 occasion ; and the determination to which it 
 comes upon the fate of each individual, is 
 formed with that anxiety and circumspection 
 which the nature of the subject demands. 
 In those cases in which the preservation of the 
 good order or security of society requires seve- 
 rity to be employed, the public officers upon 
 whom the infliction of it happens to devolve, 
 have their feelings sufficiently harassed in con- 
 sequence of the restraint which their judgment 
 is obliged to impose on their inclination, without 
 being at the same time accused of a want of 
 humanity, for no other reason but because they 
 dare not conscientiously indulge it. That appli- 
 cations for mercy will be made from some quarter 
 or other in favour of every individual convicted, 
 all who are acquainted with what happens on 
 such occasions are prepared to expect; but in the 
 case in cjuestion, no ground appears for animad- 
 verting upon the manner in v/hich these officers
 
 cm THE CrU.MlN'AL LAW. 115 
 
 discharg-ed the functions respectively allotted 
 to them in the administration of" justice. 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 punish- 
 ment denounced may have been sufficient to 
 prevent it. But whether the result be attri- 
 butable to the one cause or the other, it seems 
 utterly impossible to admit the principle laid 
 down at page 5 of the Report, and lately ad- 
 vanced in both Houses of Parliament as well as 
 elsewhere, that if few or no punishments for 
 any particular offence have taken place for a 
 certain length of time the punishment ought to 
 be repealed as unnecessary. Such a position 
 may appear ingenious; but it would be diffi- 
 cult to point out any which in practice it would 
 be more pre-eminently dangerous to follow. 
 When those to whom the task of legislation is 
 committed have once determined an act to be 
 a crime, and fixed the penalty which the cir- 
 cumstances of the country where it is to be 
 enforced, in their judgment require to be set 
 against it, there is no reason why it should not 
 be inflicted though it occur only once a century. 
 It is well known to those conversant with crimi- 
 nal law, that particular crimes prevail at distant 
 
 I 2
 
 IIG ON THE CRIMINAL LAW. 
 
 and unequal intervals, in certain parts of the 
 country, or among certain classes of society, 
 in a manner perfectly inexplicable. What secu- 
 rity is there 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 grow- 
 ing timber. It was, in fact, stated by Mr. 
 Curwen in the House of Commons, in the 
 end of the 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. It 
 is very short-sighted 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 society may 
 have permitted them to slumber. If this were 
 ever done, the consequence would be, that 
 whenever an emergency arose, we should find 
 the legislature passing whole piles of Acts of 
 Parliament on the spur of the moment, and 
 in a state of misapprehension, confusion, alarm, 
 or exasperation. It surely accords better with 
 the character, dignity, and interest of an en- 
 lightened people, to provide with as much 
 deliberation as human foresight will permit,
 
 ox TIIK CIIIMINAL LAW. 117 
 
 for all the accidents or diseases to which 
 the body politic is accessible, than to indulge 
 the illusion that health and quietness will 
 always last, and have the remedy to seek 
 as well as administer when the disorder has 
 actually overtaken it. 
 
 Having gone through the chief objections 
 which present themselves to the repeal of most 
 of the Statutes which are inserted in the Index 
 EA'purgatorius, which is given at page 6 of the 
 Report of the Committee, the following obser- 
 vations which are prefixed to it, may appear 
 somewhat precipitate : — ' Your Committee 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 as to any of those to 
 ' which they are about to advert.' 
 
 It is possible that many persons may not 
 deem the crimes which have now been brousrht 
 successively under consideration, of so aggra- 
 vated a nature as they have here been repre- 
 sented to be ; but it is to be hoped the objec- 
 tions which have been offered have at least 
 shown, that, instead of the repeal of the sta- 
 tutes by which they are now punished being
 
 118 ox THE CUIMIXAL LA\r. 
 
 voted as a matter of course, which the Com- 
 mittee seem to expect, there is scarcely one 
 among- them, of which the repeal would not 
 materially alter the spirit and substance of the 
 existing criminal law. If the Committee are 
 solicitous to improve it by the abolition of sta- 
 tutes which will be unanimously pronounced 
 nugatory or mischievous, they should 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, imposing severe 
 penalties on persons not being dissenters who re- 
 fuse to go to church, and which the 3d of William 
 and Mary does not repeal ; the 43d Eliz. c. 1 3, for 
 the more peaceable government of Cumberland, 
 Northumberland, Westmoreland and Durham ; 
 the 25 Hen. VIII. c. 13. imposing a penalty of 
 3^. 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 1 Hen. VII. c. 7. 
 against unlawful hunting; and 5 and 6 Edw. VI. 
 c. 4. by which every person convicted of ' draw- 
 ' ing or smiting with a weapon in a church or 
 ' church-yard, is to have one of his ears cut off, 
 ' and if the person so offending have none ears 
 ' whereby he should receive such punishment.
 
 UN TJli: CUI.MINAI. I.AM. 119 
 
 ' that then he should be marked and burned in 
 ' the cheek with a hut iron, having the letter F 
 ' therein, whereby he may be known and taken 
 
 * for fraymaker and fighter.' Such preposterous 
 enactments ought no doubt, on the first conve- 
 nient opportunity, to be abrogated; but the , 
 effect of such alterations would be more osten- 
 sible than real, and it is clearly not to improve- 
 ments of such an unimportant character that 
 the, attention of the Committee is principally 
 directed. 
 
 3. The 3d section of the Report relates to 
 larceny, which may be ranked among the most 
 difficult subjects of discussion which occur 
 in the whole range of criminal lav/. The de- 
 claration with which the Committee set out at 
 page 8, is couched in the following terms: — 
 ' In the more disputable questions which relate 
 ' to offences of more frequent occurrence and 
 ' more extensive mischief, your Committee will 
 ' limit their present practical conclusions to 
 
 * those cases to which the evidence before 
 ' them most distinctly refers.' The onlyp'^c- 
 tkal conclusion however which is to be found in 
 the Report, is to recommend the revival of 
 the three bills which were introduced by Sir 
 Samuel Romilly into the House of Commons 
 in 1810. But though this is the only practical
 
 120 ON THE CRIMINAL LAW. 
 
 conclusion which the Committee have announced, 
 the greater part of the section consists o^ prac- 
 tical observations on other capital felonies, and 
 of such selections from the evidence as the 
 Committee appear to have thought best calcu- 
 lated to prepare the minds of those to whose 
 hands the Report may come, for other practical 
 conclusions which may be proposed hereafter. 
 An opportunity for adverting to some of these 
 observations of the Committee will afterwards 
 present itself. In the mean time it will be ex- 
 pedient to confine the attention to the specific 
 measures which they have recommended for 
 adoption. 
 
 The acts which Sir Samuel Romilly wished 
 to repeal, are the 10 and 1 1 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; the 12 Ann c. 7. which 
 makes it capital to steal privately from a dwel- 
 ling house to the value of forty shillings; and 
 24 Geo. II. c. 45. which makes it capital to steal 
 from on board a vessel in a navigable river to the 
 same amount. Of the extent to which the diffe- 
 rent species of larceny are carried, and the degree 
 to which ihey disturb and deprave society, few 
 persons, except those whose attention has been 
 particularly directed to the subject, have formed
 
 ON THE CRIMINAL LAW. 121 
 
 any adequate conception. It appears from page 
 131 of the Appendix to the Committee's Report, 
 that from the years 1810 to 1818 inclusive, the 
 total number of persons committed for trial 
 for criminal offences throughout England and 
 Wales, amounted to 75,021, of which no fewer 
 than 50,595, being nearly two-thirds of the 
 whole number, were for different sorts of lar- 
 ceny alone. Nothing can show more forcibly 
 than this statement of the fact, how great a de- 
 sideratum in penal jurisprudence an effectual 
 punishment for the different varieties of this 
 kind of delinquency is, though no case can pro- 
 bably be mentioned in which it seems so difficult 
 to be devised. The acts of WiUiam, Ann, and 
 George II. which have been quoted, never could 
 have been regarded as a rational method of 
 suppressing any species of this offence. I 
 thought unfavourably of them at the time this 
 paper was originally laid before the public, 
 and subsequent inquiry and reflection has 
 strengthened that dislike to them I then felt 
 myself under the necessity of expressing. That 
 the commission of a theft to the amount of 
 five shillings from a shop or warehouse, or to 
 that of forty from a dwelling house or on board 
 a vessel in a navigable river, should subject 
 every individual who may be guilty of a felonious
 
 122 ON THE CKLMINAL LAW. 
 
 act to the punishment of death — even where it 
 is a first offence — without any circumstances of 
 aggravation — and though lighter penalties are 
 annexed to crimes of so much deeper enormity, 
 cannot be denied to be enactments conceived 
 in a spirit of indefensible severity. Perhaps no 
 laws could be pointed out from the beginning 
 to the end of the Statute book, which have so 
 much promoted perjury in jurymen, or afford 
 so much countenance to the charge of unneces- 
 sary severity which has so often been preferred 
 against the criminal code of England. It is 
 difficult to conjecture why all modification of 
 them should have been so long and strenuously 
 resisted, for though convictions under them 
 have been of extraordinary frequency, the 
 penalty annexed to them can hardly ever be 
 said to have been inflicted. Sir S. Romilly 
 has said, in the fourth page of his observations, 
 
 * that if we confine our observations to these 
 
 * larcenies, unaccompanied with any circum- 
 
 * stance 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 mentioned in the statutes, we shall find 
 
 * the proportion of those executed to those con- 
 
 * victed reduced very far indeed below that 
 
 * even of one to twenty.' His calculation was
 
 ON THE CKIMIXAL LAW. 123 
 
 far 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 through- 
 out England and Wales, from 1810 to 1818 in- 
 clusive, amounted to 119G, and the number 
 executed to 18, or something less than 1 in 66, 
 showing a disproportion still more striking than 
 the one first mentioned. It is manifest there- 
 fore that the words of these statutes could have 
 conveyed no notion whatever to any person 
 either at home or abroad, of the punishment 
 which convicted thieves in this country actually 
 suffer ; and the acts of parliament in question, 
 instead of being a terror to the 65 criminals over 
 whose heads its threateuings were for a time 
 suspended, must with greater justice have been 
 regarded as a surprise upon the 66th object 
 who became obnoxious to their vengeance. At 
 last the 10 and 1 1 of William III. was modified 
 by 1 Geo. IV. c. 117, and larceny from shops, 
 warehouses, coachhouses or stables, does not 
 now become a capital offence until the vidue
 
 J 24 ON THE CRIMINAL LAW. 
 
 stolen amounts to fifteen pounds. Perhaps it 
 would have been an improvement of this sta- 
 tute, if capital punishment had been attached 
 to larceny of a somewhat lower amount in cases 
 where peculiar trust or confidence had been 
 reposed in the prisoner, or where he had pre- 
 viously been convicted of a capital felony of 
 any description. Even as it now stands, how- 
 ever, there can be no question that it is an 
 important amendment introduced into our cri- 
 minal law. 
 
 It is to be hoped that the same mitigation 
 which was effected in 10 and 1 1 William III. 
 c. 23. by 1 Geo. IV. c. 117. will speedily be 
 extended to 12 Ann, c. 7. and 24 Geo. II. c. 45. 
 As the law at present stands, a man may be 
 proved to have stolen for any number of times 
 to the amount of 14/. 19^. from a warehouse, 
 where property is in general more unprotected 
 than in any of the other places specified in 
 these acts, and he can at most be transported 
 for life, and is often likely to escape with trans- 
 portation for seven years ; but the law declares 
 him guilty of a capital felony, and sentence of 
 death is regularly pronounced upon him, if he 
 is proved to have stolen to the amount oi forty 
 shillings from a dwelling-house or from on board 
 a vessel in a navigable river. Such an incon- 
 sistency ought never to have prevailed between
 
 ON THE CRIMINAL LAW. 126 
 
 co-existing British statutes, and it ought im- 
 mediately to be removed by softening the 
 severity of the objectionable enactments. It 
 may confidently be advanced that though steal- 
 ing from dwelling-houses and on board ships in 
 navigable rivers were subjected exactly to the 
 same punishment with stealing from shops and 
 warehouses, the security of no one species of 
 property would be in the smallest degree di- 
 minished. The returns afford very strong rea- 
 son to presume, though it does not amount to 
 conclusive evidence of the fact, that out of the 
 whole number of 119G who were capitally con- 
 victed for larceny throughout England and 
 Wales, between 1810 and 1818, not one indi- 
 vidual suffered death for any species of larceny 
 to so small an amount as fifteen pounds, unless 
 under such circumstances of aggravation as 
 might have been made an exception to the 
 general rule. The benefits resulting from that 
 further alteration of the law of larceny which 
 has now been urged, would be of considerable 
 moment. The letter of the law and the admi- 
 nistration of it would more nearly correspond, 
 the diminution it would cause in the number 
 of capital convictions would make the popula- 
 tion appear to be less profligate, the laws would 
 seem less severe, and the effect of the sentence 
 of death, which is calculated to produce so im-
 
 126 ON* THE CRIMINAL LAW. 
 
 pressive an effect in the way in which it is pro- 
 nounced in England, would be less frequently 
 thrown away in cases in which there is an ab- 
 solute certainty that it never will be carried 
 into execution. 
 
 While I cannot forbear from expressing an 
 anxious wish that the amount which subjects a 
 criminal to capital punishment for larceny, 
 should in all cases be raised much beyond what 
 it has hitherto been, I am unable to coincide 
 with those who think it would be expedient to 
 abolish it altogether. In such a country as this, 
 where personal property has accumulated to so 
 unprecedented an extent ; where vast ware- 
 houses situated in unfrequented streets and lanes, 
 are exposed to the systematic operations of 
 combined and experienced thieves ; richly fur- 
 nished shops and dwelling-houses are intrusted 
 to the care and superintendence of servants ; 
 and bills and notes are committed to the cus- 
 tody of clerks and accountants, to an amount 
 which puts it in their power to ruin whole 
 families by a single act of dishonesty ; the total 
 abolition of the punishment of death in cases of 
 larceny, would certainly be a hazardous, and 
 probably a disastrous innovation. When the 
 legislature has once fixed the point at which it 
 should attach, it might even be desirable to 
 execute it more frequently than it has lately
 
 ox Till: CRIMINAL LAW. 127 
 
 been, especially upon those wlio liavc been 
 previously convicted of the same oti'ence. No 
 offender is more incorrigible than one who 
 commits habitual depredations on the property 
 of others, and if he has not been deterred from 
 his ignominious practices, by the shame and 
 remorse which generally accompany a first im- 
 prisonment, trial and conviction, his case be- 
 comes almost hopeless; and criminal justice, 
 which is severe to the few only for the sake of 
 being merciful to the many, becomes bound to 
 put a complete and certain stop to a career, 
 the remainder of which would have been spent 
 in spreading disorder, terror and contamination 
 throughout the community. 
 
 4. The 4th and last section of the Commit- 
 tee's Report relates to the punishment of for- 
 gery, in the beginning of which is to be found 
 the following passage : 
 
 * Much of the above evidence sufficiently 
 ' establishes the general disinclination of traders 
 ' to prosecute for forgeries on themselves, or to 
 ' furnish the Bank of England with the means 
 
 * of conviction in cases where forged notes are 
 ' uttered. There is no offence in which the in- 
 ' fliction of death seems more repugnant to the 
 ' strong and general and declared sense of the 
 ' public than forgery ; there is no other in which 
 
 * there appears to prevail a greater compassion
 
 128 ON THE CRIMINAL LAW. 
 
 * for the offender, and more horror at capital 
 
 * executions.' 
 
 This language is so decided that it leads one 
 to expect nothing less than a recommendation 
 from the Committee of an immediate and total 
 repeal of capital punishment in a case where 
 they had denounced it as so peculiarly odious. 
 In the very next page, however, the qualified 
 conclusion to which the Committee have come 
 on this part of the criminal law runs thus : 
 
 * Private forgeries will, in the opinion of the 
 
 * Committee, be sufficiently and most effectually 
 
 * repressed by the punishment of transportation 
 ' and imprisonment. As long as the smaller 
 
 * notes of the Bank of England shall continue 
 ' to constitute the principal part of the circulat- 
 
 * ing medium of the kingdom, it may be reason- 
 ' able to place them on the same footing with 
 ' the metallic currency ; your Committee, there- 
 ' fore, propose that the forgery of these notes 
 
 * may, for the present, remain a capital offence; 
 
 * that the uttering of forged bank notes shall, 
 
 * for the first offence, be transportation or im- 
 
 * prisonment ; but that on the second conviction 
 
 * the offender shall be deemed to be a common 
 
 * utterer of forged notes, and shall, if the pro- 
 
 * secutor shall so desire, be indicted as such, 
 
 * which will render him liable to capital punish- 
 ' ment.'
 
 ON THE CRIMINAL LAW. 129 
 
 Into what inconsistencies able men some- 
 times fall when they permit themselves to ex- 
 press their opinions on perplexed subjects, in 
 an inconsiderate or vehement manner! It is 
 impossible that these two passages can stand 
 together. The first of them ought perhaps to 
 be judged of rather by the rules of rhetoric than 
 of logic ; but the second conveys a recommen- 
 dation, the full effect of which, the Committee 
 itself perhaps did not completely comprehend. 
 To ascertain the effect of that alteration in the 
 law of forgery which the Committee have pro- 
 posed, it should be known what proportion the 
 persons executed for forging or uttering forged 
 Bank of England notes, bear to those executed 
 for forging or uttering promissory notes or other 
 instruments of a private nature. There is no 
 document to be found among those printed by 
 the Committee from which that proportion can 
 be exactly ascertained. In the elaborate tables 
 made out by Mr. Evans for the county of Lan- 
 caster, which are printed at page 224 of the 
 Appendix to the Report, the offences o{ forging 
 and uttering bank notes, which must of neces- 
 sity mean Bank of England notes as no other 
 circulate in Lancashire, are entered in a sepa- 
 rate column from those o^ forging and uttering 
 
 K
 
 130 ON THE CRIMINAL LAW. 
 
 forged bills and promissory notes, which cannot 
 well mean any thing else than bills and promissory 
 7iotes of a private nature. The number of ex- 
 ecutions under the first of these heads between 
 the years 1798 and 1818, amounts to 48; while 
 those under the second amount only to 5, or 
 1-lOth part of the whole. If this deduction is 
 just, it shows that 9-lOths of all the executions 
 which took place in Lancashire, were at the 
 prosecution of the Bank of England. It is also 
 stated by the Committee, at page 24, that not 
 more than two persons were committed to 
 Newgate in 1818 for forgery on private indivi- 
 duals, while it appears from the tables which 
 are to be found at page 144, that no fewer than 
 55 were committed in London and Middlesex in 
 that year for forging and uttering bank notes, 
 and 97 for having forged bank notes in their pos- 
 session. As far as any conclusion can be drawn 
 from these premises, it shows the disproportion 
 between prosecutions for forgery at the instance 
 of the Bank of England and those which are 
 carried on at the instance of private persons to 
 be much greater than it is above stated to be. 
 The evidence adduced by the Committee itself 
 to prove the reluctance of private persons, and 
 especially of bankers, to prosecute for this 
 offence, renders it highly probable, that the
 
 ON THE CRIMINAL LAW. J31 
 
 disproportion between Bank of England prose- 
 cutions for forgery and those at the instance of 
 private persons, will not be found in other 
 parts of the kingdom to be materially different 
 from what it seems to be in Lancashire and 
 London. It may be replied, however, that, 
 supposing the proportion here given to be cor- 
 rect, it still remains undetermined how many 
 of the executions procured by the Bank of 
 England wevejbr lUteriiif^ forged Bank of Eng- 
 la?id notes Jar the first time, which offence the 
 Committee propose should no longer continue 
 capital. There is strong reason however to con- 
 clude, that if there are any executions at all for 
 uttering forged Bank of England notes for the 
 first time they are exceedingly few in number. 
 The tables at pages 128 and 132 of the Appci>- 
 dix, show the executions for forgery throughout 
 Enoland and Wales between 1810 and 1818 to 
 have been to the convictions as 143 to 908, or 
 less than 1 execution for 6 convictions; and 
 Mr. Shelton, at page 23 of the Evidence, says 
 that two indictments are usually preferred by 
 the Bank, one for disposing of the forged note, 
 which is capital, and the other for being in pos- 
 session of the same note without lawful excuse, 
 which is not capital ; and that the parties prefer 
 pleading guilty to the minor charge, ' as they 
 K 2
 
 132 ON THE CRIMINAL LAW. 
 
 * are aware that in 9 cases out of 10 the Bank 
 ' will not prosecute upon the capital charge.' 
 As the bank is so backward in prosecuting on 
 the capital charge, and so small a proportion 
 of the whole number convicted are executed, 
 there is reason to believe, from the character 
 and capacity of those intrusted with the admi- 
 nistration of justice, that the worst cases are 
 selected for the severest punishment, and con- 
 sequently that very few of those who suffer 
 capitally have been convicted of uttering forged 
 Bank of England notes for the first time. 
 Whatever that proportion may be, it cannot well 
 exceed 1-lOth of the whole number executed ; 
 and subtracting this from the 9-lOths already 
 mentioned, there still remain 8-lOths of the 
 whole number of persons executed for forgery 
 in England and Wales, who appear to have been 
 convicted as actual forgers of Bank of England 
 notes, or for having been convicted more than 
 once of uttering them. It is further to be col- 
 lected from page 132 of the Appendix, that the 
 whole number of persons executed annually for 
 forgery throughout England and Wales, taking 
 the average of the 14 years between 1805 and 
 1818, has been 15; 8-lOths of whom amount 
 exactly to 12; so that, had Bank of England 
 notes continued to form the same proportion of
 
 ON THE CRIMINAL LAW. 133 
 
 the circulating paper of the country which they 
 did in 1819, the result of the modification of 
 the existing laws respecting forgery recom- 
 mended by the Committee would have been, 
 that 3 out of every 15 persons who might in 
 future be convicted for forgery would have 
 escaped with transportation or imprisonment, 
 while the other 12 would have continued to be 
 consigned to death as formerly, for an offence 
 respecting which the Committee itself has pro- 
 nounced that there is none ' in which the in- 
 
 * fliction of the punishment of death seems so 
 ' repugnant to the strong and general and de- 
 
 * clared sense of the public, and that there is 
 ' no other in which there appears to prevail a 
 
 * greater compassion for the offender, and more 
 
 * horror at capital executions.' Should there be 
 any misstatement or miscalculation in any part 
 of this deduction, the inferences drawn from it 
 must of course fall to the ground; but if there 
 really is that discrepancy which has been sup- 
 posed between the two extracts made from the 
 Report, it furnishes a striking illustration of the 
 mischief which may arise from the introduction 
 of overcharged expressions into any part of the 
 proceedings of a legislative Committee. Such 
 language is sure to catch the attention of many 
 who overlook or disregard the limitations or
 
 134 ON THE CRIMINAL LAW. 
 
 explanations with which it is afterwards cou- 
 pled ; and, by the appeal which it makes to the 
 passions, is in the highest degree unfavourable 
 to the undisturbed exercise of the understand- 
 ing, which ought then to be alone consulted. 
 
 The point which has now been brought under 
 discussion, is not the only one in which a 
 strong though unperceived bias seems to have 
 influenced the proceedings of the Committee. 
 Through the whole of their inquiries with regard, 
 to forgery, a want of circumspection is observ- 
 able, as well as a degree of deference shown 
 to temporary clamour, which it would have been 
 better for persons in their station not to have 
 encouraged. Nothing else could have led the 
 Committee to attach so much importance to 
 the management and result of certain Bank 
 prosecutions for forgery which took place in 
 1818. The real state of the facts which gave 
 rise to the popular feeling which was then dis- 
 played, was probably not generally known, 
 and at any rate had scarcely any perceivable 
 connexion with the main question about the pro- 
 priety of capital punishment for that offence. 
 Exaggerated statements of the number of those 
 who suffer for forgery or uttering forged notes, 
 at the prosecution of the Bank of England, were 
 circulated and believed ; and even though no
 
 ON THE CRIMINAL LAW. 135 
 
 prejudice had in that way been excited, it has 
 been established as satisfactorily as the nature 
 of the case allows, that the acquittals which then 
 took place can with no propriety be considered 
 as evidence of any disinclination on the part of 
 jurors to convict capitally for that offence. 
 Upon an examination of the whole circum- 
 stances connected with the occurrences which 
 then took place, little doubt will remain in the 
 mind of any unprejudiced inquirer, that the 
 acquittals arose from an unaccountable refusal 
 of the Bank to produce the usual legal proofs of 
 guilt ; from a notion generally entertained that 
 the Bank had not taken suitable pains to secure 
 its notes against imitation ; and also from a be- 
 lief, which obtained credit among certain classes 
 of the community, whether well or ill-founded, 
 that an unfair selection was made of the of- 
 fenders against whom the Bank officer pro- 
 ceeded upon the capital charge. It was ac- 
 cordingly found that as soon as the Bank ceased 
 to arrogate the prerogatives which it then 
 usurped, and to conduct itself like any other 
 corporation, the attacks then directed against 
 prosecutions for forgery immediately ceased, 
 and the objections now made to capital punish- 
 ment for that crime, are urged with the calm- 
 ness and moderation which will best promote
 
 13G ON THE CRIMINAL LAW. 
 
 the advancement of truth in every kind of intri- 
 cate discussion. 
 
 The Committee have also conceived it to be 
 part of their duty to make minute inquiries into 
 the effect which the execution of criminals has 
 upon prisoners and spectators, and into the 
 judgment which convicts pronounce on the 
 comparative degrees of their own and each 
 other's guilt. There is no doubt that such 
 a course of investigation may disclose a num- 
 ber of facts which an age delighting in curious 
 topics of inquiry may be pleased to learn, but 
 it is one which requires great skill in the 
 management of it, and which, to persons pos- 
 sessing that acquaintance with the business and 
 feelings of mankind which the House of Com- 
 mons are known to do, could convey so little 
 practical instruction, that the Committee would 
 have judged better if they had never entered 
 upon it. With regard to public executions, 
 it is notorious that, in all ages and countries, 
 the good effects produced upon those whom 
 curiosity has gathered together to witness 
 them have been extremely limited. Their 
 utility consists more in the tone they give to 
 conversation in the neighbourhood, the cir- 
 cumstances by which they are preceded and 
 accompanied, or the lessons of parents, guar*
 
 ON THE CRIMINAL LAW. 137 
 
 dians, or masters, addressed to those under 
 their charge, to which they afford occasion, 
 than to any effect which they produce at the 
 moment. It is true, that in districts where 
 population is thin and orderly, and executions 
 of rare occurrence, a considerable part of the 
 spectators may retire to their homes with im- 
 pressions of salutary terror; but no man believes 
 that this is now the case in almost any part 
 of England, and few will question the correct- 
 ness of the opinion expressed by Mr. Brown, 
 the present Keeper of Newgate, at page 68 — 
 
 * that many of those who attend executions 
 
 * are of the most depraved and abandoned 
 
 * character.' It however happened in a debate 
 in the House of Commons, on the subject of 
 capital punishment, which took place in 1818, 
 that an exclamation of the crowd assembled in 
 front of the Old Bailey to witness the execution 
 of a man who was convicted of robbery in 1807, 
 was treated as an unequivocal indication of 
 the sentiments generally entertained respecting 
 the undue severity of the present administra- 
 tion of criminal law. It is fair to make allow- 
 ance for expressions which a speaker in the 
 warmth of argument may unintentionally be 
 led to employ, but if it should really be 
 imagined that what takes place on such an 
 occasion is any criterion of public opinion, the
 
 138 ON THE CRIMINAL LAW. 
 
 proposition cannot possibly be admitted. With 
 just as much propriety might the shouts of 
 applause with which the rabble at an election 
 in Covent-Garden hail the delivery of the 
 wildest harangues in favour of popular rights, 
 be quoted as a test of the political opinions 
 which influence the great body of electors 
 throughout the empire. Instead of preventing 
 crimes, the evidence given before the Com- 
 mittee leads one, on the contrary, to believe that 
 executions have a marked tendency to increase 
 them, and that it would be better if they took 
 place within the prison walls than without 
 them, were it not that publicity, in every step 
 of the administration of justice, is the best 
 security that can be given that it will be dis- 
 pensed with wisdom or impartiality. Neither is 
 it obvious how prisoners should be able to form 
 a better estimate of their own or their neigh- 
 bours' guilt, than the mobs who assemble at 
 an execution. One can point out many reasons 
 why the judgment of criminals should be worse 
 than that of those who have never swerved 
 from rectitude, but none why it should be 
 better. It is to be feared that most of those 
 who become criminal themselves, or have been 
 compelled to associate with criminals, lose that 
 abhorrence of guilt, which is felt by the un- 
 corrupted part of society, without acquiring
 
 ON THE CRIMINAL LAW. 139 
 
 any peculiar capacity for measuring its degrees 
 of enormity. That they should make many 
 shrewd and correct observations, both on them- 
 selves and their companions in vice, is exceed- 
 ingly natural; but that they should evince 
 extraordinary impartiality or delicacy in their 
 moral perceptions, is a point which has not 
 been, and, it is believed, cannot be established. 
 The Rev. Mr. Ruell (p. 70) says, that convicts 
 
 * are willing to make general confessions of 
 
 * guilt, but discover a very strong propensity 
 
 * to extenuate their individual offences.' The 
 Rev. Mr. Cotton (p. 62) confirms the fact, and 
 gives an example of the acuteness with which 
 in their own case, convicts are capable of 
 urging that extenuation. That a considerable 
 portion of them before execution unburthen 
 their minds with great sincerity and candour, 
 there is no reason to disbelieve ; but so far is 
 it from being true, as the Committee seem to 
 suppose, that unreserved assent ought to be 
 yielded to the general correctness of their 
 statements of fact and opinion, that, in a large 
 proportion of instances, there is ground to 
 apprehend that not the smallest reliance is to 
 be placed upon their most solemn dying decla- 
 rations. 
 
 Having detailed the reasons from which
 
 140 ON THE CRIMINAL LAW. 
 
 it seems to appear, that the opinions which 
 the Committee have pronounced upon the 
 punishment for forgery are neither deliberate 
 nor consistent, and that a large portion of 
 the information which they have collected on 
 the subject may be laid aside as of little 
 real use, the remainder of the evidence, con- 
 sisting of the testimony of 4 merchants and 8 
 bankers, and the only portion of it from which 
 any sound inference respecting the state of the 
 public mind on that head can be drawn, ought 
 now to be considered ; but as these gentlemen 
 neither confine themselves exclusively to for- 
 gery, nor to a declaration of their own senti- 
 ments on the topics about which they have been 
 examined, it may be more convenient to post- 
 pone the consideration of their evidence until it 
 is taken in conjunction with that of the other 
 witnesses who have been called to prove the 
 general feelings of the people of England with 
 respect to our present criminal law. 
 
 II. 
 Having taken a view of each of the sections 
 into which the Report is divided, and of the 
 alterations recommended in it for adoption, the 
 next subject into which it was proposed to 
 inquire, was the further changes in the Criminal 
 Law which the Committee have in prospect.
 
 ON THE CRIMINAL LAW. 141 
 
 This forms a branch of the Report in no 
 respect less important than that which has been 
 just considered. * The object of the Com- 
 ' mittee,' they say, at page 3, * has been to 
 
 * ascertain, as far as the nature of the case 
 
 * admitted, by evidence, whether, in the pre- 
 
 * sent state of the sentiments of the people of 
 
 * England, capital punishment in most cases of 
 
 * offences unattended with violence, be a ne- 
 
 * cessary or even the most effectual security 
 
 * against the prevalence of crimes.' They add, 
 at page 7, in speaking of the present state of 
 the punishments of transportation and impri- 
 sonment, that * in the more improved condi- 
 
 * tion in which the Committee trust that all the 
 
 * prisons of the kingdom will soon be placed, 
 
 * imprisonment may be hoped to be of such a 
 
 * nature as to answer every purpose of terror 
 
 * and reformation.' The end and object of the 
 Committee, or of its leading members, is thus 
 distinctly announced, and unless the meaning 
 of their expressions has been misapprehended, 
 they seem to imply the following two distinct 
 propositions: — 1. That the body of evidence 
 annexed to their Report satisfactorily proves 
 the general feeling of the people of England 
 with respect to the present state of the criminal 
 law; and 2. That the punishment of death
 
 142 ON THE CRIMINAL LAW. 
 
 may hereafter be completely superseded by 
 the judicious application of transportation and 
 imprisonment. Each of these points it will be 
 necessary to examine separately. 
 
 1. The first proposition laid down by the 
 Committee seems to be, that the body of evi- 
 dence annexed by the Committee to their 
 Report, satisfactorily shows the prevailing feel- 
 ing of the public to be adverse to the spirit and 
 substance of the present criminal laws. Of 
 these laws it is by no means the object of the 
 present observations to express an indiscrimi- 
 nate admiration, and on that account some 
 anxiety is felt to avoid the imputation of any 
 desire to under-rate the labours of the Com- 
 mittee to improve them. Of the importance of 
 the documents contained in the volume of which 
 they have put the House and the public in pos- 
 session, a distinct opinion has already been 
 delivered. It may here be added, that the 
 minutes of evidence comprise a number of 
 detached facts and observations, of which con- 
 siderable use may be hereafter made; along 
 with the testimony of four five witnesses, whose 
 suggestions and information on various branches 
 of criminal law are of indisputable value. Be- 
 yond this there seems no reason to go, and pro- 
 fessing all proper respect for the reputation and
 
 ON THE CRIMINAL LAW. 143 
 
 talents of many gentlemen whose names appear 
 on the Committee, or for those among them 
 who are understood to have conducted its 
 proceedings, there appears good cause for con- 
 sidering the evidence which it has collected, 
 as indistinct, partial, and inconclusive. 
 
 By indistinctness, is meant that difficulty 
 which the reader finds in ascertaining the pre- 
 cise opinion of any single witness, or the 
 result of the testimony of the whole, on some 
 of the most important matters under investi- 
 gation. We are presented with a mass of facts, 
 discussions, and conclusions, all of them un- 
 questionably bearing upon criminal law, but 
 the exact import of which it is extremely 
 perplexing to discover. The Committee have 
 not always kept in mind, that their chief ob- 
 ject was to discover the general sentiments of 
 the people of England respecting the whole 
 or the most material of the criminal statutes 
 now in force ; and in an inquiry so much more 
 extensive and important than those which the 
 House of Commons usually delegates to one 
 Committee of its members, the questions and 
 answers could not have been rendered too pre- 
 cise or particular. It might even have been ad- 
 visable to have had a list of common interroga- 
 tories, to be put to each of the witnesses as they
 
 144 ON THE CRIMINAL LAW. 
 
 presented themselves before them. Instead of 
 this, the evidence of Sir Archibald Macdonald, 
 Mr. Montagu, Mr. Harmer, and even that of 
 Mr. Evans, though by far the most important 
 which has yet been laid before the pubhc on 
 the subject, shows the extreme latitude in 
 which the Committee indulged the witnesses 
 in the order and form of their communications. 
 The very first question put to Mr. Montagu 
 is expressed in the following and indefinite 
 terms, ' The Committee wish to know what part 
 
 * of your extensive observations of the admi- 
 ' nistration of the Criminal Laws you are now 
 'ready to communicate to the Committee?' 
 To which Mr. Montagu is pleased in return to 
 make this courteous and accommodating reply, 
 
 * I am willing to communicate any thing and 
 
 * every thing I know that they think proper to 
 
 * request of me ;' and then proceeds to give a 
 compressed statement of the scattered infor- 
 mation which he possessed upon the subject, 
 in consequence of his reflection upon it for, he 
 rather thinks, upwards of twenty years. Yet, 
 strong as the reasoning of Mr. Montagu is 
 against capital punishment in the abstract, he 
 has not explicitly stated his opinion on any 
 specific crimes, except those of forgery, larceny 
 without violence, and a bankrupt's fraudulent
 
 ox TUL CKIMINAI. LAW. 145 
 
 concealment of his effects from his creditors. 
 Most of those witnesses on the other liand,\vho 
 do not indulge in general discussion, but are 
 satisfied with returning answers to the questions 
 put to them, after expressing unqualified gene- 
 ral disapprobation of the severity of the law as 
 it now stands, very often add, that except in 
 certain cases which they have mentioned, and 
 some others, or witli some exceptions, or i)i atrocious 
 cases, capital punishment ought not to be in- 
 flicted. In all probability, no two persons will 
 agree upon the exact offences which ought to 
 be comprehended under these expressions, and 
 the witness would most likely have been him- 
 self embarrassed if he had been requested to 
 enumerate them. A great deal of time and 
 trouble is no doubt saved to the Committee by 
 the use of vague and general language, but it 
 detracts extremely from the value of evidence 
 when it comes to be minutely examined. It is 
 not wished that a high degree of importance 
 should be attached to that defect in the evidence 
 which has been now pointed out. It is only 
 mentioned as one which can hardly fail to be 
 constantly and perceptibly experienced by 
 every one by whom the evidence is attentively 
 perused. Wherever any such imperfection 
 occurs it keeps the mind of the reader con- 
 
 L
 
 14G ON THE CRIMINAL LAW. 
 
 stantly on the stretch, in order to discover 
 whether he understands the witness or the wit- 
 ness understands himself, and ultimately injures 
 the weight and satisfactoriness of the testimony 
 in which it is discernible. 
 
 The next objection to the evidence is, that it 
 is partial. In making this observation on the 
 depositions made before the Committee on Cri- 
 minal Laws, it is doing no more than justice to 
 acknowledge, that in no part of the world and 
 on no subject is it possible to assemble wit- 
 nesses more distinguished for intelligence and 
 veracity than in this country, and no where has 
 more valuable information been collected than 
 by some of the committees which have been 
 appointed by the Houses of Lords and Com- 
 mons within the last thirty years. No other 
 instances need be quoted in support of this than 
 the Committee of the House of Commons on 
 the Orders in Council in 1807, on the Leather 
 Trade and on Bullion in 1812, on the limitation 
 of hours of work in Cotton Manufactories in 
 1817 and 1818, that on the Climbing Boys' Bill 
 in the House of Lords in 1818, and that in the 
 House of Commons on the State of the Roads, 
 which sat in the course of the same year. But 
 a just estimate of the powers of a Committee 
 of either House in the investigation of a subject,
 
 ON THK CKI.MINAI. LAW. 147 
 
 can only be made when a considerable number 
 of the members who take an active part in its 
 proceedings differ in opinion on the points 
 which they are delegated to examine. Where 
 this is not the case, the member who moves for 
 the committee, along with two or three friends 
 whom he procures to be nominated upon it, 
 because he knows their views on the subject 
 assimilate with his own, have the uncontrouled 
 management of the inquiry, and, by selecting 
 witnesses known to be favourable, and omitting 
 those who are adverse, they obtain a body of 
 facts or opinions which in reality are nothing 
 else than the strongest ex-parte statement 
 which can be produced in support of the mea- 
 sures which the report of the committee is sure 
 to recommend. On the present occasion, the 
 Committee consisted of the following persons : 
 Sir James Macintosh, chairman, Mr. Bathurst, 
 Mr. Scarlett, Mr. Attorney General, Mr. Wil- 
 berforce, Lord Nugent, Mr. Solicitor General, 
 Mr. Abercrombie, Mr. George Granville Vena- 
 bles Vernon, Mr. Alderman Wood, Sir Charles 
 Mordaunt, Lord Althorpe, Dr. Phillimore, Mr. 
 Finlay, Mr. Fowell Buxton, Mr. Courtenay, Mr. 
 Brougham, Mr. Williams W^ynn, Mr. Littleton, 
 Mr. Macdonald, Mr. Holford, and Lord John 
 Russel ; many of them as enlightened men as 
 
 L 2
 
 148 ON THE CRIMIXAL LAW. 
 
 could have been intrusted with the examination 
 of a serious subject. 
 
 The names arc so numerous in conformity it is 
 presumed with estabUshed parliamentary usage, 
 though there appears to be no constitutional 
 necessity why the practice should continue the 
 same, when circumstances have so materially 
 changed. In former days, when debates were 
 rare, business slack and inquiries superficial, it 
 might have been thought proper to appoint nu- 
 merous members to serve on one committee by 
 way of giving each of them some visible duty 
 to perform; but when the business which the 
 House has to dispatch is perhaps ten times as 
 great as it was a hundred years ago, it seems 
 reasonable that a corresponding division of la- 
 bour should take place, and that a host of 
 names should not be enrolled on one commit- 
 tee, while it is certain to happen, as it is said 
 to have here done, that in point of efficiency 
 the greatest part of them will prove complete 
 non-entities. The Report made, however, is still 
 ostensibly the Report of the whole Committee, 
 and yet while every one of the members of the 
 House individually taken, knows perfectly well 
 by what individuals it has been framed, and how 
 it ought to be estimated, the whole of them, 
 when acting in their collective capacity, are wil-
 
 ()\ IllE CHIMIN AL LAW. ]40 
 
 ling to persuade themselves, the House of Lords, 
 and the public at large, that a Report so drawn 
 up ought to possess all that weight and autho- 
 rity which the united talents and experience 
 t>f those whose names are annexed to it could 
 have commanded, if they had given it their 
 undivided attention. 
 
 Whether it was prudent for the House to 
 grant that sort of committee which was ap- 
 pointed, it is foreign to the present purpose to 
 inquire ; but having once been granted, the next 
 best course to have pursued, would have been 
 to enter at once upon a full and fair examina- 
 tion of all the matters referred to the Commit- 
 tee, however laborious the imdertakino: misfht 
 have proved. There is every appearance, how- 
 ever, that this was not adopted, and that the 
 mover of the Committee and his friends have 
 had the uncontrouled guidance of its pro- 
 ceedings, while those members of it who in 
 private might not approve of the line which 
 was adopted, have yet, by neglecting to attend 
 or interfere, permitted a volume of testimony to 
 go forth to the world, which will have produced 
 a deep and extensive effect before it can be 
 either explained or contradicted. If there are 
 any persons who think that one or two votes of 
 the House of Commons, or that both Houses
 
 150 ON THE CKIMIXAL LAW. 
 
 of Parliament together, can place things on the 
 same footing on which they stood before this 
 inquiry began, they will find themselves egre- 
 gioiisly mistaken. That the minds of the wit- 
 nesses examined were not, in general, in that 
 perfectly unbiassed state which the object of 
 the Committee strongly required them to have 
 been, will be denied by few who are willing 
 to undergo the labour of fully and deliberately 
 perusing it. The only witnesses whose testimony 
 can be regarded as perfectly neutral, are Sir 
 Archibald Macdonald, Mr. Evans, Mr. Carr, 
 and those gentlemen who were merely called 
 upon to present returns to the Committee, or 
 whose evidence in consequence of the situation 
 they hold in criminal courts or about prisons 
 and houses of correction, could not easily have 
 been dispensed with. With regard to the rest, 
 their evidence is undoubtedly entitled to much 
 consideration. It is only alleged to be an ob- 
 vious conclusion from the whole tenor of their 
 examinations, that they are strenuous abettors 
 or propagators of a certain set of opinions, the 
 soundness and prevalence of which, were the 
 very points which the Committee had to deter- 
 mine ; and, being therefore in some degree par- 
 ties as well as witnesses, their testimony can- 
 not justly have as much weight as that of
 
 ON THE CllIiMlXAL LAW. 151 
 
 persons of the same degree of understandin<,^ 
 and veracity would have deserved, who had 
 never taken any active interest in the sub- 
 ject. 
 
 Neither have the Committee informed us, 
 which one would think it was natural for them 
 to do, by what means they assembled a cloud 
 of witnesses whose opinions so exactly coin- 
 cide ; the selection of whom seems, from their 
 habits, place of abode, and profession, to have 
 been so capricious ; and between whom and the 
 Committee such constant harmony of sentiment 
 prevailed, that when on one occasion (page 24) 
 it was disturbed by Mr. Shelton, clerk of the 
 arraigns at the Old Bailey, who appears hostile 
 to some doctrines respecting criminal law, the 
 impatience into which the Committee seem to 
 have been betrayed marks the unwelcomeness 
 and rarity of such an occurrence. Unless the 
 greater part of them are members of the society 
 for the improvement of prison discipline, or 
 linked together by some bond of connection, 
 social or rehgious, it is inexplicable how the 
 Committee could have alighted on so many in- 
 dividuals so admirably adapted to their pur- 
 pose. If any such cause of union exists, there 
 would have been no harm in disclosing it. It 
 is the concealment of it, on the contrary, which
 
 152 0\ THE CRIMINAL LAW. 
 
 creates distrust ; for we naturally suspect the 
 legitimacy of the end when we are denied all 
 explanation of the manner in which the means 
 are put in motion which we see at work for its 
 accomplishment. Besides the inference which 
 a general view of the evidence affords, that 
 some sort of understanding or other exists 
 among the greater part of those who gave it, it 
 presents certain coincidences and peculiarities 
 of appearance, which strongly tend to confirm 
 the presumption. At page 65, Mr. John Smith 
 alludes to conversations he has had with Mrs. 
 Fry ; and again, at page 64, he speaks of de- 
 stroying forged instruments, which may be the 
 same which Mr. William Fry, at page 74, and 
 Alderman Wood, at page 86, allege to have 
 been swallowed by the person forged upon. 
 Another circumstance of the same sort occurs 
 at pages 86 and 87, which contain the exami- 
 nations of Alderman Wood and Mr. Wilkinson, 
 a merchant m the city. The first question put 
 to Mr. Wilkinson is, ' Have you had any ex- 
 ' perience on the subject in question?' To 
 which he replies, ' I can bear out the assertion 
 ' of Alderman Wood,' alluding to reluctance to 
 prosecute ; and then gives an instance of the 
 refusal of his own firm to prosecute, though 
 robbed of 1000/. This is the whole of Mr.
 
 ON THE CUI.MIXAL LAW. 153 
 
 Wilkinson's deposition. lie is, however, after- 
 wards asked, ' Do you happen to have heard 
 
 * any thing- of the same sort from persons among 
 ' whom you live?' To this he answers, * Oh 
 
 * dear ! yes. Not expecting to be examined, I 
 
 * cannot call to mind particular instances; but 
 
 * J have observed aj'eneral unwillintifness where 
 
 * the consequences were so serious as death.' 
 How then came Mr. Wilkinson to be examined 
 at all ? We are obliged to suppose either that 
 the Committee converted a gentleman, who 
 happened to walk into the room in which they 
 were sitting, into a random witness, or that in- 
 stances of unwillingness to prosecute were so 
 rare, that Alderman Wood had prevailed upon 
 him to walk down to Westminster to make an 
 offering of his fact at the bar of the Committee 
 on Criminal Laws. The case of Mr. .Johnson, 
 at page 100, is still more curious. The first 
 words addressed to him by the Committee are 
 these : ' You were going to relate a case which 
 
 * occurred to yourself connected with the sub- 
 
 * ject of the present inquiry.' Unless Mr. John- 
 son had begun to answer before any question 
 was asked, or it had been arranged by some of 
 the parties concerned, that at a certain stage 
 of the proceedings of the Committee the case 
 which occurred to him should be related, this
 
 154 ON THE CRIMINAL LAW. 
 
 part of the evidence is utterly unintelligible. 
 Other incidents occur in difterent parts of the 
 Minutes which are equally unaccountable. 
 
 Even the manner and form of putting the ques- 
 tions is remarkable. It rarely happens that 
 they are so expressed as to involve an aggra- 
 vated case of the offence inquired about, to 
 show what character an offender previously 
 bore, or the shock which society or commerce 
 might sustain should the multiplication of any 
 class of crimes follow the abolition of capital 
 punishment. From the vague and distant man- 
 ner in which they are proposed, it looks as if 
 the Committee had sat in perpetual fear of ob- 
 taining an answer or detecting a fact unfavour- 
 able to an alteration of the existing law. Mr. 
 Hobler, at page 84, had said a good deal about 
 prosecutors forfeiting their recognizances rather 
 than prosecute ; and Mr. Harmer, at page 108, 
 roundly asserts that he had known them * fre- 
 
 * quently forfeiting their recognizances.' Mr. 
 Shelton, who, from the length of his experience 
 at the Old Bailey, must know more on the sub- 
 ject than almost any other person, in reply to 
 an interrogatory to the same effect, answers, 
 
 * No, I do not recollect one.' The contradiction 
 between these two answers is as direct as can 
 be conceived ; and a reference to the Exche-
 
 as THE CRIMINAL LAW. 155 
 
 qiier Office, where estreats are returnable, 
 would at once have settled to which of the two 
 statements credit ought to be yielded. The 
 Committee did not think proper to make it, 
 though it was well worth their while, both on 
 account of the importance of the fact itself, and 
 of its effect on the testimony of one or other of 
 the witnesses. The following extraordinary 
 query is also addressed by the Committee to 
 Sir Archibald Macdonald. ' The people of 
 ' England, being as moral and religious a peo- 
 
 * pie as any in the world, do you think that the 
 
 * phenomenon of the number of crimes results 
 
 * from the severity of the law?' It is impossi- 
 ble to conceive the beginning and end of a 
 question to be more completely at variance. If 
 the people of England are really as moral and 
 religious as any in the world, the extraordinary 
 number of crimes which they are at the same 
 moment assumed to commit, appears, to com- 
 mon apprehension, to be not only a phenome- 
 non, but an impossibility. That the higher and 
 especially the middle classes in England are as 
 moral and religious a people as any in the 
 world may perhaps be true, though these are 
 points on which, of all others, it becomes us to 
 think and speak with diffidence; but with re- 
 spect to the present state of a large proportion
 
 156 ON THE CRIMINAL LAW. 
 
 of the population, if any one, after comparing 
 them with those of the same rank in many other 
 nations in Europe, should still persist in main- 
 taining their equality, the number of crimes is the 
 fact which of all others would most effectually 
 refute the supposition. But it was not to in- 
 dulge in refinements of criticism that the ques- 
 tion has been quoted. It has been pointed out 
 to the reader's attention, because the terms 
 in which it is couched, evince a decided par- 
 tiality in the minds of the Committee at a very 
 early period of their sittings, which augured ill 
 for the candid prosecution of the inquiry. But 
 they have done more than this. They have not 
 only availed themselves, to the utmost, of wit- 
 nesses who are favourable to the extreme miti- 
 gation of the penal code, but they must inten- 
 tionally have avoided all such as they believed 
 to be of an opposite opinion. On many points 
 they could not but know that diversity of opi- 
 nion prevailed : their own witnesses have re- 
 peatedly averred it ; and the Report itself 
 involves the existence of the fact. Mr. Barnett, 
 at page 83, after declaring himself hostile to 
 capital punishment for forgery, adds, ' there 
 * are bankers who hold different opinions.' 
 Jennings, page 105, alludes to * many societies 
 ' for the prosecution of felons in various parts
 
 ON Tin: (UI.MIN'AL LAW. 157 
 
 * of Somersetshire ;' and Mr. Garrett, at the 
 bottom of the same page, speaks of the objec- 
 tion to capital punishment as hitherto only 
 
 * very generally diffusing itself among all classes.' 
 There could, therefore, have been no difficulty 
 in bringing before them some who disapprove of 
 any rapid or fundamental change in our ])resent 
 law; every member of the Committee could pro- 
 bably have mentioned scores of bankers and 
 merchants who do so ; and it would have been 
 manly and becoming to hear what some of them 
 had to say in justification of their sentiments. 
 Should it be alleged that the Committee were 
 at liberty to choose whatever witnesses and 
 mode of examination they judged most expe- 
 dient for effectuating their object, there can be 
 no doubt that, under other circumstances, this 
 would have been an unanswerable vindication. 
 Some of the noblest victories ever gained by 
 wisdom and humanity over ignorance and pre- 
 judice, have been achieved by the perseverance 
 of a few individuals, whose separate or united 
 efforts have at last produced in the public mind 
 a conviction of practical or speculative truths, 
 which it had previously denied or disregarded. 
 But in those instances the point proposed was 
 to do that, which is assumed in the case before 
 us, to be already done. The duty delegated to
 
 158 ox THE CRIMINAL LAW. 
 
 the Committee by tlie House, and which they 
 themselves have distinctly recognized, was to 
 prove what the existing sentiments of the 
 people of England respecting criminal punish- 
 ments at this time are, and in no respect to 
 convert the Committee itself into an engine for 
 changing such sentiments into what in their 
 apprehension they ought to be. On the purity 
 of the motives of the Committee no reflection 
 is intended to be thrown, but it is matter of 
 regret that they should ever have transgressed 
 the limits of the province assigned to them, as 
 the keenness and anxiety they have displayed 
 will rather injure than promote their cause, and 
 may hereafter prove an obstacle to more cau- 
 tious improvements. 
 
 The last general imperfection attributable to 
 the evidence adduced by the Committee is, that 
 it is insujjficient. 
 
 The whole number of witnesses called by the 
 Committee amounts to 61. From these Messrs. 
 Hobhouse, Chambre, Woodthorpe, Stirling, 
 Woodthorpe, jun.. Capper, Edgell, Pugh, Clark, 
 and Knapp, making 10 in all, ought to be de- 
 ducted, as they only appeared at the bar of the 
 Committee to present official documents. To 
 these Mr. Torin may be added, as his testi- 
 mony refers solely to the case of Potter, whose
 
 ON TMK CRIMINAL LAW. 159 
 
 name, offence, and execution, have been already 
 mentioned. 
 
 Other ten of the witnesses hold official situ- 
 ations either in criminal or police courts, or 
 about the prisons of tlie metropolis. These are 
 Messrs. Ruell, Cotton, Brown, Newman, W. L. 
 Newman, Payne, Thompson, Yardley, llobler, 
 and Shelton. Mr. Cotton, Ordinary of Newgate, 
 Mr. Ruell, Chaplain of Clerkenwell, and Messrs. 
 Newman and Brown, the late and present 
 keepers of Newgate, were examined chiefly 
 respecting the effect of executions on specta- 
 tors, prisoners, and convicts. They all agree 
 that executions have no effect upon spectators, 
 and very little upon convicts themselves, or 
 their companions in prison. They add, that in 
 murder, unless popular prejudice intervenes, 
 both spectators and prisoners approve of capital 
 punishment, but disapprove of it in cases which 
 are said not to be of an aggravated descriptmi^ and 
 especially for issuing forged bank notes. Whe- 
 ther this disapprobation extends to forgery it- 
 self, the witnesses do not altogether coincide in 
 their opinion. The little reliance which can be 
 placed upon the declarations of that class of 
 persons concerning whose sentiments these four 
 witnesses were examined, has already been 
 made the subject of observation. Messrs. W.
 
 160 0\ THE CRIMINAL LAW. 
 
 L. Newman, Payne, Thompson, Yardley, Hob- 
 ler, and Shelton, are clerks in public offices 
 connected with the administration of criminal 
 law, and are examined about matters of a very 
 miscellaneous nature ; but principally respect- 
 ing the reluctance manifested by prosecutors to 
 proceed capitally, and the conduct of .witnesses 
 and juries in cases where capital proceedings 
 have been instituted. They evince very diffe- 
 rent degrees of intelligence and experience, as 
 any one who looks over their evidence will per- 
 ceive, but there seems no necessity for going 
 through the whole of it in detail. They all 
 agree that in cases of stealing from the shop to 
 the amount of five shillings, and from the dwell- 
 ing-house to the amount of forty, a disinclina- 
 tion in prosecutors to sue, in witnesses to ap- 
 pear, and in juries to convict, is unequivocally 
 manifest. Although the evidence adduced 
 before the Committee affords no grounds to 
 conclude, that it is common for juries to per- 
 jure themselves by bringing in a verdict in 
 direct contradiction to the proof laid before 
 them : Mr. Buxton, in his speech on the 23d of 
 May, 1821, offered to show that such perjury 
 occurs in " in tens, nay, in hundreds of thou- 
 sands of instances," and quoted from the ses- 
 sions papers a variety of trials for larceny, in
 
 ox THE CRIMINAL LAW. ICl 
 
 which the criminal was acquitted of the capital 
 charge by the jurors taking* upon them to set 
 an undue value upon the property stolen. lie 
 added, that to this class of cases, lie thought 
 proper, for the sake of clearness, to confine 
 himself. As far as 1 have had an opportunity 
 of looking into the printed sessions papers, 
 perjury on the part of jurors is seldom appa- 
 rent in any other cases than those of larceny, 
 and even there it by no means prevails to the 
 extent which the literal interpretation of Mr. 
 Buxton's words would warrant. There can be 
 no doubt, however, that in cases of larceny, it 
 is remarkably frequent, and its existence adds 
 to the regret which has already been expressed, 
 that a total alteration of the law^ of larceny did 
 not take place a considerable time ago. There 
 would then have been no pretence for the com- 
 mission of an offence so fraught with every evil 
 consequence. It is unaccountable that the per- 
 jury of jurymen should on any occasion have 
 been treated lightly, and its consequences so 
 long overlooked by the judges and the legis- 
 lature. The violation of an oath, like any other 
 breach of duty, will cause less compunction as 
 it becomes habitued. That which is reckoned 
 pious to save life, will in time be thought venial 
 to save reputation, and not very culpable to 
 
 M
 
 162 ox THE CRIMINAL LAW. 
 
 serve a friend, a cause, or a party. In Lon- 
 don, and the neighbourhood, jurors are so apt 
 to be misled or inflamed by the daily press, 
 that they have more than once threatened to 
 assume this discretionary power, from which 
 every public and private consideration ought 
 to withhold them. Qtiis- cudodiet ipsos custodeSy 
 applies more emphatically to jurymen than to 
 the guardians of any other public privilege ; and 
 if they should ever conceive themselves autho- 
 rized, under any pretence, to betray their trust, 
 it will be no less discreditable to them than cala- 
 mitous to their country. Jurymen ought to be 
 as far removed from wilfulness on the one hand, 
 as from subservience or intimidation on the other, 
 and to have no other concern than to give a true 
 verdict according to the evidence which has 
 been laid before them. It is the admirable 
 mixture of openness, good sense, good feeling, 
 and firmness in jurymen, and not to the mere 
 institution of a jury, that the excellence of that 
 mode of trial in England has been owing, and 
 without these qualities its establishment will be 
 of little service either there or in any other part 
 of the world. 
 
 Some of the witnesses allege that there is 
 the same disinclination to prosecute in burglary, 
 or at least in some sorts of it, that there is
 
 ON THE CRiMiXAr, r,AW. iri3 
 
 in larceny. Mr. Iloblcr, at page 83, speaks 
 of the reluctance to prosecute capitally being 
 general; but it is not clear what precise mean- 
 ing he attached to the assent which he gave 
 to the question }>ut to him. These witnesses 
 are also asked aliout reluctance to prosecute 
 for forgery; but their testimony does not es- 
 tablish its existence to the extent which might 
 be inferred from the language which is made use 
 of in the Committee's Report. On the con- 
 trary, Mr. Shelton, who has filled the office of 
 clerk of the arraigns of the sessions of oyer and 
 terminer and gaol delivery at the Old Bailey ever 
 since the year 17S4, denies positively that he has 
 perceived any such reluctance at all ; and from 
 his ability and experience, his testimony, next 
 to that of Mr. Evans, seems on this and most 
 other points on which he was examined, to be 
 the most valuable laid before the Committee. 
 
 The next witnesses whom it may be con- 
 venient to class together, still are, or former- 
 ly have been, in the profession of the law, 
 viz. Sir Archibald Macdonald, Messrs. Evans, 
 Montagu, Carr, Mainwaring, Harmer, and Drs. 
 Colquhoun and Lushington. The names of the 
 first three have been introduced already. Sir 
 Archibald Macdonald and Mr. Evans have been 
 examined upon so many points, that it would 
 
 M 2
 
 164 ON THE CRIMINAL LAW. 
 
 be difficult to arrange what they have said under 
 distinct heads, but the scope and spirit of the 
 whole does not bear out the chief alterations 
 in the criminal law which the Committee have 
 in contemplation. As Mr. Buxton, at page 51 
 of his speech, still relies upon the evidence of 
 Sir Archibald Macdonald as materially in his 
 favour, I have again looked over the various 
 parts of that gentleman's testimony, and can 
 perceive no reason for changing the opinion 
 previously expressed concerning it. The tes- 
 timony of Mr. Montagu coincides in all points 
 with the views of the Committee. Mr. Carr, 
 solicitor of Excise, confines his observations 
 to the impropriety of punishing certain offences 
 against the excise laws with death, instead 
 of proceeding against them by means of fines 
 and penalties; and the guarded manner in 
 which his testimony is given, and strictness 
 with which he confines himself to the matters 
 which fall peculiarly within his province, fur- 
 nish a striking contrast to that of several of the 
 other witnesses, and adds greatly to the weight 
 which is due to his opinions. It would very 
 much reduce the list of capital felonies, and 
 remove the severity of the criminal code, if Mr. 
 Carr's suggestions were adopted. The repeal of 
 the capital punishment is no doubt the first and
 
 ON THE CRIMINAL LAW. 165 
 
 most important practicable alteration, but it 
 would be exceedingly desirable to push the im- 
 provement one step farther. In the preceding 
 inquiry into the state of the Statute book, it 
 was endeavoured to be shown, that the revenue 
 acts are obnoxious as a chief cause of the accu- 
 mulation and intricacy of the law. Here they 
 put on a still more odious appearance, as a 
 prime source of the increase of immorality and 
 crimes. For each of these reasons separately 
 considered, and still more when taken in con- 
 junction, one cannot but wish that all offences 
 connected with the Revenue should, as far as 
 possible, be abolished. 
 
 The next witness is Mr. Mainwaring, one of 
 the pohce magistrates, who says, that greater 
 reluctance to prosecute exists in capital crimes, 
 than in those which are not capital, and that 
 he has occasionally discovered a reluctance 
 to prosecute for shoplifting, and embezzle- 
 ment in dwelling-houses. He has had no 
 cases of forgery against him excepting those 
 of the Bank of England. In these he has occa- 
 sionally discovered a reluctance in witnesses to 
 give evidence, but that evidence relates only 
 to the transit of the notes from hand to hand. 
 He thinks that mitigation of punishment would 
 produce more frequent prosecutions, and that
 
 IGG ON THE CRIMINAL LAW. 
 
 ' for most offences,' hard labour is the most 
 effectual preventive. lie adds, that capital 
 punishment has not much tendency to deter 
 London criminals, and that the best punish- 
 ments now in use, are confinement on board 
 the hulks and in the Penitentiary. This wit- 
 ness says nothing of reluctance to prosecute in 
 forgery, false testimony given by witnesses, or 
 false verdicts returned by juries ; and though 
 he states that for most offences hard labour is 
 the best punishment, he leaves us in the dark, 
 as many other witnesses have done, respecting 
 the specific offences which he included under 
 those terms. Mr. Harmer's evidence (who is 
 a solicitor, and has been chiefly retained by 
 persons apprehended for offences,) altogether 
 accords with the views of the Committee. He 
 speaks in the strongest language of the reluc- 
 tance to prosecute in forgery; has, in such 
 cases, ' frequently seen persons withhold their 
 ' testimony, and in all capital indictments, with 
 ' the exception of murder and some other hei- 
 
 * nous offences, prosecutors show great reluc- 
 
 * tance to persevere, frequently forfeiting their 
 
 * recognizances :' and in the offences of steal- 
 ing in shops and dwelling-houses, it has, ' to 
 ' his mind, amounted to demonstration that the 
 ' articles were of such a value as imperiously
 
 Oy THE CRIMINAL LAM'. I G7 
 
 ' called upon the jury for a verdict of guilty, 
 ' and the instances, he may say, were iimunie- 
 
 * rable, within his own observation, of jurymen 
 
 * giving verdicts in capital cases, in favour of 
 ' the prisoner, directly contrary to the evidence.' 
 The best punishment for thieves, he thinks the 
 penitentiary or the hulks, but not transporta- 
 tion, or if transportation, only for life. He also 
 intrepidly asserts ' that the punishment of 
 
 * death has no tendency to prevent forgery, and 
 
 * no terror for a common thief.' With all pro- 
 per respect for the penetration and experience 
 of Mr. Harmer, it is impossible to attach that 
 importance to his evidence which the Commit- 
 tee have endeavoured to do. He speaks in a 
 manner much too incautious and unqualified ; 
 and his opinion respecting the inefficacy of the 
 punishment of death is so directly at variance 
 with all the springs of human action, that few 
 persons could bring themselves to assent to it, 
 though corroborated by all the thieves and 
 forgers in the kingdom. Dr. Lushington only 
 mentions some cases of reluctance to prosecute 
 for capital offences, wliich fell within his own 
 knowledge. The only remaining witness of 
 this class is Dr. Colquhoun, the most material 
 part of whose evidence is as follows : — 
 
 * It has occurred to me that, except in cases
 
 1G8 ON THE CRIMINAL LAW. 
 
 ' of high treason, murder, sodomy, arson, and 
 ' other offences accompanied with violence to 
 ' the person, the punishment of death may be 
 
 * dispensed with under circumstances favour- 
 ' able to the administration of criminal justice.' 
 
 He had previously expressed himself thus : 
 * My experience has led me to draw this 
 
 * conclusion, namely, that the punishment 
 ' should be such as would answer the ends of 
 ' justice ; and that the sentence of the laws 
 ' should be invariably (except in extreme cases) 
 ' carried into execution. It is more than 23 
 
 * years ago since 1 brought under the review of 
 
 * his Majesty's government and the public at 
 ' large, a full exposition of my experience in 
 ' respect to crimes and punishments, in my 
 
 * " Treatise on the Police of the Metropolis," 
 ' and suggesting remedies ; and I have the 
 ' satisfaction to know that whenever such reme- 
 
 * dies for the prevention of crimes were adopt- 
 ' ed, they have completely succeeded ; almost 
 ' every imperfection in the criminal code, and 
 ' also in the system of police which has recently 
 ' been disclosed in the parliamentary reports, 
 ' will be found in that work.' — p. 65. 
 
 The Committee may be left in undisturbed 
 possession of Dr. Colquhoun's testimony, with 
 whatever additional value it may derive from
 
 ON thp: criminal law. 169 
 
 his having been ' for twenty-seven years a po- 
 
 * lice magistrate in tliis capital, and well known 
 
 * by his publications on such subjects.' The 
 doctor's publications are now known too well, 
 and the experience, suggestions, and conclu- 
 sions, to which he alludes, valued too justly to 
 require comment. 
 
 To these witnesses may be superadded Mr. 
 Martin, member for Galway, who declares him- 
 self a strenuous adversary to capital punishment, 
 especially in forgery, robbery, burglary, larceny 
 in shops and dwelling-houses, and stealing of 
 cattle and sheep. He says a man would be 
 hooted at in Ireland that prosecuted capitally 
 in burglaries and robberies without violence ; 
 that sheep stealing and cattle stealing are very 
 frequent in his part of Ireland, ' but a man 
 ' would meet with great censure who would 
 ' prosecute a man so as to procure him to be 
 ' hung for these offences, and they are almost 
 ' always prosecuted with a view to recommend 
 
 * the person to mercy, that he shall not incur 
 ' that penalty. To which of those three offences 
 ' does your observation most apply ? To sheep 
 ' stealing, I think, generally. But, in short, I 
 ' do not recollect a person to have been exe- 
 ' cuted in my country for sheep stealing ; it is 
 ' not in my recollection. — And yet it is a fre-
 
 170 ON THE CllIMINAL LAW. 
 
 * qnent offence ? My estate is almost laid waste 
 
 * with it : people are afraid to put their sheep 
 ' there at all, they are stolen so fast. — Would 
 
 * you prosecute with the utmost severity and 
 
 * industry if the punishment were any thing less 
 ' than death ? I certainly would desire of all 
 ' things in the world to transport people where 
 
 * they steal sheep in great quantities, who make 
 
 * a trade of sheep stealing and do not take them 
 
 * for sustenance, I would certainly transport 
 ' them.' As mild punishment has hitherto com- 
 pletely failed in checking the evil complained 
 of, we expected the witness to propose that 
 capital punishment should be tried to see whe- 
 ther it would succeed better ; but the opinions 
 he has expressed are so diametrically opposite 
 to those which the facts detailed by him seem 
 to warrant, that we surmise the sheep stealers 
 of Mr. Martin's country are better acquainted 
 with the principles of Criminal Law than the 
 gentlemen whose sheep they steal. But whe- 
 ther this be so or not, it is surely not the least 
 curious part of the Committee's proceedings, 
 that, with the avowed object of ascertaining the 
 sentiments of the people of England respecting 
 Criminal Laws, they have not required or re- 
 ceived the evidence of one owner or occupier 
 of land in England, even with respect to the 
 offences which chiefly affect landed property,
 
 0>7 TIIF, CRIMIXAL LAW. 171 
 
 and that the person whom they have cliosen to 
 guide them is a resident in one of the most 
 remote and, by his own confession, most dis- 
 orderly districts of Ireland. 
 
 The next witnesses in order are the four 
 merchants and cii^ht bankers formerly men- 
 tioned. The names of the merchants are 
 Messrs. Goldsmidt, Wood, Wilkinson and Fos- 
 ter; and those of the bankers, Messrs. Foster, 
 Fry, Smith, Hoare, Barnet, Bentall, Giimey, 
 and Birkbeck, the first five of whom are bankers 
 in London, and the remaining three bankers in 
 the country. Some of these gentlemen bear 
 witness to the reluctance which is felt by the 
 public to prosecute capitally in any case what- 
 ever, but the testimony of all of them is con- 
 fined principally, and of most of them exclu- 
 sively, to the crime of forgery. Their almost 
 unanimous opinion is, that it would be ex- 
 pedient to visit forgery and the uttering of 
 forged instruments with some punishment short 
 of death. There is at the same time a remark 
 of Mr. Hoare's respecting reluctance to prose- 
 cute, which goes far to explain the testimony of 
 all the bankers called, and of many of the other 
 witnesses who have borne testimony to the 
 general reluctance to prosecute in cases of 
 forgery : — 
 
 * In the first instance there are their own
 
 172 ON THE CRIMINAL LAW. 
 
 ' feelings ; their unwillingness, for the sake of 
 ' property, to take away the life of a fellow- 
 ' creature ; added to their unwillingness, the 
 
 * intercessions which are almost invariably made 
 
 * by the friends and connections of the bankers; 
 
 * for the individuals committing forgeries are 
 
 * generally well known to the parties concerned, 
 ' and though they may feel comparatively little 
 ' reluctance in punishing strangers with death, 
 
 * yet when they are in the habits of intercourse 
 ' with the friends of the individual who has 
 
 * committed the oifence, it becomes far more 
 ' painful.'' — p. 145. 
 
 There can be no doubt of the truth or im- 
 portance of Mr. Hoare's statement, and one 
 of the considerations most forcibly suggested 
 by it and the rest of the evidence laid before 
 the Committee, is the non-existence of a pub- 
 lic prosecutor. On this subject I do not 
 feel myself qualified to express an opinion. 
 Considering the change it would make in the 
 administration of criminal law, it is extremely 
 difficult to say whether it would be wise to 
 appoint such an officer or not. Such a mea- 
 sure would be somewhat hazardous, and not 
 likely to be generally acceptable ; but at the 
 same time the want of some person to prose- 
 cute on the part of the public, irresistibly forces
 
 ON THE CRIMINAL LAW. 173 
 
 itself on the attention in the course of almost 
 every deposition which has been given. Re- 
 luctance to prosecute on the part of private 
 persons is not by any means surprising. They 
 are apt to be represented as acting from a 
 vindictive spirit, rather than a regard to the 
 pubhc good; and, if conviction and execution 
 should follow, however atrocious the criminal 
 may be, his fate can hardly fail to create a 
 painful sensation in the mind of the prosecutor 
 at the moment, and sometimes a lasting im- 
 pression that the blood of the criminal, who by 
 his means has fallen a victim to the laws, will 
 rest on his head for ever. In other offences, 
 the prosecutor, before the trial comes on, has 
 obtained all he aimed at by the prosecution, or 
 finds he could get nothing more if he were to 
 conduct it to its regular termination ; and in a 
 still more numerous class of cases, proceedings 
 are dropt, merely because the patience of the 
 prosecutor is exhausted by the disagreeable 
 publicity and intercourse, trouble, delay, and 
 expense which he has been obliged to encoun- 
 ter. These circumstances combined will ac- 
 count for the greatest part of the reluctance to 
 prosecute, and distress experienced upon con- 
 viction, to which the witnesses have borne tes- 
 timony, without supposing it to express any
 
 174 ON TIIF, CRTMIN \L I.AW. 
 
 opinion with respect to the present severity of 
 the criminal law. From all I have seen and 
 heard, 1 believe the result of a close and ex- 
 tensive investigation would shew, that three- 
 fourths of those who have at first declined to 
 prosecute or have stopt proceedings after- 
 wards, have been swayed by private motives, 
 and not by any apprehension of the nominal or 
 actual punishment which might have ensued 
 upon conviction. 
 
 Neither ought it to be altogether over- 
 looked, that what the witnesses tell the Com- 
 mittee their feelings prompt them to do, or 
 what their friends told them they should have 
 done if in their stead, falls very short indeed 
 of a deliberate opinion respecting the punish- 
 ment which, in the judgment of such persons, 
 ought to be affixed by law to the several 
 crimes of which they had been speaking. Had 
 an aggravated case of the offence in ques- 
 tion been propounded to them, and had they 
 been interrogated strictly whether, they think, 
 that capital punishment ought in no such in- 
 stance to follow, perhaps a different complexion 
 would have been given to their depositions from 
 that which they now wear. In the crime of 
 forgery, this defect is peculiarly discernible. 
 There is scarcely any crime, about the proper
 
 ON THE CRIMINAL LAM'. 175 
 
 punishment for which people differ so widely. 
 Some think that forgery, or the uttering- of forged 
 instruments, ought not to be capitally punished 
 in any case whatever ; others, that capital 
 punishment ought to be limited to the forging 
 of bank notes only, which is an act implying 
 extraordinary deliberation and contrivance, or 
 to those instances where the crime has been 
 committed to a large amount, where the offend- 
 ers have been of bad character, or have been 
 previously convicted of the same offence. It 
 was manifestly requisite that the most precise 
 questions possible should have been put to the 
 witnesses, and equally precise answers exacted 
 from them on each of these points, in order to 
 ascertain fully and exactly their sentiments on 
 the subject. Even if all the witnesses examined 
 had unanimously objected to capital punishment, 
 it might still be contended, that in a country 
 where commercial confidence is carried to a 
 pitch unparalleled in any other, a more exten- 
 sive inquiry than that which the Committee has 
 instituted, is indispensably necessary to settle 
 on which side the ])re|)onderance of public 
 opinion lies. There arc 71 banking-houses in 
 London, the partners in which probably amount 
 to 284, and at least 250 houses in the country, 
 whose partners may amount to 750 more.
 
 17C ON THE CRIMINAL LAW. 
 
 making altogether 1034, in addition to perhaps 
 100,000 considerable manufacturers and mer- 
 chants ; and the few individuals examined, how- 
 ever respectable they may be, are surely not 
 sufficiently numerous to satisfy the legislature 
 of the prevailing opinion of so large a body 
 in a matter of so great moment. 
 
 The last 19 witnesses consist of Mr. Baker, 
 engineer at the Tower, and 1 8 tradesmen, viz. 
 Josiah Condar, bookseller ; Joseph Curtis, cur- 
 rier; Wendover Fry, typefounder; John Gaun, 
 general merchant and boot and shoe manufac- 
 turer ; Richard Taylor, printer ; James Soaper, 
 profession not mentioned ; Stephen Curtis, lea- 
 ther manufacturer; Ebenezer Johnson, iron- 
 monger ; Philip Jacob, ironmonger and sta- 
 tioner ; Thomas Lewis, retired merchant ; James 
 Jennings, grocer; Samuel Garett, insurance 
 broker ; Frederick and William Thornhill, hard- 
 waremen ; William Collins, glass manufacturer ; 
 and Sir Richard Phillips, bookseller and sta- 
 tioner. 
 
 What peculiarly qualified Mr. Baker to be 
 a witness on this occasion, neither appears from 
 his residence, profession, nor any other circum- 
 stance which transpires in the Report ; but his 
 evidence corresponds entirely with that of the 
 other witnesses, whose names have just been
 
 ON I'lii: ci{im:\ Ai- i wv. 177 
 
 enumerated. They mention a variety of in- 
 stances 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 these 
 sentiments are rapidly diffusing themselves; 
 others state their own general opinions respect- 
 ing criminal law ; and all of them concur in 
 recommending either the extreme restriction 
 or total abolition of capital punishment. To 
 extend or revive the notoriety of any particulars 
 connected with individual history, though an un- 
 enviable is sometimes a necessary office. These 
 witnesses have voluntarily placed themselves in 
 a situation, in wdiich their testimony may influ- 
 ence important legislative measures ; and the 
 public has an unquestionable right to know 
 the character and capacity of those who have 
 stood forward to instruct it upon this occasion. 
 Some of them are persons of unquestionable 
 riespectability ; but from the tone and lan- 
 guage which pervades the evidence of others, 
 it is impossible not to entertain suspicion, that 
 they do not belong to that class in society 
 to whom the Committee ought in such a case 
 to have resorted for information, and are either 
 weak or disingenuous in a more than ordi-
 
 178 ON THE CRIMINAI, LAW- 
 
 nary degree. One of them, who is announced 
 by the Committee * as once sheriff as well as 
 
 * often a juror,' is spoken of by Sir Vicary Gibbs, 
 then Attorney General, in the report of a trial 
 instituted by Sir John Carr against Vernor and 
 Hood in 1808, * as having given in evidence of 
 
 * his being either one of the greatest fools that 
 
 * ever lived under the sun, or that he is not to 
 
 * be credited on his oath. I say it appears from 
 
 * his own testimony, either that he has given in 
 
 * false evidence, or that he is the greatest fool 
 
 * that ever walked upon the earth without a 
 
 * keeiper.— Lord Ellenborough , biferposing—We^li- 
 
 * est, perhaps. — Attoiiiey General — (weakest.) 
 
 * The weakest man that ever walked upon the 
 
 * face of the earth without a keeper. Erasmus 
 
 * would have given any thing for him when he 
 
 * wrote his Encomion Morise, or Pope when he 
 
 * wrote his Dunciad.' The case of another wit- 
 ness is still more worthy of attention. It may 
 be proper to mention that upon the exportation 
 of most articles upon which a duty is paid in 
 any stage of the home manufacture, the whole 
 or greatest part of the duty is returned to the 
 exporter under the name of drawback. Here 
 then is a field for the exertion of every sort of 
 contrivance to overreach the officers of the re- 
 venue, and false entries of goods are made and
 
 ON THE ("lUMrXAl, LAW. 170 
 
 false descriptions (jf them given, in order that 
 the exporter may receive duties from tlie public 
 which neither he nor any previous owner of the 
 goods has ever paid. Glass, having long been 
 subject to a heavy duty, which was greatly in- 
 creased ill 1812, is one of the commodities in 
 which fraud is most frequently practised. In 
 one of these illicit adventures this witness had 
 the misfortune to engage, in consequence of 
 which informations were filed against him in 
 Exchequer for the condemnation of broken and 
 waste glass described as serviceable, of which 
 14 cases, containing 22 cwt. 1 qr. 9 lbs. were 
 entered for exportation on the 21st of Nov. 
 1814, and other 64 cases, containing 93 cwt. 
 2 qrs. 13 lbs. on the 24th of the same month, 
 in order to obtain various drawbacks amount- 
 ing nearly to the sum cf 500/. Upon these 
 informations verdicts were obtained in 181 G, 
 for the condemnation of this broken and waste 
 glass, although the 52 Geo. III. c. 77. § 5. re- 
 quires the exporter to take an oath ' that he 
 
 * believes the duty imposed by law for or in 
 
 * respect of such glass intended to have been 
 
 * exported to have been fully paid, and that 
 
 * any person who shall be convicted of wilfully 
 
 * taking a false oath, in any case in which the 
 ' above oath is required to be taken, shall be 
 
 N 2
 
 180 ON THE CRIMINAL LAW. 
 
 * liable to the pains and penalties to which per- 
 ' sons are liable for wilful and corrupt perjury.' 
 Though the facts now mentioned were disclosed 
 in presence of a court of justice, the individual 
 alluded to expresses himself as if the force of 
 conscience had compelled him to deliver his 
 sentiments before the Committee on Criminal 
 Law, and he has succeeded in throwing round 
 it an air of guileless and considerate benevo- 
 lence, which has imposed on some of the ablest 
 and acutest men in the kingdom. The world 
 is at this time so overrun with philanthropic 
 pretenders of every denomination, that it be- 
 comes an act of justice to expose what it would 
 otherwise have been a duty to overlook, in 
 order that their conceit and insufficiency may 
 neither prove injurious to the public good, nor 
 bring discredit upon the exertions of wiser and 
 more consistent men. 
 
 An endeavour has now been made to present 
 a distinct and accurate summary of the whole 
 of the evidence which was produced before the 
 Committee; and whether the number, capacity, 
 profession, or condition of the witnesses is taken 
 into account, it falls short of that satisfactory 
 information it might have been expected to 
 yield. When a marked alteration in the spirit 
 and provisions of a whole system of law is in 
 agitation, it is incumbent upon those by whom it
 
 ON THE CRIMINAL LAW. I81 
 
 is promoted, not to begin the change until they 
 have made application in every quarter from 
 which effectual assistance may probably be re- 
 ceived. This has not yet been done. Only one 
 ex-judge has been examined, and when the 
 different parts of his testimony are viewed in 
 conjunction with one another, it by no means 
 amounts to an approval of those principles of 
 criminal legislation which the Committee ap- 
 pears to be chiefly solicitous to establish. In the 
 absence of every attempt made by them to learn 
 the sentiments of any other judicial character, 
 we are referred generally to the authority of 
 Sir Thomas More, Bacon, Coke, Chillingworth, 
 Clarendon, Blackstone, Dunning, Franklin, 
 Johnson, JPitt, Fox, and Sir William Grant; 
 and whenever any individual thinks proper to 
 assail any part of the existing criminal law, some 
 part of this phalanx of illustrious names is sure 
 to be brought up to his support. But, with the 
 exception of Franklin, it may be doubted whe- 
 ther there is one of them who would have vo- 
 lunteered on such a service. They may have 
 used language more or less strong against par- 
 ticular penal acts or undue severity of punish- 
 ment in general; but casual observations never 
 can be construed into a dislike of an entire class 
 of laws, or an approval of a specific plan of 
 reform, whicli at the time of using them, there
 
 182 ON THE CRIMINAL LAW. 
 
 is no reason to believe any one of them had in 
 contemplation. More anxiety has been shown 
 to glean passages favourable to mitigation of 
 ])iinishment from the works of distinguished 
 writers, than there is any occasion for. If they 
 could be collected by thousands, they would 
 not answer the purpose for which they are in- 
 tended. No man can compress his opinions on 
 criminal law within the compass of a few ora- 
 cular sentences; and whoever has attempted it, 
 demonstrates by that very means, that they are 
 not worth the having. 
 
 The Committee have observed, that 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 sin- 
 cere, appears to be mistaken delicacy. If it 
 had been thought inconsistent with their age or 
 dignity to have appeared as witnesses at the 
 bar of the Committee, their evidence might 
 have been received in any other manner that 
 might have been more agreeable and respectful; 
 and as to the impropriety or inconvenience of 
 those who execute the law giving any opinion 
 about the alteration of it, that seems a conside- 
 ration for which there is no foundation in reality.
 
 ON THE CRIMINAL LAW. 1S3 
 
 All who have any acquaintance with courts 
 either of common law or equity must frequently 
 have heard judges express a wish for the re- 
 peal or alteration of laws which they were 
 executing ; and though they never had done so 
 in words, it is notorious that they continually 
 do it by their practice. A judge on the circuit 
 who rescues a criminal from the grasp of a penal 
 statute, may and frequently does announce 
 what opinion he entertains of its expediency, 
 as distinctly as he could have done by the most 
 formal avowal of his sentiments. By declining 
 to consult the judges, the Committee have de- 
 prived themselves of the assistance of those 
 who, unless they are unworthy of the distin- 
 guished station which they occupy, were most 
 peculiarly qualified to instruct them. 
 
 It would also have been desirable that the 
 Committee had called in the aid of a greater 
 number of barristers, especially of those who 
 are conversant with the proceedings of criminal 
 courts. It has often been objected to lawyers, 
 that they begin their professional life with 
 narrow views of the principles of law, which 
 practice only renders more contracted. The 
 remark is not without foundation, but has 
 on many occasions been pushed to an extent 
 greatly exceeding what the truth will warrant.
 
 184 ON THE CllIMINAL LAW. 
 
 They are usually men of good education and 
 understanding; and it is not passing too high an 
 eulogium upon them to assert, that two or three 
 of them might have been selected from each cir- 
 cuit, whose experience, liberality and reflection 
 would have entitled their opinion on matters 
 of criminal law to as much attention as that of 
 any witnesses who could have been called be- 
 fore the Committee ; while their constant com- 
 munication with prosecutors and defendants 
 qualifies them better than the same number of 
 any other class of persons, to make known the 
 sentiments which prevail in different parts of 
 England upon such subjects. 
 
 Besides judges and barristers, it would also 
 have been advisable to have examined agri- 
 cultural and mercantile persons belonging to 
 every rank in society, who are likely to be 
 affected by the projected change. Instead of 
 this, there is not a single English gentleman, 
 clergyman, magistrate, yeoman, or partner in 
 any commercial concern carried on in the 
 country, who has either presented himself, or 
 been sought for. The only effective support 
 on which the framers of the Report can rely, 
 consists of 8 bankers, 4 merchants, 1 8 trades- 
 men and shopkeepers, 1 equity barrister, 1 re- 
 tired police magistrate, 1 engineer in the Tower,
 
 ON THE CRIMINAL LAW. 185 
 
 1 Old Bailey solicitor, and Mr. Martin, member 
 for tlie county of Galway. On so slender a 
 body of evidence as this, and so selected, it is 
 surely premature to infer what the general sen- 
 timents of the people of England are, with 
 respect to the general spirit or particular en- 
 actments of the present criminal law. 
 
 Nearly two years have elapsed since the 
 Committee closed its sittings, and no inclination 
 has been manifested to renew them. Had any 
 disposition appeared in the course of that inter- 
 val to admit the imperfections of the evidence 
 produced before it, the preceding long and un- 
 interesting examination of its contents should 
 now have been withdrawn. The purpose which 
 it was intended to serve would have been an- 
 swered, and all further controversy about " the 
 prevailing sentiments of the people of England" 
 would have ceased, without injury, as it appears 
 to me, to the cause of those who urge the abo- 
 lition or extreme restriction of capital punish- 
 ment, and to the great advancement of fair and 
 free deliberation on the subject. No concession 
 or acknowledgment of any kind, however, has 
 been made. On the contrary, Mr. Buxton, Sir 
 James Macintosh, and Mr. John Smith, in the 
 debate which took place in the House of Com- 
 mons during the session of 1^21, all defended
 
 186 ON THE CRIMINAL LAW. 
 
 it in a more or less guarded manner, and seem 
 still to rely upon it as affording satisfactory 
 proof of the expediency of the measures which 
 they wish to carry into execution. 
 
 Mr. Buxton, at page 44 of the printed speech, 
 expresses himself to the following effect : * But 
 
 * the writer of that Review entirely miscon- 
 
 * ceives the drift of our Committee in the evi- 
 
 * dence they took. He seems to deem it 
 
 * their duty, and what is still stranger, supposes 
 
 * it to be their intention, to collect upon each 
 
 * particular penal law which they proposed to 
 
 * repeal, a large body of facts, related by a 
 
 * large body of witnesses, all tending to show 
 
 * that in this special instance the severity of the 
 l|| * law deadens its execution. Now among a 
 
 * multitude of good reasons why the Committee 
 
 * did not adopt this course, one perhaps will be 
 
 * sufficient for the House ; namely, that it was 
 ' utterly impossible. The examination of some 
 
 * thousand witnesses which it supposes — that 
 
 * examination going on for the next century, 
 
 * contained in volumes outstripping the very 
 
 * statutes themselves in bulk and number, are 
 
 * very final objections to this mode of proceed- 
 
 * ing. Our object was to establish certain main 
 
 * principles, which, if true, are decisive on the 
 
 * general question. In cases unattended with
 
 ox THE CRIMINAL lAM". 187 
 
 ' violence, is there or is there not, so positive 
 ' a rehictance on the part of the public to give 
 
 * evidence and to convict, as materially impedes 
 
 * the course of justice ? That is the question 
 
 * to which we sought an answer from our wit- 
 
 * nesses.' 
 
 If either the diity or intention of the Committee 
 was misconceived, it has been unintentionally. 
 I knew nothing of either, but from the Commit- 
 tee's own words, which it may not be improper 
 in this place to repeat. * The object of the 
 
 * Committee has been to ascertain, as far as the 
 
 * nature of the case admitted by evidence, 
 
 * whether, in the present state of the people of 
 ' England, capital punishment in most cases of 
 ' offences unaccompanied with violence, be a 
 
 * necessary, or even the most effectual security 
 
 * against crimes.' Concluding, though in this 
 instance it seems erroneously, that the duty and 
 object of the Committee must be synonimous 
 terms, I took it for granted that there could be 
 no doubt of its being the intention of the Com- 
 mittee to fulfil its duty. It has not yet been shown 
 how that could have been adequately performed 
 otherwise than by examining a sufficient num- 
 ber of unexceptionable witnesses from different 
 parts of England, respecting each particular law 
 which the Committee wished to repeal. To
 
 ]88 ON THE CRIMINAL LAW. 
 
 establish in criminal law, what Mr. Buxton has 
 in his speech termed * a main ]mncipic',' seems 
 beyond the reach of possibility. Take, for ex- 
 ample, the crime of forgery, or larceny. The 
 feelings which actuate a certain portion of bank- 
 ers, traders, and shopkeepers in London with 
 regard to these offences, can form no criterion 
 of the feelings which prevail respecting these or 
 any other offences, such as arson, sheep-steal- 
 ing, and horse- stealing, in Norfolk, Suffolk, 
 Shropshire, or Northumberland. The expedi- 
 ency, or inexpediency of all the separate enact- 
 ments of a penal code cannot be determined by 
 the application of one or two abstract maxims. 
 Each of these enactments has been submitted 
 by itself to the consideration of the people of 
 England, and received the approbation of their 
 representatives before it passed into a law, and 
 each must again undergo a similar examination 
 before it can be ascertained whether, accord- 
 ing to the prevailing sentiments of the public, 
 it would be expedient to abolish it. If it be 
 true, as has been urged, that such a course of 
 examination would never have come to a con- 
 clusion, a stronger reason could not be suggest- 
 ed why it should have had no beginning. To 
 ascertain * the present sentiments of the peo- 
 ple of England' must always be a formidable
 
 ON THE CRIMINAL LAM'. 189 
 
 undertaking, and on subjects of a complicated 
 nature it will never be advisable to attempt it. 
 That the members of a representative body 
 should be well acquainted with the sentiments 
 of their constituents is evidently most desirable, 
 but neither in substance nor appearance can 
 they admit them to any participation of legis- 
 lative power, without a diminution of that re- 
 spect which ought to be paid to their character, 
 and confidence which should be reposed in 
 their judgment. Perhaps some such effect is 
 perceptible in this very instance. The tenor 
 of the whole examinations impresses the reader 
 with a conviction that the Committee have 
 called for the sentiments of the public in a 
 manner which gives them too much the air of 
 instructions by which the deliberations of the 
 legislature ought to be governed, and not a few 
 of the witnesses have communicated them with 
 as much dogmatism as if they ought to be re- 
 ceived with that consideration. Dangerous, 
 however, and unprecedented as this course of 
 examination seems to be, it has not been carried 
 far enough to justify the Committee in saying 
 what the prevailing sentiments of the people of 
 England are. That there is a numerous, active, 
 and respectable party in the country, who en- 
 tertain objections to the punishments now im- 
 posed by the criminal law is beyond all doubt,
 
 190 ON THE CRIMINAL LAW. 
 
 but whether the opinions which they entertain 
 are those which prevail throughout the mass of 
 the population, has not yet been ascertained. 
 The few witnesses who were examined, had no 
 right to speak for the whole people of England, 
 and their forwardness to do so formed a solid 
 reason for resisting their pretensions. Of the 51 
 effective witnesses who have appeared, 48 are 
 resident in London, or connected with it, and 
 excepting some unimportant observations of Sir 
 Archibald Macdonald and Mr. Evans, all the 
 information with which we are furnished re- 
 specting the general feeling of the kingdom is 
 derived from the three following persons. Mr. 
 Philip Jacob had been a journey of 10 weeks 
 into the southern and western counties, in the 
 course of which he had spoken with many in- 
 telligent persons with whom he is in the habit 
 of dealing in business, chiefly ironmongers and 
 stationers ; — Mr. James Jennings, the grocer, 
 undertakes to speak for the land-owners and 
 farmers of Somersetshire; — and Mr. Martin, 
 of Gal way in Ireland, is left to answer for the 
 rest of all England. It requires a strong pre- 
 disposition to believe in certain main pnnciples 
 or prevailing sentimefits, before such testimony, 
 whether weighed or numbered, can be thought 
 sufficient to establish either. 
 
 Sir James Macintosh, at page 968 of Vol. v.
 
 Oy THE CRIMINAL I.AM'. 191 
 
 of Hansard's Debates, is reported on this point 
 to have expressed himself thus : * he would fear- 
 
 * lessly say there never was an examination 
 
 * conducted with more fairness and imparti- 
 
 * ality.' Nothing more is here done than to 
 oppose a general averment to specific objec- 
 tions which have been stated and of which the 
 proofs have been produced. The chief of 
 these objections are, that many questions were 
 omitted which ought to have been put, and 
 that those which were put to the witnesses, 
 were, neither in form nor substance, properly 
 calculated for ascertaining the sentiments of 
 the people of England on the points to which 
 they related. Whether these objections have 
 been substantiated or not, it is to be pre- 
 sumed the minutes of evidence will enable its 
 readers to form as competent a judgment as if 
 they had heard the evidence actually given ; and 
 the statement of Sir James Macintosh can as 
 little change the substance of the facts which 
 they exhibit, as it has attempted to refute or 
 invalidate the reasoning which has been founded 
 upon them. Upon the manner in w^iich the wit- 
 nesses were collected, which is a point at least 
 as material as the conduct of their examination, 
 both Sir James Macintosh and Mr. Buxton have 
 abstained from speaking. 
 
 Mr. John Smith has thought proper to supply
 
 192 ON THE CRIMINAL LAW. 
 
 this deficiency. In the debate above alluded 
 to, he is reported to have spoken to the follow- 
 ing effect : ' he v^ould not enter into a detail of 
 ' that report, but he would state that the indi- 
 
 * viduals who gave evidence before the Com- 
 
 * mittce wcrefairlij collected, and were supposed 
 
 * to be individuals extremely well acquainted 
 
 * with the nature, application, and effects of the 
 
 * criminal law, particularly with respect to the 
 
 * crime of forgery.' The words of Mr. Smith 
 may have been misreported, and instead of ' tJie 
 imlividuals who gave evidence,' he may have 
 meant only so7ne of these individuals ; — he may 
 have used the words 'fairly collected,'' in a sense 
 or for a purpose somewhat peculiar; — or 
 stronger expressions may have escaped him in 
 the course of argument than those which he 
 intended to employ. There would be no sa- 
 tisfaction in supposing that a gentleman of 
 Mr. Smith's character and candour meant to 
 expose himself to the risk of maintaining this 
 desperate position, that the whole of the indivi- 
 duals who gave evidence could be said to be 
 fairly collected in any acceptation in which these 
 terms could be properly used on such a subject 
 and occasion. The Solicitor-General stated 
 without hesitation, that ' a large number of re- 
 ' putable persons were known to be averse to 
 ' capital punishments who had been eager in
 
 ON THE CRIMINAL LAM'. I 9i^ 
 
 ' the pursuit of their object, and liad pressed 
 
 * themselves on the Committee to give evidence ;' 
 and the whole drift of the evidence so strongly 
 corroborates this statement, as well as the par- 
 ticular circumstances which have in the previ- 
 ous part of this inquiry been relied upon, that 
 until an ex])lanation is given of the means by 
 which these witnesses really were assembled, 
 the most confident contrary asseveration cannot 
 possibly prevail against it. 
 
 It has, however, been urged, that if there is 
 aay insufficiency in the evidence laid before the 
 Committee, it is amply supplied by the peti- 
 tions presented to parliament in 1821, which 
 conclusively show the prevailing sentiments of 
 the people of England to coincide with the re- 
 presentation which is given of them in the Re- 
 port. Mr. William Courtenay says, ' It was 
 ' right that parliament should look to the state 
 
 * of the public mind, which was manifested by 
 
 * the number of petitions which had been pre- 
 
 * sented from time to time.' Hansard's Debates, 
 Vol. V. p. 961. Sir James Macintosh says, p. 
 968, ' and here he would beg to remind the 
 ' House of the various petitions presented in 
 
 * favour of a revision of the penal code — these 
 ' petitions were signed by upwards of 30,000 
 ' persons — by men of all parties — by men 
 
 o
 
 194 ON THE CRIMINAL LAW. 
 
 * strongly attached to ministers — by merchants, 
 ' traders, shopkeepers, and artizans, by those 
 
 * who were the principal sufferers from forgery, 
 
 * larceny, and fraud ; by those from whom petit 
 
 * jurors were always selected. All those per- 
 
 * sons, having no political bias whatever, had 
 
 * strongly expressed their opinion in favour of 
 
 * an alteration in the penal code. So much to 
 
 * the testimony of the country.' 
 
 The art and mystery of procuring petitions 
 is seldom talked of within the walls of parlia- 
 ment, and yet there is none which is better un- 
 derstood or more generally practised. When- 
 ever any set of men are anxious to promote or 
 obstruct a particular pending measure, one of 
 their first concerns is to fortify themselves with 
 a decent supply of petitions in their favour. 
 The means are then thought of by which they 
 are to be obtained. London is usually pitched 
 upon as the most convenient seat of operations, 
 officers are selected for carrying on the cor- 
 respondence, drafts of petitions are prepared, 
 and copies of them forwarded to all parts of 
 the country where there is the smallest chance 
 of their being received with attention. There 
 they are circulated and signed, returned and 
 presented to parliament, then printed, and at 
 last are ushered into the world, as a faithful
 
 ON THE CHTMIN'AI. (AW. 195 
 
 index of the deliberate and unsopliisticatcd sen- 
 timents of the whole people of Enf^^land. It is 
 much to be lamented that those who have the 
 christian religion on their lips and ought in a 
 peculiar manner to exemplify its simplicity and 
 rectitude in their conduct, should sometimes 
 show as little repugnance to adopt this equi- 
 vocal policy when it will contribute to the fur- 
 therance of their views, as those who profess 
 to be guided by no higher motives tlian those 
 of mere worldly interest. I believe it will not 
 be denied, that recourse has been had to it in 
 the present instance. I have met with persons 
 who have seen petitions ready drawn before 
 they were sent into the country and well knew 
 the machinery which was put in motion to 
 promote subscriptions to them, but have inva- 
 riably found them unwilling to communicate 
 the smallest information respecting the indivi- 
 duals who were engaged in such a work. It is 
 this mystery and management which accords so 
 ill with the cause which it is made to support. 
 Petitions are presented from various and distant 
 quarters of the country ; supposed by many to 
 be the unasked, untaught sentiments of those 
 whose names are attached to them ; and several 
 members of parliament, ignorant pcrliaps of 
 what has been passing, in substance declare 
 
 o2
 
 196 ON THE CRIMINAL LAW. 
 
 them to be so. All this while, that party, by 
 whose instrumentality alone the greater part or 
 the whole of these petitions have been pro- 
 cured, not only conceal what they have done, 
 but do every thing in their power to induce a 
 belief that little or nothing has been done for 
 such a purpose by them or any other person. 
 The following letters, which appeared in a 
 country newspaper in the early part of 1821, 
 will probably be thought to throw as much 
 light as is necessary on this part of the subject. 
 
 * To the Editor of the Royal Cornwall Gazette. 
 ' Jordan House, Penzance, Feb. 11. 
 ' Sir, 
 
 ' The patient but persevering and zea- 
 ' lous persons who have laboured so success- 
 ' fully in the abolition of the slave trade, and 
 ' the improved discipline of British prisons, are 
 ' 720W actually engaged in revising respectful appli- 
 
 * cations to both Houses of Parliament, that a revi- 
 
 * sion of our penal code relative to capital punish- 
 ' ments, may take place. I have just received the 
 
 * following judicious communication from Lon- 
 
 * don on this subject, and as it does not inter- 
 ' fere with any party question, which at present 
 
 * agitates the public mind, but is purely an ap- 
 
 * peal to humanity, and a laudable attempt to
 
 OS Tin: CRI.MIXAL LAW. 197 
 
 * promote the respectability of British jurispru- 
 
 * dcnce ; [ have to sohcit its insertion in your 
 
 * County paper. Should persons in the County 
 
 * who have not any correspondence with the 
 ' metropolis on the business, be inclined to pro- 
 
 * mote petitions, any information I can give will 
 
 * be at their service. A line addressed as above 
 ' will meet with respectful attention, 
 
 * I remain, your's respectfully, 
 
 ' G. C. Smith.' 
 
 * Loudon, Jatiiiary 13, 1821. 
 * Sir, 
 
 * Nearly two years since, some friends 
 ' to the revision of our penal code addressed to 
 
 * their correspondents in various parts of the 
 
 * country, a letter calling their attention to the 
 
 * frequency of the infliction of capital punish- 
 
 * ments, and the failure of such severity to 
 ' prevent the increase of crime. The City of 
 
 * London had already presented a petition to 
 
 * Parliament, praying their immediate and seri- 
 
 * ous consideration of a subject so important to 
 
 * the community. Since that period a consider- 
 ' able number of petitions have been presented, 
 
 * and the House of Commons has instituted a 
 
 * very extensive investigation into the effects of
 
 198 ON THE CRIMINAL LAW. 
 
 * the punishment of death, with a view of substi- 
 
 * tilting some other punishment for particular 
 
 * crimes. Some acts have already received the 
 ' sanction of the legislature repealing capital 
 
 * punishment in cases where indeed, if ever, it 
 
 * has rarely been inflicted, and where, in the 
 ' almost unanimous judgment of parliament, the 
 
 * offence did not warrant the taking away of 
 
 * life. In the most important classes of crimes, 
 
 * however, nothing has been done to ameliorate 
 
 * the law, and recent experience shows us that 
 
 * repeated and constant exertions are by some 
 ' still deemed necessary and expedient, though 
 
 * we look in vain to any proof of the efficacy 
 
 * of a system so repugnant to humanity. It is 
 
 * very desirable that the public attention should 
 
 * be again called to this question, on which so 
 
 * justly depend the safety and property, and 
 
 * the lives of so many of our fellow creatures, 
 
 * and should those with whom you are in the 
 
 * habits of acquaintance unite in thinking that 
 
 * the punishment of death might in many cases 
 ' be safely abolished, and other modes of pu- 
 
 * nishment substituted, without endangering 
 
 * either life or property, it would most materi- 
 ' ally tend to ensure an attentive consideration 
 
 * of the subject, and the adoption of the most
 
 ON THE CRIMINAL LAW. 199 
 
 * advisable measures, if they would express 
 
 * their opinions by petitions to both Houses of 
 ' Parliament. 
 
 * The following are among some of the rea- 
 
 * sons for the diminution of capital punishment 
 
 * which were suggested on a former occasion. — 
 
 * 1. That the perpetration of crimes ought to be 
 
 * repressed by punishments the most lenient, 
 
 * provided they are equally efficacious, which is 
 
 * most consonant to the humane doctrines of our 
 
 * christian faith, and to the express declaration 
 
 * of Him who hath said, * / will have mercy and 
 ^ not sacrifice: — 2. That the injliction of capital 
 
 * punishment is not efficacious for the prevention of 
 
 * crime, but on the contrary the efficacy of that 
 ' penalty to a vast variety of offences, differing most 
 
 * widely in their degree of moral guilt, tends to im- 
 ' punity, and consequently to the increase of crime : 
 
 * that this position is proved by experience, 
 
 * crime having si/u^e 1805 increased in the ratio of 
 
 * three and a half to one, which cannot be satis- 
 
 * factorily accounted for by ascribing it to any 
 
 * temporary causes; thatdaily experience shows 
 
 * us that the judges and advisers of the croicn cannot 
 
 * execute the law, because of its undue severity ; that 
 
 * prosecutors for the same reason ivill not prosecute, 
 
 * witnesses trill not come forward, or will endea- 
 ' vour to shape their evidence not to the strict
 
 200 ON THE CRIMINAL LAW. 
 
 ' truth, but to the side of mercy, and that juries 
 ' will, instead of considering guilty or not 
 ' guilty, weigh whether the alleged crime de- 
 ' serves the legal punishment, and find their ver- 
 
 * diet accordingly: that the consequence is, 
 ' crime flourishes and blood is shed in vain. — 3. 
 ' That capital punishment is irremediable, and 
 ' all human tribunals fallible ; that sometimes 
 ' the innocent suffer, and in the time of Lord 
 ' Hale, no less than six did suffer at our as- 
 
 * sizes, as he himself has declared, and that it 
 ' is not in the power of man, who thus violently 
 ' wields the authority of God, to make retri- 
 
 * bution. — 4. lliat a repetition of these barbarous 
 ' spectacles hardens aiul demoralizes, and debases 
 
 * those who attend them ; that though they may on 
 ' some occasions deter by fear, yet that such a 
 
 * power of preventing crime is much over- 
 
 * balanced by the disinclination of persons 
 Vaaarieved to resort to law, where the life of a 
 
 * fellow creature is the forfeit ; that therefore 
 
 * the total impunity arising from affixing death 
 
 * as a punishment, is much more injurious to 
 
 * honesty and morality, than the fear excited by 
 
 * executions is beneficial. — 5. That many of our 
 
 * penal laws took their rise in ignorant and 
 ' savage times, and are now utterly repugnant 
 ' to the general feeling of society, and are no
 
 ON THK CRIMINAL LAW. 201 
 
 more adapted to the present day than the re- 
 newal of bonfires at Smithfield, or trials by 
 battle. That Englishmen of the 19th century 
 require a system consonant to their religion, 
 proportioned to the moral guilt of the offender, 
 and such as every merciful individual can 
 with justice to his own conscience be the 
 agent of inflicting upon the guilty, and yet say 
 with truth, " I do as I would be done unto." — 
 6. That the present penal law^s of this country 
 deserve not the appellation of a system, be- 
 ing formed on no fixed principles of justice 
 or gradations of crime, confounding treason 
 and murder with breaches of trust, and acts of 
 mere dishonesty; thus protecting, or rather 
 purporting to protect the loss of property by 
 the same punishment as life and limb. That 
 the wisest statesmen, the ablest philosophers, and 
 the most erperienced laicyers, have all joined in 
 deprecating such unnatural severity and dis- 
 regard of life, and very many of them with Sir 
 W. Blackstone, who declared, that had a com- 
 mittee been appointed but once in a hundred 
 years to revise the criminal laws, it could not 
 have continued to this hour a felony without 
 benefit of clergy to be seen for one month in 
 company with gipsies.'
 
 202 ON THE CRIMINAL LAW. 
 
 The preceding letters and instructions have 
 been given entire, in order that the connection 
 betw^een them, and the petitions which have 
 since been laid before parliament, may be put 
 beyond dispute. The letters prove the perse- 
 verance and activity with which the instruc- 
 tions have been circulated, and the petitions 
 afford equally conclusive evidence of the effects 
 with which they have been followed. Those 
 who take the pains to peruse the whole fifty 
 or fifty-one petitions, which during the session 
 of 1821 were laid before the House of Com- 
 mons for the revision and mitigation of the cri- 
 minal law will find that only four or five of them 
 can be truly said to be drawn up with ordinary 
 judgment or discretion, or bear any marks of 
 having been dictated by the genuine senti- 
 ments or feelings of the persons resident on the 
 spot where they purport to have been drawn 
 up. Every one of the others has more or less 
 closely, or at more or less length, adopted the 
 arguments and expressions to be found in the 
 circular of Mr. Smith's * patient but persever- 
 ing and zealous persons;' and so minutely fol- 
 lows even the exaggerations and mistakes of 
 that portion of the instructions which it hap- 
 pens to resemble, that the coincidence raises 
 the most violent possible presumption of its
 
 ON THE CRIMINAL LAW. 203 
 
 being the original from which the whole of 
 these petitions were copied. When the number 
 of places to which these instructions may have 
 been sent, and the unsparing exertions which 
 have been taken to promote their object, are 
 taken into account, it ought rather to create 
 surprise that they are so few, than that they 
 should be so many. Looking at them as they 
 are, however, they are entitled to respect, and 
 there is no desire entertained to deprive them 
 of any portion of that consideration to which 
 they may be thought entitled when their his- 
 tory comes to be fully known. It is only main- 
 tained, that there is no foundation whatever for 
 representing the petitions hitherto presented to 
 parliament, almost the whole of which appear 
 to have been drawn up by the hands, or at the 
 express solicitation, of the friends and mem- 
 bers of an extremely active, though not pohtical, 
 party, and signed by individuals more remark- 
 able perhaps for easiness of nature than com- 
 prehensiveness of understanding, as an ade- 
 quate testimony of the general feelings respect- 
 ing criminal law which pervades the country. 
 
 It has been asked, if these petitions do not 
 express the general sentiments of the country, 
 how happens it that none have been presented 
 of an opposite tendency? Because there never
 
 204 ON THE CRIMINAL LAW. 
 
 is the same degree of union and alacrity among 
 those who defend laws as in those who attack 
 them, and because the mass of the people, 
 never having bestowed much attention on 
 crimes and punishments, leave the regulation of 
 them, as they ought to do, to the legislature. 
 Only two petitions of that sort were last year 
 laid before the House of Commons; but when 
 a sufficient estimate has been made of the num- 
 ber, wealth, and character of the persons by 
 whom they were subscribed, and the interest 
 which they had at stake when they were pre- 
 sented, they will be found to form a counter- 
 balance to the whole catalogue of those which 
 pray for a general and indefinite mitigation of 
 the penal law. 
 
 One of the petitions came from the bankers 
 of London, and the other from the bankers of 
 Bristol, two of the most wealthy and intelligent 
 bodies in the country, and were signed by a 
 very large proportion of the most respectable 
 individuals of which they consist. It is true 
 these petitions relate only to forgery, and their 
 ostensible object is to declare to the House, 
 that, in the judgment of the petitioners, it 
 would be highly inexpedient to punish forgeries 
 on private bankers less severely than forgeries 
 on the bank of England. But there is another
 
 ON THE CRIMINAL LAW. 205 
 
 and much more important opinion which they 
 involve as distinctly though somewhat more in- 
 directly. It is, that the punishment for forgery 
 on private bankers, proposed by the bill of 
 1821, was really insufficient to prevent the 
 commission of the crime. The steps which 
 they took were unnecessary and absurd on any 
 other supposition. The punishment which it 
 was proposed to substitute for death in case of 
 private forgeries, was fourteen years imprison- 
 ment with hard labour. This punishment would 
 either have been sufficient to prevent private 
 forgeries, or it would not. If it would not, for- 
 geries would still have been committed on pri- 
 vate bankers, although forgery on the Bank of 
 England might at the same time have been 
 committed with absolute impunity. If it would, 
 it could have made no difference to private 
 bankers, though forgery on the Bank of England 
 had been rendered absolutely impossible. Had 
 they regarded that security which was pro- 
 posed to be given to them as sufficient, they 
 could with no propriety have complained, 
 though that of the Bank of England had been 
 still greater. To take it for granted that forgers 
 will prefer running the risk of the lighter 
 punishment than the heavier, is extremely rea- 
 sonable; but to suppose also tliat forgery
 
 206 ON THE CRIMINAL LAW. 
 
 would still be practised, even although the 
 lighter punishment were sufficient to prevent it, 
 is too palpable an absurdity to suppose that 
 men of so much acuteness as the petitioners 
 could be guilty of it. There can be little doubt, 
 therefore, that they really thought fourteen 
 years imprisonment with hard labour an insuf- 
 ficient punishment for forgery on private per- 
 sons, but that as they well knew there was little 
 prospect that capital punishment for forgery on 
 the Bank of England would be abolished, it was 
 an equally efficacious and less invidious re- 
 quest, that forgery on private bankers might be 
 punished in the same manner with forgery on 
 the Bank of England, instead of praying gene- 
 rally that forgeries on private bankers might 
 still continue capital. 
 
 These petitions of the bankers also show how 
 difficult it is to form any just notion of the pre- 
 vailing sentiments of the people of England on 
 the punishment of any particular offence. While 
 petitions in favour of abolition of capital punish- 
 ment in forgery and other cases were flowing in 
 from those who could be but remotely affected 
 by the alteration of the law, the persons whom 
 the bill most materially concerned did not ex- 
 press their disapprobation of it till almost the 
 last day within which they were permitted to
 
 ON THE CRIMINAL LAW. 207 
 
 do SO. If a class of men possessing peculiar 
 power and opportunity of protecting their own 
 interests, were so tardy in taking any steps for 
 that purpose, it is a very possible supposition 
 that objections to projected changes in other 
 branches of the criminal law may generally 
 prevail among other ranks of the community, 
 though they have never dreamt of petitioning in 
 order to make their opinions known? But the 
 members of the House of Commons may by 
 this time have come to perceive, that instead 
 of endeavouring to ascertain the sentiments of 
 the whole people of England about criminal law, 
 they might be more profitably employed in 
 endeavouring to ascertain their own. The pre- 
 cipitation and inconsistency which marked the 
 whole train of their discussions with respect to 
 the punishment of forgery in 1821, show their 
 opinions on some of the most important points 
 in the whole range of penal jurisprudence, to 
 be to the last degree vague, wavering, and un- 
 connected. When the bill for abolishing capital 
 punishment in cases of forgery was introduced, 
 what was called its principle was received with 
 acclamations by many members, and the bill 
 itself met with a favourable reception from a 
 majority of those who were present in the 
 House. As the discussion advanced, and the
 
 208 ON THE CRIMINAL LAW. 
 
 eftects of this recognised principle began to be 
 more distinctly perceived, doubts sprung up re- 
 specting the expediency of one of its provisions 
 after another, and even Dr. Lushington, if the 
 report in the Times newspaper of what he said 
 on the 24th of May be correct, felt so little con- 
 fidence in its efficacy, that he talked of the 
 measure merely ' as a great e.vperiment which 
 ' was going to be made upon the commercial world.' 
 At each step fresh difficulties arose and exemp- 
 tions multiplied, and before the bill was thrown 
 out altogether, that which the House had begun 
 by establishing as a principle, they had them- 
 selves imperceptibly deprived of almost all par- 
 ticular application. 
 
 Whatever course the House of Commons may 
 hereafter think proper to pursue for the im- 
 provement of Criminal Law, it is greatly to be 
 desired both for its own credit and the good of 
 the country, that it should be circumspect and 
 steady. Nothing is more unbeseeming to the 
 character of a deliberate assembly, than rashly 
 to assent to more lofty resolutions at the outset, 
 than upon more mature reflection it is found 
 possible to reduce to practice. Sooner or later 
 it must condescend to retrace its steps, and if 
 there is one instance more than another in 
 which this is sure to happen, it is where gene-
 
 ox THE CRIMINAL LAW. 209 
 
 ral rules have been laid down for tlic punish- 
 ment of all offences of the same name, without 
 having sufficiently attended to their difl'erent 
 natures and varieties. This mistake is a natural 
 consequence of that ardent sanguine turn of 
 mind which is visible throughout the evidence 
 given before the Committee, the Report, and 
 the petitions laid before parliament. The real 
 improvement of criminal law will advance but 
 slowly until this enthusiasm has subsided, and 
 until those who promote reformation are willing 
 to content themselves with such ameliorations as 
 prudence and experience will allow to be intro- 
 duced into this intricate branch of civil policy. 
 
 2. We come now to the consideration of the 
 the second and last general proposition which 
 is intimated in the Report, that the punishment 
 of death may hereafter be superseded by an 
 improved system of transportation and impri- 
 sonment. 
 
 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 
 
 p
 
 210 ON THE CRIMINAL LAW. 
 
 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 taught others to do. His just aversion to 
 the cruelty which marked the administration 
 of criminal justice in his own country has 
 driven him into an opposite extreme, and in 
 several passages he suffers language to escape 
 him, which cannot fail to bring the whole of his 
 doctrines into suspicion with those who reve- 
 rence 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 who then 
 reigned in Europe. The Grand Duke Leopold 
 of Tuscany took the lead in the career of re- 
 form, and from the success which that sove- 
 reign says attended the first steps he took to 
 mitigate the penal code of his dominions, he 
 was induced, on the 30th of November, 1786, 
 to issue the celebrated edict from Pisa, by 
 which he proclaimed the total abolition of capi- 
 tal punishment throughout the states of Flo-
 
 ON TflK C'RfMIV \I. LAW. 21 I 
 
 rence. In the preamble to the edict lie ex- 
 presses himself to the following eftcct: 
 
 * Con la pill grande sodisfazione del nostro 
 
 * paterno cuore abbiainofinalmentericonosciuto 
 
 * 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 dclitti, ha considerabilmente dimi- 
 
 * nuiti i piu communi, e resi quasi inauditi gli 
 
 * atroci, e quindi siamo venuto nella determina- 
 
 * zione di noii piu lungamente differire la ri- 
 
 * forma della legislazione criminale, con la quale 
 
 * abolita per massima costante la pena di morte, 
 
 * come non necessaria per il fine propostosi 
 
 * dalla societci nella punizione dei rei,' kc. 
 
 Whether crimes had really diminished to the 
 extent here described may not be altogether 
 certain, but there can be no dobut that Tus- 
 cany, under his administration, enjoyed a de- 
 gree of tranquillity and prosperity, which will 
 cause his name to be transmitted, as the good 
 Leopold, to remote posterity. But it is a mis- 
 take to suppose that the changes effected by 
 him in the penal code were the only causes to 
 which this happy state of things was owing. 
 He at the same time essentially improved other 
 .p 2
 
 212 ox THE CRIMINAL LAW. 
 
 branches of the law, as well as the executive 
 government, and commercial regulations ; and 
 when a number of simultaneous measures, whe- 
 ther ultimately beneficial or not, concur in the 
 mean while to ameliorate the civil and political 
 condition of a country, it is difficult to deter- 
 mine what precise 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. Within ten years 
 from the promulgation of the edict, the pro- 
 gress of the French arms disturbed, and 
 soon afterwards finally stopped its operation : 
 and none who are acquainted with the slow 
 effects of any change in law or government, 
 will think this period sufficient to afford con- 
 clusive evidence of the success of so bold an 
 experiment. 
 
 Leopold's brother, Joseph, was perhaps a still 
 more indefatigable legislator than himself, and 
 equally zealous in his endeavours to promote 
 the same mitigation of punishment throughout 
 his various states ; but he was thwarted in his 
 schemes by different orders of his subjects, and 
 instead of the total abolition of capital punish- 
 ment, could only effectuate its extreme restric- 
 tion. Since the promulgation of the new Aus- 
 trian penal code in 1787, it has been at least
 
 ON THE CKIMIXAL LAW. 213 
 
 twice subsequently altered, and is said to be 
 again under revision. This does not lead one 
 to suppose that it has given much satisfaction 
 in any of the forms into which it has hitherto 
 been moulded, and I have heard, from what 
 might be considered competent authority, that 
 the gaols in Austria are at this time insufficient 
 to contain the prisoners and convicts; and that 
 the number of executions at Vienna is greater 
 in proportion to its population, than that which 
 has for several years back taken place in 
 London. 
 
 The Empress Catherine affected the same 
 admiration for the new doctrines as Leopold 
 and Joseph, and she also abolished capital 
 punishment by public proclamation ; but whe- 
 ther the Autocrat of all the Russias at that time 
 either invariably enjoined or could practically 
 enforce a due execution of the letter of the law 
 throughout her vast and partially civilized do- 
 minions, it would not be easy accurately to 
 determine. I have always heard it stated, how- 
 ever, that this abolition was but an empty 
 declaration, and that the Jxuout without reserve 
 was as certainly fatal to the criminal condemned 
 to sustain it, as the most undisguised sentence 
 of death could have been. As the knout w'Uh^ 
 out reserve is now said to be disused, capital
 
 2i4 ON THli CRIMINAL LAM'. 
 
 punishment would appear to be really as well 
 as nominally repealed, unless consignment for 
 life to the bottom of a mine in Siberia may be 
 regarded as one of its varieties. Whether the 
 penal laws of Russia, however, are, upon the 
 whole, gentle or severe, few persons out of 
 that kingdom are qualified to speak with ac- 
 curacy. No code has hitherto been drawn 
 up, nor any collection of criminal laws printed. 
 Those to whom their administration is com- 
 mitted, select that ukase which they believe 
 most applicable to the particular case, from the 
 thousands which have proceeded from the will 
 / of the sovereign, or a new one is framed ex- 
 pressly for the occasion, when any new com- 
 bination of circumstances is thought to demand 
 it. The facts respecting the increase or dimi- 
 nution of the number and degree of offences in 
 Russia at different periods, are also too scanty 
 on which to found any important conclusion 
 respecting the wisdom of the systems which 
 have been there successively in operation. 
 
 The late revolution which changed so many 
 things in France, also softened to a remark- 
 able degree its criminal law ; but the unsettled 
 state of that kingdom ever since the mitigation 
 took place, prevents any certain inference from 
 being drawn respecting its ultimate effects.
 
 ON THE CRIMINAL LAW. 215 
 
 It is mentioned, however, that several altera- 
 tions have been made upon the new system 
 of law since it was first introduced, and if 
 that should be the case it shows that it can 
 hardly yet be 'deemed to rest upon a permanent 
 foundation. From some facts which have come 
 within my own knowledge, and on which I 
 think dependence may be placed, I suspect it 
 will be found that crimes have of late years 
 increased in France both in number and enor- 
 mity, and though it would be unreasonable, 
 merely because this state of things exists, to 
 ascribe it to the provisions of the existing law, 
 yet if the facts alluded to should prove authentic, 
 it must be admitted on the other that this 
 kingdom exhibits none of the advantages with 
 which a diminution of capital offences is said 
 to be attended. 
 
 A great mitigation of penal law has also taken 
 place in Pennsylvania, New York, and some of 
 the other United States of North America. 
 Several documents are printed in the Appen- 
 dix to Mr. Roscoe's Treatise on Penal Juris- 
 prudence, which contain the latest and most 
 authentic information I have seen respecting 
 the effects of this alteration, but the particu- 
 lars they supply are in every point too scanty 
 to allow any conjecture to be drawn, whether
 
 216 ON TIJE ClllMIKAL LAW. 
 
 it will be practicable to maintain the good 
 order of the country by means of the mitigated 
 punishments which are now in use. The ad- 
 missions to be found at pages 23 and 53 of the 
 Appendix alluded to, which have been made by 
 those who are professedly friendly to the ex- 
 treme restriction or abolition of capital punish- 
 ment, and the general bearing of the facts dis- 
 closed in the documents, render the point ex- 
 ceedingly problematical. 
 
 Bavaria is another of the slates which, for a 
 few years, made trial of the extreme restriction 
 of capital punishment. In the course of 1821, 
 however, the following passage appeared in 
 page 346 of the second number of the Annales 
 de Legislation, a work confined entirely to sub- 
 jects of jurisprudence, which is periodically 
 published at Geneva. ' En Allemagne on s'est 
 
 * occup6 avec profondeur de rechercher les 
 
 * bases sur lesquelles devaient reposer la 16gis- 
 
 * lation p(inale, les sources de droit de punir, et 
 ' la manicre la plus efficace de I'employer. Les 
 ' travaux de ces savans juriconsultes contien- 
 
 * nent des tresors a exploiter ; il serait int6- 
 
 * ressant de faire passer aux autres nations la 
 
 * connaissance de leurs divers systemes. Parmi 
 
 * les ccrivains qui se sont distingu6s dans cette 
 ' carri^re, M. de Feuerbach tient sans centre-
 
 O.V THE C.UI.MINAL I, AW. 217- 
 
 * dit le premier rang; c est i\ lui que la Baviere 
 
 * doit son code public en 1813; et s'il est vrai 
 
 * que, malgrc tons les soins et toutes les pre- 
 ' cautions prises pour rendre cet ouvrage le 
 
 * plus parfait possible, il a fallu dans si peu 
 
 * d'ann^es y ajouter plus- dc cod nouvcllcs ; il est 
 
 * certain, que ceux qui ne nous croyent pas 
 
 * propres a crcer des legislations nouvelles 
 
 * pourraient tirer de ce fait un argument au 
 
 * moins spccieux.' They unquestionably might; 
 and if, as the tone of this extract renders pro- 
 bable, these nouvelles should indicate a tendency 
 to return to that severity of punishment, from 
 which M. Feuerbach had departed, it affords 
 good ground for those to pause who have oot 
 yet launched out into the open ocean of reform. 
 
 Some of the mildest penal codes have now 
 been adverted to, which are known among the 
 States of Europe ; and though it is proper to 
 speak of them with that caution which every 
 one will do who has experienced the difficulty 
 of procuring satisfactory and exact information 
 on such a subject, yet one may venture to 
 affirm, that neither singly nor collectively taken, 
 do they afford conclusive evidence that the 
 entire abolition or extreme restriction of capital 
 punishment has yet been fully and successfully 
 tried.
 
 218 ON THE CRIMINAL LAW. 
 
 It is also indispensably requisite to consider 
 what punishments can be substituted in those 
 cases in which it has been suggested that 
 death should no longer be inflicted. Mr. Bux- 
 ton says ' he is prepared to state that imprison- 
 
 * ment, with hard labour, and occasional soli- 
 ' tary confinement, and constant inspection, 
 
 * and rigid discipline, is, in fact, the punish- 
 
 * ment required.' If he should be thought to 
 have here mistaken a description of the ob- 
 ject for the attainment of it, the course he 
 follows is at least clear and consistent. Enter- 
 taining the conviction which he has expressed, 
 he was bound to the utmost of his power to pro- 
 mote the introduction of this system on which 
 he places so much reliance. The two follow- 
 ing gentlemen, who took part in the same 
 debate, stand in a widely different situation. 
 Mr. W. Courtenay observes, in speaking of the 
 bill which was introduced for the abolition of 
 capital punishment for forgery, ' one argument 
 
 * urged against the proposed bill had given him. 
 
 * considerable pain, namely, that the punish- 
 
 * ment of death ought to be continued, because 
 
 * we were deficient in effectual secondary pu- 
 
 * nishments. Now he could not consent to the 
 
 * continuance of capital punishments on such 
 
 * grounds.' Adverting to the punishment of
 
 0\ [UK CRIMINAL LAW. 219 
 
 transportation, Mr. Wilmot still more energeti- 
 cally observed, ' that every body allowed that 
 ' it was practically inoperative. It was an ad- 
 
 * ditional reason with him in voting for this bill, 
 
 * that it would compel the legislature to look out 
 
 * for some secondary punisJiment more effectual.' 
 Among all the theoretical volumes which have 
 been written in ancient or modern times on 
 the government of mankind, there is not to 
 be found a more alarming principle of legis- 
 lation, than that which is here practically 
 adopted by these two members of the House 
 of Commons. To withhold countenance and 
 support from those who resist, postpone, or 
 discourage improvements which might with 
 reasonable skill and energy be introduced, is 
 not only justifiable but highly patriotic ; but to 
 do this not only without pretending to know 
 whether such improvements can be introduced 
 or not, but when it is known that the most 
 persevering efforts which have been used for that 
 purpose have failed of effect, is both stubborn 
 and preposterous. Whatever the nature of the 
 ties may be by which the good order and tran- 
 quillity of society is maintained, they cannot iu 
 prudence be dissolved till others are provided in 
 their stead. Yet this is what many persons 
 are anxious to do, who do not believe, with 
 
 \
 
 220 ON THE CRIMINAL LAW. 
 
 Mr. Buxton, in the efficacy of imprisonment 
 and hard labour, and yet are impatient to force 
 forward the extreme mitigation of criminal law. 
 They admit the discovery of a secondary pu- 
 nishment to be still a desideratum, and yet 
 they would immediately either abrogate or 
 greatly restrict capital punishment, in blind 
 expectation that some succedaneum may at a 
 future period be discovered to supply its place. 
 It is the want of this secondary punishment, 
 however, which always has been, and is likely 
 to remain, an insurmountable objection to 
 the desired mitigation of criminal law. A 
 numerous list of writers, of whom Bentham 
 and Dumont may deservedly be placed at the 
 head, have shown, by means of multiplied defi- 
 nitions, divisions, and disquisitions, 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 on the criminal. On these and collateral 
 topics, they reason with great sagacity and 
 penetration, but too frequently with a degree 
 of refinement which has no other termination 
 than the attainment of speculative truth. As
 
 ON THE CHIMIXAL LAW. 221 
 
 soon as it becomes necessary to reduce their doc- 
 trines to practice, it is perceived that no such 
 variety of punishments has been discovered as 
 almost all their speculations presuppose; 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 exe- 
 cution, although dedicated to that single object. 
 The result consequently is, that the improved 
 punishments recommended by theoretical wri- 
 ters would almost invariably entail a heavy 
 additional burthen on the community, while it 
 is exceedingly doubtful whether their effects 
 would not be worse, both on the public and the 
 criminal, than that for which they would be 
 substituted. No better proof of this could be 
 desired than that which Leopold, Joseph, Ca- 
 therine, and their preceptor Beccaria, have left 
 us. In section 28 of Beccaria's Treatise on 
 Crimes and Punishments, which contains the 
 only truly practical observations to be found in 
 the work, he gives his opinion on the nature 
 of punishment in the following words : — ' Non 
 
 * h I'intenzione della pena che fa il maggior 
 
 * efFetto suir animo umano, ma Testensione di 
 
 * essa: perch^ la nostra sensibilita c piu facil- 
 
 * mente e stabilmente mossa da mini me ma re- 
 ' plicate impressioni, che da un forte ma passa-
 
 222 ON THE CRIMINAL LAW. 
 
 * giero movimento. Non e il terribile ma pas- 
 
 * sagiero spettacolo della morte di imo scelerato, 
 
 * ma il liingo e stentato esempio di un' iiomo 
 
 * privo di liberta, die diveniito bestia di servigio, 
 
 * ricompensa colle sue fatiche quella societi\ che 
 
 * ha offessa, che fe il freno piu forte contro i 
 
 * delitti.' It is unaccountable, though not quite 
 singular, that a philosophical inquirer should at 
 the same moment display such excess of sym- 
 pathy on the one hand, and deficiency of it on 
 the other; for surely nothing short of the most 
 confirmed perversion of affection and under- 
 standing, could induce a man to think he per- 
 formed an act of mercy by saving the life of a 
 rational creature for the avowed purpose of de- 
 grading him to the condition of a beast. Yet 
 this is the legitimate consequence of Beccaria's 
 reasoning as well as his expressions; and who- 
 ever examines the penal laws of Austria, Tus- 
 cany, and Russia, will perceive that in this sense 
 his royal disciples understood and endeavoured 
 to exemplify his doctrine. In the Austrian code, 
 we find that the punishment usually substituted 
 for death consists in confinement from 5 to 20 
 years, or for life, or in that dreadful form of soli- 
 tary confinement, called in the Italian version of 
 this code carcere duro and carccre durissimo, 
 according as the hcinousness of the crime or
 
 ON THE CRIMINAL LAW. 223 
 
 the circumstances of aggravation require one 
 or other of these degrees of severity. In Russia, 
 condemnation to the mines in Siberia may be 
 decreed for any definite length of time, or for 
 life ; and in Tuscany, the edict of Leopold 
 authorises confinement for 5, 10, 20 years, and 
 for life : in other cases, it inflicts condemnation to 
 the gallies for life and in chains. Imprisonment 
 under the American law is also inflicted from I 
 year to 20, and for life. Due reflection on 
 these heavy and protracted punishments afl'ords ' 
 reasonable grounds to doubt whether it would 
 not be an act of greater mercy even to the cri- 
 minal himself, that after due time allowed for 
 preparation he should at once be deprived of 
 existence, rather than to have his mind and 
 body gradually worn down and destroyed by 
 imprisonment on board the hulks, within the 
 walls of a prison, or in the bowels of the 
 earth. Mr. Buxton, at page 87 of his Prison 
 Discipline, mentions the case of an active 
 farm-servant * almost driven out of his senses 
 by solitary confinement;' and in September, 
 1819, I witnessed a still more remarkable 
 instance in Austria of the suffering which 
 real solitary confinement for Ife is capable of 
 creating. A labourer in that country was, in 
 the year 1817, convicted by the oath of one
 
 224 ox THE CRIMINAL LAW. 
 
 witness, confirmed by the strongest circum- 
 stantial evidence, of having murdered one of 
 his neiglibours. The criminal did not confess 
 at the trial, and for want of such confession 
 could only be condemned by the present law 
 to perpetual solitary imprisonment. He bore 
 it patiently two years, but at the end of that 
 period, the weight of his present and prospec- 
 tive sufterings became so insupportable, that 
 he then deliberately confessed, received sen- 
 tence of death, and I saw him dragged through 
 the streets of Vienna on the way to execution. 
 Few people, it is believed, who sufficiently con- 
 sider ihe nature and intensity of the punish- 
 ments now mentioned, would think the adop- 
 tion of them in any point of view an advisable 
 method of mitigating the Criminal Law of 
 England. 
 
 It may be still urged that much additional 
 light has of late years broke in upon the whole 
 subject of penal law, and that it has now been 
 discovered, that without resorting either to 
 capital punishment, or the severe secondary 
 ones contained in the codes of which we have 
 been speaking, crimes may be effectually re- 
 pressed by mild punishments certainly and in- 
 variably inflicted. Some devoted adherents of 
 the system of perfectibility go one step farther.
 
 ox THE (rU.MIXAI. I, AM, 225 
 
 and with Sneer, in the Critic, anticipate tlic 
 era when tliey will be repressed without nny 
 punisliment at all. ' This/ says he, ' is ;i 
 ' comedy, on a new phan, replete with wit and 
 
 * mirth, but of a most serious uK^ral. Yon see 
 
 * it is called The Reformed Ilouaehrea/ar, where 
 
 * by the mere force of humour, housebreaking 
 
 * is put in so ridiculous a light, that if the 
 
 * piece only has its proper run, 1 have no doubt 
 
 * but that bolts and bars will become useless 
 
 * by the end of the season. — In short, his idea 
 
 * is, to dramatise the penal code, and make the 
 
 * stage a court of ease to the Old Bailey.' 
 Much reasoning has been employed by very 
 grave men respecting the possible mildness of 
 punishments, scarcely less visionary, and iar 
 less harmless than the schemes ascribed to the 
 author of the Reformed Housebreaker. There 
 is no authority to be found either in Revelation 
 or the aspect of the present times, for believing 
 that provided punishments were certain, al- 
 though extremely mild, would effectually pre- 
 vent the commission of most sorts of offences. 
 When it is assumed that a particular result 
 would follow, provided irumslnneiits were rendered 
 certain, recourse is had to one of the hypothe- 
 tical arguments sometimes used in controversy, 
 which frequently obstruct, but seldom facilitate 
 
 Q
 
 22G ON THE CRIMINAL LAW. 
 
 the approach to truth. But in reality, no such 
 certainty, nor any great approximation to it can 
 exist. The non-appearance or misconduct of 
 witnesses on the trial, irregularities in the pro- 
 ceedings, and the fallible and differing judg- 
 ments of judges and juries will always afford 
 numberless chances to the guilty to escape, in 
 addition to that which they estimate more than 
 all the rest, the chance that they shall never 
 be detected. Certainty of punishment is as 
 unattainable as certainty of conviction. No 
 table of punishments has been constructed so 
 accurate and ample as to apply to all kinds 
 and gradations of offences ; nor is any country 
 to be found in which the punishment pre- 
 scribed by law has been invariably inflicted. 
 In the mildest as well as severest systems of 
 penal law, a discretionary power has always 
 been lodged somewhere, and the real question 
 is, to what extent, and by whom it ought to 
 be exercised. The objections to this discre- 
 tionary power are forcibly stated by Sir Sa- 
 muel Romilly in his Observations on Criminal 
 Law. He complains that no two judges exer- 
 cise it in the same manner ; and that one man 
 may be executed for a comparatively venial 
 offence on account of bad past conduct, while a 
 participator in the same transgression escapes
 
 ON THE CRIMIVAL LAW. 22? 
 
 with a more trivial punishment, by which 
 means the pubhc loses the beneht of example, 
 and never knows the real crime for which the 
 severer punishment has been inflicted. Though 
 these pbjections are not without foundation, 
 they are pressed a great deal too far. As 
 long as human understandings differ, the ad- 
 ministration of law and equity under different 
 judges will differ also, whatever pains may be 
 taken to prevent it; and the public invariably 
 display greater penetration in discovering the 
 real cause of distinctions of punishment than 
 Sir Samuel Romilly has supposed. If two men 
 are convicted of the same crime, one of whom 
 is an old and the other a new off'ender, if the 
 first is executed and the second escapes with 
 transportation or imprisonment, the public sel- 
 dom mistakes the true reason of the distinction 
 made between them. It is one which, in the 
 administration of every law, there ought to be 
 an opportunity of making. If a confirmed 
 London thief, for instance, who has long lived 
 by stealing, but has all the while continued to 
 elude the vigilance of justice, is at last convict- 
 ed ; or if a person should be convicted of passing 
 forged notes, who is, at the same time, well 
 known to be a forger, every principle of equity 
 demands that a more severe punishment should be 
 
 q2
 
 228 ON THE CRTlVriNAL LAW. 
 
 inflicted on such hardened malefactors as these, 
 than on those who though they have been parti- 
 cipators with them in one particular act of delin- 
 quency, have been but recently seduced from the 
 paths of virtue. Sir S. Romilly says, if this dis- 
 cretion is to be continued, it should be metho- 
 dised, and that general rules should be framed for 
 the instruction of the judges. To this there can 
 be no objection, provided the end in view is at- 
 tainable either by general rules applicable to the 
 whole Criminal Code, or special ones adapted 
 to each particular case. The only fear is that 
 if the attempt were made, there would be found 
 an insurmountable difficulty in making any 
 kind of rules concise and intelligible. Ad- 
 mitting, however, that such a plan is practi- 
 cable, the argument here used would in no 
 respect be aflected. All that is contended 
 for is, that under whatever form it appears, 
 however it may be limited, and to whomso- 
 ever it may be committed, this discretion 
 will, and for the furtherance of substantial 
 justice ought invariably to exist. In this 
 country, it is in effect, though not in theory, 
 delegated to the judges; and though it may be 
 inexpedient to trust them with it to so great a 
 degree as at present, it will be found neither 
 practicable nor desirable to deprive them of it
 
 ON THE CRIMINAL LAW. 220 
 
 altogether. The very responsibility which it 
 entails is one of the best securities the country 
 can have that the ministers of justice will be 
 men of capacity and integrity ; and the exertion 
 of it is among the most legitimate means of 
 securing to them that respect and deference 
 which ought to be yielded to their office. In 
 the edict of Tuscany, and in some other lenient 
 codes of Criminal Law, this very discretion is 
 reserved to the judges in express terms, to an 
 extent which is always large, and which, under 
 any of its modifications, would, in this coun- 
 try, appear alarming. In our own system of 
 transportation, it is exercised by the Governor 
 of New South Wales ; and the exertion of it is 
 anxiously provided for in 56 Geo. III. c. 03. 
 which establishes the Penitentiary, from which 
 institution beyond all others uncertainty of pu- 
 nishment, either as to duration or severity, 
 ought, if possible, to have been excluded. Let 
 captal punishment, therefore, be restricted as it 
 may, the nature or duration of the punishment 
 substituted in its stead, must still remain uncer- 
 tain, and the only sort of certainty resulting from 
 the change will be, that capital punishment can 
 no longer be inflicted. Whether such an im- 
 pression would tend to diminish crimes, it is not 
 the present purpose to inquire ; but those who
 
 230 ON THE CRIMINAL LAW. 
 
 take it for granted that certainty of conviction 
 and the inflexible execution of the statutory 
 penalty afterwards, would render punishment 
 equally effectual, though greatly less severe, 
 proceed upon an assumption which is warranted 
 neither by reasoning, the practice of any other 
 country, or the present state of society in 
 England. 
 
 To this state of society, neither in the Minutes 
 of Evidence taken before the Committee, nor 
 in the Report of the Committee itself, nor in 
 any of the discussions respecting the improve- 
 ment of the Criminal Law, either in or out of 
 Parliament, has the slightest allusion hitherto 
 been made ; and yet it seems just as necessary 
 that it should be kept in view by those who 
 would legislate upon it securely, as for a physi- 
 cian to attend to the peculiar constitution and 
 condition of the patient for whom he prescribes. 
 By those who delight to exhibit mankind in the 
 most forbidding aspect, it has sometimes been 
 alleged, that however the form of vice may 
 vary, the amount of it which prevails in any 
 age or country still remains the same. In no 
 sense of the words does this appear to be true; 
 and as far as concerns offences cognizable by 
 law, it is palpably false. In some parts of the 
 world, unless society has been disordered by
 
 ON THE CRIMINAL LAW. 231 
 
 some extraordinary cause, the frequent com- 
 mission of crimes amounts almost to an impos- 
 sibility. Take, for example, the kingdoms of 
 Denmark or Sweden, or the inland states of 
 Germany, where there are few large towns or 
 manufactories, where population is thin, and the 
 inhabitants are bound down to good and orderly 
 behaviour by the strongest of all obligations, 
 those of attachment to their native soil, and love 
 and respect for the relations and acquaintance 
 in the midst of whom they have passed their 
 lives. In such countries, except to provide for 
 a few heinous crimes which now and then un- 
 expectedly burst forth, Uttle restraint of law is 
 necessary. In England, on the contrary, every 
 one of these circumstances is reversed, and it 
 would be difficult to point out another part of the 
 world where the inducements to criminality arc 
 so many, and the restraints upon it are so few, 
 except those which the iron hand of law im- 
 poses. The very wealth with which the country 
 abounds, becomes a plague instead of a bless- 
 ing, and a temptation to illegal acts which 
 besets its people in almost every place and 
 under every form. Its towns, too, from their 
 size and number, tend powerfully to swell the 
 list of offences, by screening abandoned clia- 
 racters from observation, and furnishing them
 
 232 ON THE CRIMINAL LAM^ 
 
 with opportunity and suitable companions for 
 the execution of their unhallowed enterprises. 
 In addition to these fertile sources of guilt, the 
 fluctuations of trade are always, in some district 
 or occupation, throwing* men women and chil- 
 dren out of employment; and it would be strange 
 if idleness, bad habits, and a want of superin- 
 tending care, did not involve some of them in 
 profligacy and delinquency. Last of all, there is 
 that relaxation of the bonds of social and do- 
 mestic intercourse, which dense population and 
 commercial habits naturally produce, but which 
 was never perhaps carried to such a length as it 
 is now in England. People meet and part, be- 
 come familiar or estranged, and contract and dis- 
 solve the various relations in life with a facility 
 and thoughtlessness which in former days was 
 neither known nor imagined. When choice 
 or necessity separates those who have been 
 accustomed to live or deal together, the readi- 
 ness with which new connections may be form- 
 ed, among whom time may be spent in tolerable 
 comfort if not with happiness, makes those 
 who associate together less minute in their 
 inquiries about the dispositions, characters, and 
 history of one another. All this has a perni- 
 cious effect upon society at large, but especially 
 upon clerks, workman, labourers, apprentices,
 
 ON THK CRIMINAL lAM'. 233 
 
 and servants. If they faithfully and adequately 
 perform the services required of them in their 
 several capacities, further inquiry is seldom 
 made about them, and they experience none of 
 those words and acts of kindness which can 
 alone give birth to similar sentiments in return. 
 Interest may command the service of the per- 
 son, but interchange of feeling alone can at- 
 tach the heart. As long as they continue to 
 do their duty, they are permitted in every 
 other respect to live entirely as they list; but 
 whenever it ceases to be performed, either from 
 illness, accident, or misconduct, they are ab- 
 ruptly if not unfeelingly discharged. The con- 
 sequence is, that the respect and attachment 
 which servants and dependants used to show 
 to their masters and superiors, and the care 
 and support which on the other hand they 
 received from them during sickness and old 
 age, has now, to the manifest disadvantage of 
 both parties, almost entirely disappeared. The 
 community also sustains no inconsiderable in- 
 jury ; for it is difficult to say whether the un- 
 controuled command which they have of their 
 spare time and money during the days of pros- 
 perity, or the destitute condition to which they 
 arc reduced on a change of fortune, contributes 
 most largely to the multiplication of crimes.
 
 234 ON THE CRIMINAL LAW. 
 
 That such offences as highway robbery and 
 murder are not so frequent among us as former- 
 ly, is a source of just congratulation. Whether 
 the temper of the times be more repugnant to 
 those atrocities or not, it is certain that the 
 increase of population, the state of the roads, 
 inclosure of commons, and improvement of the 
 country, render the perpetration of them with 
 impunity more difficult. But it is no less certain 
 also that other offences, and those of a character 
 which deeply affect the good order of society 
 and security of property, have notoriously and 
 exceedingly augmented. This fact, which is 
 incontestibly proved by the returns which have 
 been laid before the House of Commons, ren- 
 ders it impossible to join in those encomiums 
 on the morality and religion of the nation, 
 which have sometimes been passed upon it. 
 It would argue unpardonable perverseness of 
 temper, to evince any desire to degrade the 
 character of the nation, either in its own esti- 
 mation or that of others ; but there is no reason 
 why truth should be sacrificed at the altar of 
 popular prejudice. Of all enemies to the real 
 improvement of a state, none are more dangerous 
 than those who encourage the conceit of their 
 countrymen by prompting them to arrogate a 
 species of superiority which they do not possess.
 
 ON THE CRIMINAL LAW. 235 
 
 That the higher, and a considerable proportion 
 of the lower orders, discharge every relative 
 duty of life with a propriety nowhere exceeded, 
 there is good ground to believe ; but that a 
 considerable proportion of the common sort are 
 as profligate and ungovernable as their fellow 
 citizens are exemplary, the evidence and do- 
 cuments printed by the Committee on the Cri- 
 minal Laws of themselves furnish irrefragable 
 evidence. There is reason to think that the 
 very excellence of our constitution may render 
 it necessary to make our penal laws more 
 severe than in those countries where freedom 
 is but imperfectly established. Where every 
 one knows the exact limits of his rights and 
 privileges, and is jealous to an extreme degree 
 of their preservation, no person dares to arrest 
 or controul his actions, however obviously they 
 will end in legal guilt, until he has done some 
 deed which is positively criminal. Magistrates 
 and conservators of the peace are thus frequently 
 obliged to stand by and witness proceedings 
 which they are morally certain will terminate 
 in violence or bloodshed, and which would have 
 been checked at the outset in those countries, 
 where the desirableness of the end makes them 
 less scrupulous about the legality of the means 
 by which it is attained. As it seldom happens
 
 236 ON THE CRIMINAL LAW. 
 
 that any signal good can be secured without 
 some corresponding evil, it is to be feared that 
 an addition to the severity of our penal code is 
 part of the price which the people of England 
 must be content to pay for the liberty of the 
 subject. 
 
 It may now be proper to inquire whether, 
 in the condition in which this country is de- 
 scribed to be, there is any probability that 
 transportation and imprisonment will ever en- 
 tirely supersede the use of capital punishment. 
 
 Transportation now takes place only to New 
 South Wales, and its duration may be either for 
 the limited period of 7, 10, or 14 years, or for 
 life. With whatever intention transportation 
 was first resorted to by this country, there is 
 reason to suspect that it is now continued, not 
 because it answers the salutary ends which all 
 punishment ought to have in view, but because 
 it is the easiest method of getting rid of hordes 
 of convicts whom the law does not know how 
 otherwise to dispose of. Transportation for 
 years is shown by the concurrent testimony of 
 those gentlemen, both in this country and in 
 New South Wales, who have the best means 
 of judging, neither to deter nor reform. The 
 convict goes from the bar, after hearing sen- 
 tence pronounced, with an address of * Thank
 
 ON THE cnrMrvAi. LAW. 237 
 
 you, my Lord' to tlie judge ; is looked upon by 
 himself and his friends as setting out on his 
 travels; in general wears out his time unre- 
 claimed; comes back with his appetite for 
 crimes sharpened by the abstinence to which 
 he has submitted, and is usually soon remanded 
 to his place of banishment, a more corrupt and 
 corrupting member of society than ever. It 
 ought not to be concealed however, as a fact 
 which is mentioned by Mr. Riley in his evidence 
 before the Gaol Committee, that a large propor- 
 tion of those who are sentenced to New South 
 Wales for a limited period never afterwards quit 
 the colony. But as it appears by the tables 
 printed by the Committee on Criminal Laws, 
 that only about a fifteenth part of the whole 
 number of transported felons are at present sent 
 away for life, a considerable number of them 
 must, naturally, from time to time find their way 
 back to England, and some of those who have 
 good means of information on the subject affirm 
 this to be the case. To preclude this return in 
 all cases whatever, and never to inflict transpor- 
 tation but when it is made perpetual, is so 
 strongly recommended by the evidence given 
 before the Committee on Gaols and the Com- 
 mittee on Criminal Laws, that little doubt can 
 remain that the sooner an end is put to trans-
 
 238 ON THE CRIMINAL LAW. 
 
 portation for years, it will, both for the country, 
 the colony, and the convicts, be the better. 
 That this nugatory species of punishment has 
 for a good while past materially contributed to 
 foment wickedness, is proved almost to demon- 
 stration ; but no ray of hope appears that under 
 any modification it can materially tend to as- 
 suage it. The shock of perpetual separation 
 from every thing with which a criminal has be- 
 come familiar, is calculated to produce an effect 
 extremely beneficial; and if the convicts are se- 
 lected from those brought up to country labour, 
 or the most necessary mechanical trades, while 
 their numbers are confined within proper limits ; 
 transportation for life may remain a merciful 
 and efficient mode of punishment. If the popu- 
 lation is scattered, the individuals who compose 
 it, though consisting principally of convicts, 
 have many motives to abstain from crimes and 
 few to commit them ; and accordingly the evi- 
 dence laid before the Gaol Committee, shows 
 that the experiment succeeded so well when 
 the colony of New South Wales was in its in- 
 fancy and only a small number of convicts was 
 transported, that the original settlers, who now 
 receive the name of old hands, have become 
 orderly and industrious members of society. 
 The instant any settlement becomes populous
 
 ON THE CRIMINAL LAW. 239 
 
 this effect entirely ceases. The dread of re- 
 moval to it is destroyed, the chances of escape 
 are multiplied, and the prospect of reformation 
 from the scarcity or remoteness of bad compa- 
 nions becomes more distant. This must in- 
 evitably happen, let the convicts be of what 
 description and character they may ; but if they 
 consist of such a deluge of helpless useless out- 
 casts as have lately been poured upon the 
 coasts of New South Wales, a reference to the 
 evidence given before the Committee and to the 
 information of every respectable person con- 
 nected with the colony, will sufficiently evince 
 how deplorable in every point of view the pros- 
 pects of that improveable settlement must be- 
 come. By injudicious management the mother 
 country wantonly throws away the advantages 
 which such a colony is naturally calculated to 
 yield. Under prudent restrictions with respect 
 to the number and qualifications of convicts, 
 tansportation to New South Wales might con- 
 tinue to prove a salutary punishment, so long as 
 there is any productive fresh land to occupy. 
 Supposing the bulk of the settlers to be persons 
 of orderly behaviour, the convicts to be well 
 selected, and to bear a low proportion to the 
 total population, they would adopt the habits of 
 others instead of communicating their own, and
 
 240 ON THE CRIMINAL LAW. 
 
 their removal from liome might not only be the 
 means of their own reformation, but of advanc- 
 ing the prosperity of the community. In this 
 case the great difficulty would be, to dispose of 
 them in the colony in such a manner as to make 
 transportation still dreaded at home as a punish- 
 ment ; for unless it acted as a punishment, and 
 by that means deterred others from committing 
 the offences for which the convicts had been 
 transported, it could in no degree relieve the 
 parent state, whose interests are now chiefly 
 under consideration. Transportation can, under 
 no circumstances, be longer regarded as a pu- 
 nishment than while the spot to which convicts 
 are carried, is dreaded by them as destitute of 
 society and comfort. At what precise period 
 in the progress of a settlement, or under what 
 circumstances, this takes place, must depend 
 upon the peculiarities of each particular case, 
 reference being had to its climate, soil, situa- 
 tion, and accession of numbers. Though re- 
 moval to New South Wales might be a very 
 proper punishment for half a century to come 
 to some classes of convicts, in the minds of 
 most of those who are sent thither it has 
 already ceased to create any apprehension. 
 And yet upon what principle is it still con- 
 tinued ? It is stated by Mr. Bennett, in his
 
 O.V THE CRIMIVAL LAW. 241 
 
 Letter to Lord Bathurst, that the number of 
 convicts which left England for that colony 
 during the year ending 7th March, 1820, 
 amounted to JOIG; and if all the alterations 
 of the penal laws proposed in 1S21 by Sir 
 James Macintosh had passed into laws, there 
 can be hardly any question they would soon 
 have been three or four times as numerous. 
 And to what description of persons do these 
 criminals belong that are sent? It has been 
 observed, that the only convicts likely to be- 
 come orderly industrious members of society, 
 in a country so circumstanced as New South 
 Wales, are those who have been bred to country 
 labour and the handicrafts connected with it. 
 But these are not the classes to which any con- 
 siderable proportion of transported convicts 
 belong. Those w^ho form the bulk of the car- 
 goes of convict ships are the refuse of trading 
 and manufacturing towns, and just as ill-as- 
 sorted a commodity for the infant agricultural 
 colony of New South Wales, as can well be 
 thought of. No settler will, on their arrival, 
 voluntarily receive them into his service, and 
 nothing more is accomplished by their banish- 
 ment than this — they are got rid of for a time 
 by removal to the most distant quarter of the 
 world at an extremely burdensome expense, and
 
 242 ON THE CRIMINAL LAW. 
 
 continue as indigent, wretched, costly, and cor- 
 rupt at Port Jackson and on the Coal river, as 
 they could have been in any corner of the country 
 from which they have been transported. Such 
 is the result of a mode of punishment which has 
 been extolled as honourable to the humanity 
 and intelligence of the present times, in spite 
 of the unequivocal and accumulating proofs 
 regularly received of its having proved abortive. 
 When it is considered what sort of persons are 
 alone fit to be sent out as convicts ; the limited 
 numbers that can be sent to any settlement so 
 as to continue it an object of terror and means 
 of reform; and the difficulty of finding and ex- 
 pense of establishing fresh stations, when the 
 old ones require to be abandoned, it is clear that 
 no effectual reliance can be placed upon trans- 
 portation as a general and permanent mode of 
 preventing crimes either by this or any other 
 country. 
 
 Imprisonment however, rather than transpor- 
 tation, seems now to be regarded as the grand 
 specific for the cure and prevention of every 
 species of crime. Like many other schemes 
 upon new or improved principles, to which the 
 attention of the public is solicited, it is ex- 
 ceedingly expensive. Many ingenious persons
 
 ox THE CRIMINAL LAW. 243 
 
 descant upon solitary confinement, classifica- 
 tion of prisoners, the benefits of neatness, 
 cleanliness, roomy cells, yards, and airing 
 grounds, as if any plan for the improvement of 
 prisons or penitentiaries could be executed 
 without money, or as if that money could be 
 derived from any other source than the pockets 
 of the people. It is however very certain, 
 that prisoners must be secured and crimes 
 punished, and yet that the community cannot 
 afford to devote more than a certain propor- 
 tion of its time or substance to that object. 
 In England, whenever an appeal is made to the 
 compassion of the public, it scarcely knows 
 how to set bounds to its generosity. For some 
 time past all sorts of persons who, from mis- 
 fortune or misconduct, have become in any 
 wise destitute or distressed ; from the thought- 
 less or profligate debtor who procures his dis- 
 charge under Lord Redesdale's act, down to 
 the London charity children, whom it was lately 
 proposed to convey in caravans to the wilds of 
 Dartmoor, are looked upon with an eye of 
 greater favour than in any other country. Dra- 
 matic effect is so well understood, that whoever 
 proposes a plan which can be recommended by 
 an affecting speech or statement, is sure to 
 
 r2
 
 244 ON THE CRr.MIN'AL LAW. 
 
 draw over at once to his side no inconsiderable 
 portion of the community. Notable women, 
 very young men, clerks in counting-houses and 
 public offices, strenuous political reformers, a 
 great part of the daily press, and the enthu- 
 siastic admirers of liberality and humanity are 
 all zealous in its favour, besides a larger or 
 smaller part of the community who on better 
 grounds think proper to give it their support. 
 As these sorts of adherents are usually the 
 most indefatigable and vehement in conversa- 
 tion and discussion, the expression of their 
 opinion is frequently mistaken for the voice of 
 the coimtry at large, and upon occasions too 
 when they are very far froni forming the majo- 
 rity either in numbers or consideration. 
 
 It will not be supposed that the language 
 now used implies an indiscriminate aversion to 
 measures which aim at alleviating the sufferings 
 or ameliorating the condition of our fellow 
 creatures. To all such as upon deliberate in- 
 vestigation appear to answer this end, of what- 
 ever nature they may be, and from whom- 
 soever they may proceed, I cordially wish suc- 
 cess. The reasoning employed is only intended 
 to show that the sensibility which some of 
 them have at first sight excited, has evidently
 
 ox THE CUI.MIXAL LAW. 24^ 
 
 overstepped the limits of propriety ; and that 
 the accommodation which has in various in- 
 stances been made for prisoners and convicts, 
 much exceeds that which it is expedient to 
 grant. The expenditure on this account has in 
 various counties been enormous, and the rates 
 imposed to defray it have been so oppressive, 
 as ahnost to reduce industrious persons of 
 small property to the condition of those very 
 individuals for whose l)enefit such rates were 
 levied. What additional charges an extra- 
 ordinary mitigation of our penal laws and total 
 abolition of capital punishment would entail 
 upon the country, it would be difficult to spe- 
 cify. They would certainly prove extremely 
 burthensome, and those who are intrusted 
 with the administration of public affairs ought 
 to estimate them carefully before thoy are any 
 further sanctioned. The first cost of the build- 
 ings alone would make no small figure even in 
 a country whose legislative assemblies are so 
 much accustomed to count by millions. Of 
 this any one may be satisfied on taking a survey 
 of the Penitentiary at Milbank. From the 
 moment it heaves in sight, it might be mistaken, 
 from its vast extent and marshy situation, for 
 one of the garrison towns which have so long
 
 246 ON THE CRIMINAL LAW. 
 
 given dignity and interest to the flats of Hol- 
 land ; and on a nearer approach, the growing 
 grandeur of its embankments, walls, towers 
 and circumvallations, prove that the distant 
 prospect did not belie the reality. The sum 
 already expended on the building amounts, it 
 is believed, to no less than £783,000, and it is 
 not yet finished. As it will, when completed, 
 contain no more than 600 men and 400 women, 
 it is worth considering how many of such 
 establishments would be required to receive all 
 the convicts of the kingdom, in case confine- 
 ment in penitentiaries should hereafter be made 
 the principal mode of punishment. In 1818 
 there were 2052 persons condemned to trans- 
 portation for the different periods of 7, 10, 14 
 years, and for life; and 1254 convicted capi- 
 tally, of whom only 97 were executed. The 
 remaining 1157, must consequently have had 
 the capital punishment commuted for transpor- 
 tation, so that the whole number of persons 
 transported or condemned to transportation in 
 a single year must have been upwards of 3000. 
 Supposing 1500 of these, under a mitigated 
 code of Criminal Law, to be transported, and 
 the other 1500 to be confined in penitentiaries 
 for an average of three years each, their num- 
 ber at the end of that time would have swelled
 
 ON Vnt: (KI.MINAl, LAW. 247 
 
 to 4500, and continue to stand at that amount 
 unless the annual number of convicts dimi- 
 nished. This would be the case, even sup- 
 posing prosecutions not to be more frequent 
 than at present; but it must have been ob- 
 served, that an immense increase in prosecu- 
 tions is one of the effects most confidently anti- 
 cipated from the abolition of capital ])unish- 
 ments by those who object to them. It has 
 never been stated to what degree prosecutions 
 would thus increase; but, from the reasoning 
 and expressions exployed, it may be gathered 
 that they would at least be tripled or quadru- 
 pled. If they were only doubled, the constant 
 total number of convicts to be disposed of 
 would amount to 9000 ; which would render 
 nine Cities of Refuge, each as large as that at 
 Milbank, necessary for their reception. These 
 must be built and repaired, as well as the costly 
 establishment attached to each supported. An 
 attempt has been made to show, from the man- 
 ner in which the gaols have been erected at 
 Ilchester and Shepton Mallet, with how much 
 thriftiness convicts may be made to build their 
 own cells, and that the joint produce of their 
 labour in a house of confinement will nearly 
 defray the whole charge of the establishment. 
 Taking the most favourable instance which it is
 
 248 ON THE CRIMINAL LAW. 
 
 possible to produce, and supposing the price 
 put upon the articles manufactured by the pri- 
 soners to be just, which is however always 
 higher than it would fetch in open market, 
 there is little doubt that on a fair settlement of 
 accounts between the governors and any of 
 these establishments, the establishment will in- 
 variably be found a debtor to a very large 
 amount. This has invariably proved to be the 
 case m every country in which they have been 
 tried. In the Report made in 1817 by Commis- 
 sioners appointed by the State of Massachu- 
 setts, to inquire into the mode of governing the 
 Penitentiary of Pennsylvania, and into the im- 
 provements which might be practicable in the 
 management of their own state prison, the 
 Commissioners remark, ' the expense is found to 
 ' be every where one of the most popular objec- 
 
 * tions to the penitentiary system. This ob- 
 
 * jection is perhaps founded in the disappoint- 
 ' ment of a vague expectation, that such an 
 
 * institution would support itself by the profit 
 
 * on the labour of the convicts, rather than 
 
 * upon any general view of the loss or actual 
 
 * charge to the commonwealth, compared with 
 
 * that which would attend or grow out of the 
 ' plan of summary corporal punishments.' The 
 same Commissioners extract from the Report
 
 ON THE CUI.MIXAL J. AW. 249 
 
 of another set of Commissioners the fullovvin<r 
 passage respecting the state of the Penitentiary 
 at New York. ' It has for some time past not 
 ' only failed of effecting the great object chiefly 
 ' in view, but has subjected the treasury to a 
 
 * series of disbursements too oppressive to be 
 
 * continued, if they can in any way be pre- 
 ' vented.' It is not possible that the expense 
 of such prisons or penitentiaries should be 
 otherwise than heavy. In the Report made 
 in 1821, to the House of Commons, by the 
 Commissioners appointed to inquire into the 
 State of the Gaol at Ilchester, they observe, 
 that different sorts of manufacture had been 
 carried so far as to injure the discipline of the 
 prison. The very nature of such an institution 
 therefore must make it burdensome. If a gaol 
 or penitentiary is a flourishing manufactory, it 
 must be a bad place of punishment ; if it is a 
 good place of punishment it must, on the other 
 hand, be an unprofitable manufactory ; and if it 
 is an unprofitable manufactory it must be ex- 
 pensive. The charge of extraordinary expen- 
 siveness which may now be made to many 
 gaols, houses of correction and the Peniten- 
 tiary, applies equally to transportation. The 
 freight of each convict from England to New- 
 South Wales amounts to about £20, and each
 
 250 ON THE CRIMINAL LAM^ 
 
 on an average costs about £20 a year after- 
 wards. The increased expenditure of the co- 
 lony has kept pace with the increase of trans- 
 ported convicts, and is alleged, in 1820, to have 
 come to little less than £300,000. It is difficult 
 to determine, therefore, whether confinement 
 or transportation be the more costly ; and the 
 total charge incurred by the one which happens 
 to be most in vogue must increase precisely as 
 that of the other diminishes. Thus much has 
 been said on the heavy tax occasioned by the 
 grievous numbers of felons which are accumu- 
 lating abroad and at home, because, in a finan- 
 cial point of view, the subject will eventually 
 be found entitled to more consideration than it 
 has hitherto received. It can make no dif- 
 ference in the reasoning whether the tax paid 
 is at once imposed upon the whole country, or 
 a part of it only is imposed upon the country, 
 and the remainder levied from each county 
 separately. The tax presses ultimately with 
 the same weight upon the community, and be- 
 comes even more objectionable from the imper- 
 ceptible manner in which it is raised and in- 
 creased. It may be said, that though all which 
 has now been urged against the costliness of 
 the punishments of transportation and impri- 
 sonment were true, it would not amount to a
 
 0\ THE CRIMINAL LAW. 251 
 
 conclusive argument against them. It certainly 
 would not, nor has it been advanced with 
 any such intention. All that is contended for 
 is, that before capital punishment is abolished, 
 or any great stride made towards it, the un- 
 limited drain upon the public which the punish- 
 ments to be substituted for it would certainly 
 occasion, is a strong reason for exacting the 
 most convincing proof, that they would effec- 
 tually answer those purposes of reformation and 
 terror which they are said to accomplish. This 
 has not yet been produced, nor is it possible to 
 do it. 
 
 One would be loth to hurt the feelings or 
 dash the hopes of those who are engaged in the 
 exalted task of moral reformation ; but neither 
 the evidence given before the Committee on 
 the Criminal Law and Committee on Gaols, 
 nor any facts which have hitherto been dis- 
 covered, hold out any expectation that a gene- 
 ral or thorough conviction of criminals can by 
 any process be effected. There is a degree of 
 credulity shown on this subject by most of the 
 advocates for extreme mitigation of punishment 
 which is perfectly amazing. The good sense 
 and caution which they could not fail to dis- 
 play on other occasions seem here totally to
 
 252 ON THE CRIMINAL LAW. 
 
 forsake them, and they receive with avidity 
 any reports of repentance and amendment w^ith 
 which they are presented, instead of examining 
 them with the discrimination of sound prac- 
 tical statesmen, anxious to found projected im- 
 provements only on the basis of facts which 
 will stand the test of the closest inquiry. Yet 
 in whatever dress these Reports appear, or in 
 whatever manner the extracts from them are 
 selected, some circumstances always peep out 
 which place in the strongest light the difficulty 
 of effecting permanent reformation. No oppor- 
 tunity seems so favourable for the exemplifi- 
 cation of it, one should think, as in those cases 
 where no legal steps have been taken against 
 the offending parties : where their character to 
 all appearance remains unsullied ; and where 
 all the notice which has been taken of their 
 misbehaviour consists in the good advice they 
 receive at the hands of those whom they have 
 injured. Gratitude for forgiveness, escape from 
 shame, and relief from suffering, ought surely 
 to conspire to effect a salutary change in the 
 mind, if any thing short of forcible remedies 
 could have that effect. Yet even under these 
 circumstances, the facts contained in the Re- 
 ports of the Committees on Criminal Laws and 
 on Gaols offer little ground to expect it. Five
 
 ON rilK IKIMIV.M. LAW. 253 
 
 cases of this sort are mentioned at pages 92, 97, 
 106, IIG, and 118, of the Report of the Com- 
 mittee on Criminal Laws, and yet three out of 
 the five oftenders, after all the kindness shown 
 to them, are admitted to have turned out badly. 
 This is viewing these cases most favourably ; 
 for it happened with them, as it does with many 
 others of similar nature, that the continued 
 criminality of those who turned out ill is placed 
 beyond all doubt, while the reformation of those 
 who turned out well rests on information and 
 belief only. 
 
 If reformation was so precarious among those 
 in whom it might with so much reason be ex- 
 pected, the case of hardened or convicted 
 criminals, whether young or old, is still more 
 hopeless. The following evidence is given by 
 Mr. Henry Hoare, jun. who has taken a prin- 
 cipal share in the management of the permanent 
 Refuge in London for boys, at page 149 of the 
 Report of the Committee on Gaols : 
 
 * The Committee would be glad to have a 
 
 * general account of the proportion you think 
 
 * have turned out well, and those who have 
 ' not turned out well, or who have been dis- 
 
 * missed for misconduct?' ' From May, 1815, 
 
 * which was the commencement of the esta- 
 ' bhshment on the present premises, to Christ-
 
 254 ox THE CRIMINAL LAW. 
 
 * mas, 1816, 187 under 20 years of age have 
 ' been admitted. Of these, 56 now remain in 
 
 * the establishment, and are going on exceed- 
 ' ing]y well ; 54 have been reformed and dis- 
 
 * charged, and we have the most satisfactory 
 
 * account of their conduct ; the number of those 
 ' who have returned to their evil practices is 
 
 * very high, being 46 ; but the majority of those 
 
 * cases were admitted before we had the sys- 
 
 * tem in proper order.' 
 
 Of the 31 unaccounted for, he says, * the 
 
 * society feared that 18 had returned to crime, 
 ' and 1 3 they knew nothing at all about. They 
 
 * wish to keep the boys two years in the esta- 
 
 * blishment before they are considered as tho- 
 
 * roughly reformed.' Taking this statement of 
 Mr. Hoare in the most favourable view, it ap- 
 pears that out of 131 boys, which was the total 
 number discharged, 46 are known to have 
 returned to crime, and there is reason to believe 
 that 31 more have been little if at all reformed. 
 
 Mr. Shelton, at page 27 of the Report of the 
 Committee on Criminal Laws, says, ' persons 
 
 * who put off bad money uniformly come to the 
 ' bar of the Old Bailey, till they are disposed 
 
 * of one way or other : if they be acquitted in 
 
 * one session they come the next, and so till 
 ' they are convicted : it is almost to a certainty
 
 ON' 11 IE CKIMINAL LAW. 2i)if 
 
 ' that they will come again.' Mr. J. A. New- 
 man, on being asked if he could guess what 
 proportion professed rogues and young offen- 
 ders bear to the whole number of convicts, 
 answers, ' No, not correctly, but I should think 
 
 * about one in four, who cannot get their living 
 
 * in any other way. Of capital convictions? — 
 
 * Of persons committed generally.' Mr. lluell 
 supposes, that from one third to one half may 
 be persons of that description. Mr. Shelton is 
 also asked, ' A very considerable number of 
 ' those persons who are tried at the Old Bailey, 
 ' one may say, are malefactors by profession, 
 ' that is, persons engaged habitually in crimes ? 
 
 * Yes, they are. — A great number of persons 
 ' are more than once or twice brought to the 
 
 * bar ? Oh dear, some are brought many times.' 
 Mr. Ruell on being afterwards asked — ' Have 
 
 * you any hope of reclaiming those brought up 
 ' in ignorance sooner than others V he makes the 
 following reply : — 
 
 * In some cases good has been and may still 
 
 * be done ; but my experience compels me to 
 
 * say, that I am not very sanguine as to reclaim- 
 
 * ing those young offenders, who have, from 
 
 * their very infancy, been inured to crime ; we 
 
 * have generally more trouble and less success 
 ' with such than more old offenders. The rea-
 
 256 ox THE CRIMINAL LAW. 
 
 * son I conceive to be, because they have been 
 ' brought up in entire ignorance of all moral 
 
 * and religious principles ; and their associating 
 ' together only tends to harden them in crime. 
 
 * There is a depth of depravity and moral in- 
 
 * sensibility among them truly appalling, and 
 ' which would be hardly credited without 
 ' ocular demonstration. While no efforts should 
 ' be spared to recal such instances of moral 
 
 * degradation, I feel convinced in my own 
 
 * mind, from what I have seen and heard, that 
 ' measures to remove their ignoranee, ami 'prevent 
 ' the seduction of others, will confer a much 
 
 * greater benefit upon the public than the best 
 
 * means of recovering the lost.' 
 
 Mr. John Teague, Keeper of Giltspur-street 
 Compter, at page 271 of the Report of the 
 Committee on Gaols, is asked — 
 
 * Have you any means of observing whether 
 
 * any beneficial result has followed from keep- 
 
 * ing the boys so employed T — ' I have not had 
 ' an opportunity of observing, but I have no 
 
 * doubt they will be better for being employed; 
 
 * there is no doubt about it.' — * Have you any 
 ' means of knowing how any of them have be- 
 ' haved after leaving the prison ?' ' I have" 
 ' heard of many of them being in custody 
 ' again.' ' Committed to your gaol ?" * No, to
 
 ON TIIK CUIMINAI. I \\V. 2^)1 
 
 'other gaols; but as I attend tlie sessions, I 
 ' IrequeiUly see them, and, although in anotlier 
 
 * name, I know them.' 
 
 With respect to the inethcacy of the disci- 
 pline to which criminals are subjected on bcjaid 
 the hulks, Mr. Grey Bennett is surely an un- 
 exceptionable witness. In his Letter to Lord 
 Sidmouth on the Transportation Laws, pub- 
 lished in 1819, he says when speaking of the 
 management of the prisoners on board the 
 Laurel convict ship, ' that one of the convicts 
 
 * told him that little was effected in the nature 
 
 * of real reformation ; the prisoners found it to 
 
 * be their interest to appear satisfied, and to 
 
 * make no complaints, but those who imagined 
 
 * that any moral amendment would be effected, 
 
 * deceived themselves to the greatest degree.' 
 Mr. Bennett also says at page 48 of the same 
 pamphlet, without being conscious that the re- 
 marks he has made upon the chaplains of the 
 hulks might perhaps with nearly as much pro- 
 priety be applied to himself: — ' I read with 
 ' surprise the annual report presented to parlia- 
 ' ment, and the account given by the respective 
 
 * chaplains of each ship. These statements, 
 ' though the authors are very respectable and 
 
 * praiseworthy persons, are not to be admitted 
 ' without great caution. These gentlemen are 
 
 s
 
 258 ON THE CRIMINAL LAW. 
 
 * the heroes of their own works, and without 
 ' meaning offence to those whose exertions I 
 ' highly value, they are too apt to be their own 
 
 * panegyrists. Notwithstanding these authori- 
 
 * ties, I am incredulous as to the miracles of 
 
 * reformation, which are stated to be annually 
 ' worked on board the different hulks on all 
 
 * varieties of persons and under all varieties of 
 ' management.' 
 
 There is no disposition to deny, that prisons 
 and houses of correction may produce more 
 reformation than the hulks. Those who take 
 the trouble to turn to pages 304, 322, 329, 332, 
 353, 371, 380, 384, and 387, of the Report of 
 the Committee on Gaols, will find instances of 
 the amendment which may be there accom- 
 plished. They are the only ones which occur 
 in any part of the volumes lately printed under 
 the authority of parliament, and, like many 
 other facts which have been quoted for the same 
 purpose, are not of so precise and satisfactory 
 a nature as to permit entire reliance to be placed 
 upon them. The testimony of Mr. Cunningham, 
 one of the officers of Gloucester gaol, may be 
 quoted on the opposite side, which is found at 
 page 390 of the same volume, and unfortunately 
 more than outweighs any evidence that has yet 
 been put into the scale against it. Mr. Cun-
 
 ON' TFIE CIIIMIVAI. l.WV. O59 
 
 ningham is asked—' Have you been in the liabit 
 
 * of late years of granting as many certificates 
 ' of good conduct in the prison as you used to 
 
 * do ?' * We have not.' — * On what account V 
 ' We could not ascertain the reformation we 
 
 * had worked upon them, in consequence of the 
 ' crowded state of the prison, and their working 
 
 * in society.' 
 
 These short answers communicate one of the 
 most authentic and decisive results which has 
 yet been laid before the public on the effect of 
 imprisonment as a punishment. It is generally 
 understood, that as Gloucester gaol was among 
 the first, it has continued amono- the best resru- 
 lated places of confinement in the kingdom, and 
 in which consequently we might expect to see 
 one of the fairest proofs of the eifect of prison 
 discipline. Yet after a trial of 17 or 18 years, 
 with all the help that regulation and classifica- 
 tion aflford, it is found that it is relapsing into 
 its former state, and without any certainty 
 of the prisoners now committed to it, being 
 materially better than they were before, it is 
 certain that they have become a great deal more 
 numerous. The same thing is believed to have 
 happened in every prison in England from 
 which returns have been received, and where 
 the same system is pursued. The number of 
 
 s 2
 
 '2G0 0\ THE C'lIlMIXAf. LWV. 
 
 commitments has invariably increased, especi- 
 ally within the last few years, in the course of 
 which time the new system of prison discipline 
 has been in most active operation. Some cir- 
 cumstances to be afterwards mentioned respect- 
 ing the Maison de Force at Ghent, remarkably 
 coincide w^ith what has taken place in the diffe- 
 rent gaols in England. 
 
 It has been alleged, however, that peniten- 
 tiaries possess virtues both to deter and re- 
 claim, which no other places of punishment 
 have ever 3^et possessed. It may be so. 
 That the treatment which prisoners and con- 
 victs now experience in prisons, bridewells, 
 houses of correction, and penitentiaries, is 
 decidedly superior to what it was under the 
 old system, and may be made an excellent 
 punishment for minor criminal offences, is 
 beyond all question, and it is to be hoped is 
 susceptible of still further degrees of improve- 
 ment. More may be expected from the tread- 
 mill, than from any other species of discipline 
 hitherto used, and other kinds of labour may 
 be discovered still more constant, dull, and 
 disagreeable. But do not let any judgment be 
 pronounced upon their merits until they have 
 been fairly tried. No stress ought to be laid 
 either upon the observations of the gaoler, the
 
 ON THE CRIMINAL LAW. 201 
 
 expressions of tlic criminals, or ai)parcnt ab- 
 horrence of them prevalent tiiruiigliout the 
 country. The permanent diminution of con- 
 victs alone can be received as decisive evidence 
 on the question. While it is willingly admitted 
 that penitentiaries may be a proper punishment 
 for minor offences, there is no disposition to 
 deny that they may have effectually reformed 
 many who have been guilty of delinquencies ol' 
 a deeper dye. It is only said that if the peni- 
 tentiary is expected to purify most of those 
 whom it receives within its walls, or eventually 
 to supersede the necessity of capital punish- 
 ment altogether, no good reason has hitherto 
 appeared to justify any such expectation. As 
 the best proof of their general inefficacy, pri- 
 soners have always increased in them as well as 
 in prisons, under the best management to which 
 they have been subjected. In the statistical 
 view of the operation of the penal code of 
 Pennsylvania, published in 1817 by the Phila- 
 delphia society for alleviating the miseries of 
 public prisons, it appears that ' the number of 
 ' untried prisoners returned on the calendars 
 ' at the different sessions of the mayor's court 
 ' of the city, and quarter session of the county 
 ' of Philadelphia, was :— In the year 1813, 610 ; 
 '1814, 538; 1815, 829; 18l(;, 1058.' This
 
 202 ON THE CRIMINAL LAAV. 
 
 increase so far exceeds what can be accounted 
 for by the growth of population in so short a 
 space, that imprisonment there cannot have 
 generally been accompanied with the desired 
 effects. Nor is there much prospect that it 
 will in any similar institution. The very un- 
 certainty, which must always exist, of a supply 
 of gentlemen of sufficient rank and capacity, 
 willing to devote their time to its superintend- 
 ence, presents, at the very outset, a serious 
 difficulty. While an institution possesses the 
 charm of novelty, and the zeal of its founders 
 and promoters continues undiminished, it is 
 watched and cherished with a degree of solici- 
 tude under which it cannot fail to prosper. 
 But sooner or later the assiduity of their atten- 
 tion relaxes, and there seems ground to believe 
 that penitentiaries or prisons must sustain 
 greater injury from such than in many other 
 establishments of a somewhat similar nature. 
 In charities, refuges, or houses of industry, 
 neglect or mismanagement of their visitors or 
 directors, seldom go farther than to circum- 
 scribe the sphere of their utility ; whereas, if 
 the same thing occurred in a penitentiary, set 
 apart for the punishment of great crimes, it 
 would fail to effect its purpose altogether. It 
 is only on the supposition of penitentiaries
 
 ON THE CRIMINAL LAW. 2G3 
 
 being kept in a state of admirable arrangement 
 that they have ever been alleged to be an ade- 
 quate substitute for capital punishment at all. 
 The extremes of severity or lenity are equally 
 hostile to reformation ; and when it is considered 
 how much skill is re(iuisite,not only to pitch upon 
 this medium at first, but to adhere to it after- 
 wards, there is no great chance that the first or 
 any succeeding list of trustees or managers will 
 be able to attain it. Without the assistance of 
 such a class of persons the prospect seems still 
 more hopeless. The best general rules which 
 can be framed for the guidance of a hired go- 
 vernor and his subordinate officers will not en- 
 sure the invariable performance of their duty, 
 or that nice discrimination in the treatment of 
 prisoners on which their reformation so mainly 
 depends. As it is to outward appearances that 
 the attention of strangers is principally direct- 
 ed, wdiatever has any connection with them will 
 be among the last things to suffer, especially if 
 the expense be borne by the pubhc. The pen- 
 tagons may be kept quite clean, the routine of 
 the house may go on without any interruption, 
 and the male and female prisoners may bow 
 and curtsey in their cells to passing visitors as 
 becomingly as ever, although the regenerating 
 spirit of the place has long since fled.
 
 264 ON THE CRIMINAL LAW. 
 
 Let US now turn from the difficulty of the 
 management requisite to work reformation, to 
 the subjects upon whom, in this country, it has 
 to be wrought. Many of them have grown 
 grey in iniquity, and others have been from 10 
 to 20 times in prison by the time they are 17 
 years of age. The general, or frequent real re- 
 formation of such malefactors, and especially 
 of those who infest large tov^ns, as forgers, 
 utterers of forged instruments, housebreakers, 
 thieves, and pickpockets, of whom so large a 
 portion of the whole catalogue of convicts con- 
 sists, vv^ould be one of the most extraordinary 
 moral phenomena the world has ever seen. 
 They are not fit for country labour in New 
 South Wales, nor have they been enured to 
 the sedentary occupations which can be fol- 
 lowed in a penitentiary. Instead of being re- 
 garded as rational creatures, misled by strong 
 temptation, or hurried by passion into acts of 
 criminality, and of whose amendment any just 
 hopes can be entertained, they come at last, 
 from the complete destruction of every moral 
 principle and feehng, to be distinguished from 
 the other sorts of vermin which render life un- 
 happy, by little else than their superior powers 
 of doing mischief. That they should quickly 
 accommodate themselves to the life of a peni-
 
 ox Tin: CKIMIVAL LAW. 265 
 
 tentiary, and often assume an air of coutrili(jn 
 and repentance, is extremely natural. It is 
 their interest to do so, because it may probably 
 shorten the period of their imprisonment, and, 
 at the worst, makes it more tolerable while it 
 lasts. Mr. Buxton, at page 87 of his Prison 
 Discipline, says, that while he was in the prison 
 he was then inspecting, a woman earnestly so- 
 licited a wheel, saying, * employment would 
 ease her mind, and help her to while away the 
 time.' Temporary amendment is not sufficient 
 proof of a lasting change either in principles 
 or conduct. It is easy to tell when the cure of 
 bodily diseases is perfected, but in those of a 
 moral kind this is almost impracticable. Dis- 
 simulation is so prominent a characteristic of 
 those who have once become abandoned, that 
 until it is ascertained how they avoid or resist 
 temptation when left at their own disposal, no 
 conclusion can be safely drawn respecting them. 
 Those who have witnessed the labours of 
 Mrs. Fry, and her assistants, in Newgate, and 
 the gratitude and respect which the disinterest- 
 edness and kindness of their conduct draws 
 from the unpromising objects on whom they are 
 bestowed, must be impenetrable to the best 
 feelings of our nature if they would not gladly 
 believe in all the success which is said to attend
 
 266 ON THE CRIMINAL LAW. 
 
 them. But it will not be found to justify the 
 glowing descriptions of those eulogists and ad- 
 mirers by whom the superintendants and sup- 
 porters of works of charity are peculiarly apt to 
 be surrounded. It is to be hoped it will be re- 
 garded as a token of respect for their character 
 and a desire to co-operate in their objects, rather 
 than a proof of concealed hostility to remark, 
 that if the ladies' committee is to be of great or 
 permanent benefit in Newgate, that prison must 
 not continue as it now is, a place of show for 
 multitudes of gentlemen and ladies to assemble 
 twice a week to indulge their curiosity or sen- 
 sibility, by witnessing the influence which Mrs. 
 Fry's reading and exhortations produce upon 
 her audience. The tears which prisoners shed 
 are soon dried up, and the resolutions of amend- 
 ment they may form, are often of very short 
 continuance. Let any one linger a little behind 
 on one of these occasions, and watch the con- 
 duct of those who are confined in any of the 
 rooms through which Mrs. Fry and the visitors 
 have passed, and the levity of conduct displayed 
 by the greater part of them when removed from 
 observation, will be found to display so striking 
 a contrast to their demureness while under in- 
 spection, that it is impossible they should have 
 undergone that thorough change of disposition
 
 0\ THK CRIMINAL LAW. 267 
 
 which almost the whole of the strangers present 
 go home with the belief of having been effected. 
 If instead of allowing free admittance to whole 
 committees, only one or two persons had that 
 permission, there would be more good done, 
 with less ostentation ; for uniformity, quietness, 
 and that vigilance which accompanies a deter- 
 mination not to be imposed upon, are essentially 
 necessary to the success of every measure which 
 is attempted for the benefit of criminals. As 
 long, however, as the ladies committee do no 
 harm, and merely further the ends which it is 
 the object of criminal procedure to produce, 
 whatever reformation they accomplish is so 
 much good which would not otherwise have 
 been gained ; and if only one prisoner in a hun- 
 dred is through their means rescued from vice, 
 their labours of love will not go unrewarded. 
 But if instead of pursuing this unambitious 
 course, to which it would best suit their sex 
 and circumstances to confine themselves, they 
 should lay hold of any opportunities which 
 offer, of discoursing on the general principles 
 of penal law, and of informing the visitors of 
 Newgate of the extraordinary mitigation of 
 punishment which their experience proves it to 
 be possible to introduce into our code, the case 
 becomes completely altered . Instead of grate-
 
 268 ON THE CRIMINAL LAW. 
 
 fully acknowledging their exertions, it becomes 
 necessary to examine their pretensions ; and 
 when that has been fully and fairly done, it will 
 be found that neither the length of time during 
 which prisoners are under their care, nor the 
 conduct either of that portion of them who have 
 been set at liberty or transferred to other places 
 of confinement, as yet entitle them to draw any 
 positive conclusions on the subject. 
 
 There is no place either in this or any other 
 country, where the life and history of criminals 
 after supposed reformation can be sufficiently 
 substantiated. Two or three years, which is the 
 utmost length of time to which examination has 
 been carried into the conduct of convicts after 
 their discharge from prison, is too limited a pe- 
 riod of probation. Nothing short of the fullest 
 evidence of the good behaviour of a long list of 
 persons who have been reformed in prisons or 
 penitentiaries can demonstrate their universal 
 efficacy as a punishment. To afford this, it is 
 not only requisite that names and dates should 
 be given, but that reformed convicts should also 
 be enjoined, upon their discharge, to write once 
 or twice a year to the directors or trustees of 
 the place where they have been confined, spe- 
 cifying their occupation and place of abode, or 
 to afford for a considerable number of years.
 
 ox Tin: (in MIX \i, i,\u'. 20Q 
 
 some other clue by which iii([uiry inigliL be 
 made into their character and conduct. No 
 steps have any where been taken to obtain lliis 
 sort of satisfaction ; and even though they had 
 been so in the Penitentiary at Milbank, as it was 
 opened only in 18iG, it cannot ati'ord it, until it 
 has existed four or five times as long as it has 
 yet done. In justice to the governor of this 
 prison, and those who are acting under him, it is 
 proper to mention, that they seem to be as zea- 
 lous and competent as any that could have been 
 selected to fill their respective situations. Still 
 the place does not answer the ideas formed of 
 such an institution ; and besides the general ob- 
 jections which have been made to all houses of 
 confinement whatever, there are one or two 
 which apply to the Penitentiary at Milbank 
 with more than ordinary force. The confine- 
 ment can, in no instance, be properly called 
 solitary, unless when it is imposed for gross 
 misbehaviour after admission ; nor does it so 
 nearly approach it as it ought to do. A large 
 proportionof the prisoners are found labouring, 
 two and three together, and all of them must, 
 to a certain degree, be relieved or amused by 
 the visitors who pass and repass their cells. 
 This evil has not yet proceeded so far in the 
 penitentiary as in Newgate, where as much harm
 
 270 ON TIIF. CRIMINAL LAAV. 
 
 must be done to the prisoners on the two public 
 days as can be counteracted during the rest of 
 the week. The last and greatest fault to be 
 found with the Penitentiary is that it is too 
 comfortable. The time, indeed, has gone by 
 when it was the ambition of the governors to 
 have a bed-chamber and parlour for each of its 
 inmates ; but even now, it by no means presents 
 that air of austerity which a house of penance 
 ouofht to wear. Provided health and cleanliness 
 are consulted, prisoners ought studiously to be 
 subjected to every deprivation in respect to 
 lodging, food, and clothing, which may increase 
 their unwillingness to submit again to such 
 treatment. But so far is this from being yet 
 the case in gaols, that it would probably be 
 found upon inquiry, that one third of the 
 labouring population are not so well provided 
 with the necessaries of life as the criminals 
 who are sent there for punishment. If there 
 were fifty penitentiaries like that at Milbank, 
 planted up and down the land, there can be 
 no doubt that when their merits came to be 
 known, there would be a sufficient number of 
 candidates to fill them. Should this be the 
 case, one of the best and simplest safeguards to 
 virtuous conduct is removed ; for there is no 
 rule of more universal application than this, that
 
 ON THE CRIMINAL LAW. 271 
 
 in all sorts of prisons their inmates should fare 
 worse than almost any individuals who earn 
 their bread by their own unassisted industry. 
 
 The observations hitherto made on the most 
 approved method of treating* convicts in prisons 
 and penitentiaries have been confined to rcfur- 
 mat'wn only. A still more important and in- 
 deed the only proper object of punishment is 
 prevention, which the confinement now recom- 
 mended has very little tendency to produce. 
 The mild treatment which criminals experience, 
 the shortness of the period now thought suffi- 
 cient to effect a cure, the absence of unsuitable 
 company, which follows from the length to 
 which classification is carried, the very relief 
 which moderate and constant out-door or in- 
 door labour afibrds to the mind, the exertions 
 made to provide situations for prisoners after 
 their discharge, and the expeditious and effec- 
 tual process by which lost character may be 
 retrieved — all conspire to diminish the appre- 
 hension with which a lapse from innocence was 
 formerly regarded. To no other assignable 
 causes can the crowded state of Gloucester 
 gaol, mentioned by Mr, Cunningham, be owing; 
 and to them also may be ascribed the extraor- 
 dinary number of convicts confined in the Ala/son 
 lie Force at Ghent. Mr. Buxton, at page 9G of
 
 272 ON THF. CRIMINAL LAW. 
 
 his Prison Discipline, says, that its present 
 management is so excellent that only ten per 
 cent, of the felons return, and few of the others; 
 but admits that their number amounts to 1300. 
 This is an extraordinary proportion of malefac- 
 tors for a narrow territory ; and as Mr. Buxton 
 says it had been resisted by Mr. Howard in 1775 
 or 1778 when its regulations were good, and 
 again in 1785 when they were bad, it became 
 desirable to know whether he had specified the 
 number of prisoners which he found in it at one 
 or other of these periods. Accordingly, on 
 turning to page 79 of his account of German 
 prisons, he states the number of prisoners he 
 found there in 1775 or 1778 at 280 men and 
 117 women, making altogether 397 persons. 
 The facts then stand thus : — in a country where 
 the number and condition of the inhabitants is 
 remarkably stationary, where, Mr. Buxton says, 
 there are no capital punishments except for pre- 
 meditated murder, and where the management 
 is described as having generally been excellent, 
 the number of criminals has more than trebled 
 in little more than 40 years. Unless these cir- 
 cumstances can be sufficiently accounted for, it 
 would be difficult to imagine any thing less 
 favourable to the effect which mitigation of 
 punishment has in preventing crimes, than the 
 result which they exhibit.
 
 ON' TMF. CKI.MINAI. l.WV. 273 
 
 When I visited this institution in the end of 
 August, 1820, thougli I am neither entitled nor 
 disposed to question its utility, it certainly oc- 
 curred to me that there are many persons in 
 England who entertain notions of the variety of 
 employments there exercised by the prisoners, 
 of the neatness of the place, and efficacy of the 
 discipline, which an inspection of the establish- 
 ment does not fully justify. Unless the account 
 of the officer who attended me was incorrect, a 
 much larger proportion of the prisoners return 
 than Mr. Buxton in his tract on Prison Disci- 
 pline has mentioned. Whether the statement 
 of my informant or that communicated to Mr. 
 Buxton is most consistent with the fact, I cannot 
 take upon me to determine. Those who visit 
 prisons are always withheld from a fear of being 
 thought tiresome or impertinent from askino- as 
 much as they would wish. Without authority 
 to examine the officers of gaols or houses of 
 correction as long and as often as it may be 
 thought necessary, no person will ever tho- 
 roughly understand their state and operation. 
 All persons connected with them, invariably 
 look upon it as necessary for the support of their 
 own character, to exhibit them in a more fa- 
 vourable point of view than the truth will strictly 
 warrant. The number of prisoners too seems 
 
 T
 
 274 ON THK CRIMINAL LAW. 
 
 Still to be increasing. When I was there, they 
 amounted to 1196, and 150 had a few weeks 
 before been sent off to Antwerp to what receive 
 the appellation o^the gallks, though they do not 
 strictly answer to the name. At Wilwoerde, 
 near Brussels, there are said to be other 800 ; 
 and in the gallics just mentioned, there are about 
 1 1 00 more, selected as greater criminals than 
 those at either of the other two prisons, and 
 confined either for a longer period, or for life, 
 and in chains. Should these details be exact, 
 there are now about 3096 convicts in the three 
 great criminal depots of Brabant, besides all 
 those who are condemned to one year's impri- 
 sonment or a shorter space by the different 
 local jurisdictions; which excessive number in 
 a country neither in extent nor population much 
 exceeding Yorkshire, seems to afford stronger 
 proof than the result of the discipline of any- 
 one particular prison could do, of the general in- 
 efficiency of the criminal laws there estabhshed. 
 If what has now been stated is correct, it 
 certainly outweighs any contrary inference 
 which can be drawn from the success which 
 attended the first establishment of the prison at 
 Philadelphia. Mr. Buxton says, that capital 
 punishment was abolished in Pennsylvania in 
 1791 ; and he compares the state of the prison
 
 ON tiif: cinMiNAi. LAW. 275 
 
 from July 1789 to June 1791 under the old 
 system, with its state from June 1791 to March 
 1795 under the new; at the end of which time 
 the comparison undoubtedly appears to be ex- 
 ceedingly in favour of the latter. To show in 
 a satisfactory manner the effect of the new regi- 
 men in the prison of Philadelphia, a longer and 
 later period should have been taken for the 
 comparison. This there is now an opportunity 
 of doing. In the Report of the Commissioners 
 of the State of Massachusetts, which was made 
 in 1817, at which time the discipline ought to 
 have been completely established, and the re- 
 sults which it is calculated to produce, may be 
 expected to be more distinctly perceived than 
 they at first were, the Commissioners make the 
 following very disheartening observation, ' How 
 
 * little the common appearances of reformation 
 ' or amendment are to be trusted will appear 
 
 * from the fact, that out oi four hundred and 
 'Jifty-onc convicts now in the Penitentiary at 
 
 * Philadelphia, one Jtundred ami slrti/-two have 
 
 * been before convicted and pardoned. In the 
 ' prison at New York, of all those who have 
 
 * within the last five years been committed for 
 ' second and third offences, about two-thirds had 
 ' been discharged from their former sentences 
 ' by pardon.' 
 
 t2
 
 276 ON THE CRIMINAL LAW. 
 
 The preceding facts are believed to be among 
 the most important relative to this point of those 
 to which the public has access ; and unless they 
 have been viewed imperfectly or erroneously, 
 they do not seem to hold out any hope that the 
 mitigation of punishment aimed at by the Com- 
 mittee on criminal laws, can at the same time 
 be made effectual both for the purpose of pre- 
 vention and reformation. To unite these two 
 objects is the grand dithculty which presents 
 itself to the advocates of secondary punish- 
 ments at the outset, and will never cease to 
 embarrass them in all the efforts they may 
 hereafter make for the extreme mitigation of 
 criminal law. All those who have had any 
 practical acquaintance with the management of 
 criminals, seem to coincide in opinion, that the 
 shorter the space of time to which the impri- 
 sonment of convicts can be limited, the greater 
 is the chance of their reformation being sincere 
 and permanent. If it is not accomplished in 
 five years, they say there is little prospect of 
 its being brought about in 10 or 14. Reforma- 
 tion and prevention appear to be certain fixed 
 points, an approach to one of which necessarily 
 implies a departure from the other. Mitigation 
 and abbreviation of punishment which is most fa- 
 vourable to reformation, is at the same time most
 
 ON TllK tin.MlNAI. LAW . 277 
 
 injurious io prevention. That tendency ol the 
 human mind, which disposes us to submit with 
 resignation to a transient evil, makes it hopeless 
 to expect that any short punishment however 
 judiciously contrived can be made sufficiently 
 dreadful for the purpose of prevention. On the 
 other hand, that punishment which seems best 
 calculated for prevention, must be allowed to 
 be unfavourable to real reformation. Imprison- 
 ment on board the gallies, in gaol, or in a mine, 
 from 5 to 20 years or for life, or even for 14 
 years with hard labour, destroys the convict as 
 effectually as capital punishment could have 
 done, by the stupidity, sullenness, or inveterate 
 viciousness which it engenders. To attain the 
 two objects at once by means of any one punish- 
 ment seems utterly impracticable. Mitigation 
 of punishment may fail to attain either, but it 
 cannot attain both ; and considering the extent, 
 wealth, population, and habits of this country, 
 to propose the extension of that mitigation so far 
 as to produce the total or almost total abolition 
 of capital punishment, would be one of the 
 most adventurous schemes in legislation which 
 has been projected from the days of Lycurgus 
 to the present time. 
 
 In considering the comparative merit of diffe- 
 rent reclaiming and preventive punishments, it
 
 278 ON" Tlli-; CHIMIN A [. (>A\\'. 
 
 ought not to be forgotten that the most effectual 
 way to diminish crimes, is to remove, as far as 
 any legislature can, the causes which are found 
 to produce them. When Tacitus said of ancient 
 Germany, ' plusque ibi boni mores valent, quam 
 ' alibi bonee leges,' he describes a state and 
 condition of society to which every man must 
 ardently wish that of his own country to ap- 
 proximate. Let officers of prisons, peniten- 
 tiaries, and houses of correction, visiting ma- 
 gistrates, parliamentary commissioners, and 
 charitable societies have done as much for the 
 benefit of convicts as they can, it will be found 
 far easier to preserve the virtue of the innocent 
 than confirm the reformation of the guilty. 
 One great cause of crimes is the distress 
 created by want of employment, which is still 
 forcing itself upon public attention. Changes of 
 times and seasons will in every state occasion- 
 ally deprive multitudes of the means of sub- 
 sistence ; but so remarkable a transition from 
 activity to stagnation has seldom happened to 
 an extensive country as that which still conti- 
 nues to bear heavy upon this. Into its actual 
 extent, or probable duration, it is foreign to 
 the present purpose to institute any inquiry. 
 It is connected with the present subject only 
 in so far as the want of employment which
 
 ON' Till-, CIUMIX \l. LAW. 271) 
 
 it occasions among a redundant population, lias 
 always been a source ol" crimes, and is n(j\v a 
 more abundant one than ever. Those who are 
 in needy or declining circumstances show less 
 disposition than in former times to bear iheir 
 sufferings in silence, and less repugnance to re- 
 lieve themselves by unlawful means. It is no 
 doubt true that when want and indigence are 
 widely diffused, all the aid that government 
 can render to assuage them must comparatively 
 be unavailing; but in the present emergency it 
 would perhaps be wiser policy, both for our 
 own welfare and that of our colonies, that ten 
 times the sum should be expended in convey- 
 ing honest poor to the settlements, which is 
 now employed in transporting them to New 
 South Wales after they have degenerated into 
 convicts. If any remedy of this kind either 
 could or ought to be applied, it should only be 
 temporary, and preferred with no other view 
 than as the substitution of a lesser evil for a 
 greater. Provision ought also to be made, if 
 possible, for the return of the money advanced 
 either in the shape of money or labour ; for, if 
 this is not done, the effect of such a measure 
 would in no respect differ from that of the 
 poor-rates, which is another cause of the pre- 
 sent increase of crimes, and one which is infi-
 
 280 ON THE CRIMINAL LAW. 
 
 nitely more alarming. In whatever aspect the 
 operation of the poor laws is considered, they 
 show themselves to be the greatest moral 
 plague that ever overspread a country. How 
 far or how soon it might be practicable to 
 repeal them, it may be difficult ^o determine ; 
 but perhaps no legislative provisions which 
 ever were enacted in any age or country, have 
 contributed so much to cherish every vice at 
 the expense of every virtue, and to encourage 
 disobedience to the laws among those who re- 
 ceive relief, in the exact proportion that they 
 promote the impoverishment of those from 
 whom that relief is extorted. Places of riot- 
 ous assemblage, and especially unnecessary 
 fairs, are another cause of crimes which ought, 
 indisputably, to be either restricted or abo- 
 lished. There are said to be no fewer 
 than eighty-two fair days in the neighbour- 
 hood of London in the course of every sum- 
 mer, each exceeding another in scenes of 
 disgusting disorder and debauchery. Why 
 such nurseries of vice should have been so long 
 tolerated in a civili-zed and moral country ex- 
 ceeds comprehension, for of all nuisances they 
 seem to be the most easy to be suppressed and 
 least susceptible of vindication. It has been 
 asked, why should not the labouring classes
 
 ox Tilt: CKl.MlXAl. LAW. 281 
 
 have their places and seasons of enjoyment and 
 indulg-ence as well as the rich and idle ? It is 
 very right they should ; but neither the one nor 
 the other ought to be riotous or disorderly. 
 Whether temptation throws out her lures on 
 the village green, or in the streets and saloons 
 of a luxurious city, can make no real differ- 
 ence. At whatever time or place there is a 
 flagrant violation of the most obvious rules 
 of decency and decorum, the arm of authority 
 ought to interpose to put a stop to the disgrace 
 and mischief it occasions. Public houses are 
 almost equally objectionable. They exist 
 in such multitudes, both in town and coun- 
 try, perpetually holding out attractions to 
 those classes of the community who are least 
 able to resist them, that they can be regarded 
 in no other light than as schools of iniquity, of 
 which no principle of law or policy can jus- 
 tify the continuance. To find fault with a 
 just allowance of public houses, as places of 
 reasonable recreation and refreshment, would 
 no doubt be both preposterous and ridiculous ; 
 but to their excessive numbers, disorderly ma- 
 nagement, and unseasonable hours, many and 
 grievous evils are distinctly owing. It is in 
 them time and money, which tradesmen and 
 labourers can ill spare, is spent ; domestic un-
 
 282 ON TlIK CUIMIXAL LAW. 
 
 happiness created or increased ; bad connexions 
 formed ; familiarity with crime established, 
 and consent too often given to become partici- 
 pators in its perpetration. It is there illegal 
 combinations are organized ; plans for the com- 
 mission of crimes usually proposed and ar- 
 ranged ; and there the actors in them almost 
 invariably reassemble after their accomplish- 
 ment. That the continuation of them should 
 ever have been seriously defended on the 
 score of their being a rendezvous where cri- 
 minals may be conveniently traced or caught 
 seems almost incredible. It might with as 
 much truth be contended, that covers are pre- 
 judicial to the breed of game, because it is 
 sometimes shot where it is sheltered. Those 
 who are in possession of the Report of the 
 Committee on Gaols are intreated to turn to 
 the evidence of Dr. Lushington, printed at 
 page 162, and they will find proof of the 
 encouragement and assistance which public 
 houses lend to delinquents, of which till then 
 they probably had no conception. It puts the 
 necessity of a more effective preventive police 
 in the strongest possible point of view. How 
 that object is to be attained, whether by 
 strengthening the hands of the commissioners 
 of police by a larger force or greater powers.
 
 ON' rm. ( Ki.MiNAJ, i,A\\ . 2H3 
 
 or in any other manner, is an intricate subject, 
 and one upon which it would in this place be 
 unadvisable to enter. One thing is certain, 
 that without giving them greater authority over 
 certain sorts of houses and persons than they 
 enjoy at present, no material good can ever be 
 effected. This would in some instances de- 
 mand the surrender of some of the privileges 
 of the subject, and whatever sacrifice can rea- 
 sonably be demanded for that purpose ought 
 to be made without reluctance. The scenes 
 of depravity disclosed in that Report, reflect 
 disgrace on the license system, on the whole 
 police of London, and excite wonder and asto- 
 nishment that such deeds could be acted night 
 after night, without colour or concealment, in 
 any country where criminal law exists and civil 
 order is established. If the multiplication and 
 management of public houses really augment 
 misery and guilt to that degree which has 
 been here supposed, the good they do to agri- 
 culture and the revenue by the sale of spirits, is 
 but a slender compensation for the evil they oc- 
 casion. To connive at dissolute or desperate 
 habits, because they may help to replenish an 
 exhausted treasury, will be thought but a mi- 
 serable shift for any minister, as long as any 
 sense of right and wrong is left among us. It
 
 284 ON THE CRIMINAL LAW. 
 
 has not even the merit of a sound state expe- 
 dient ; for private vices, when traced through 
 all their consequences, will never prove in the 
 end to be public benefits ; and no prodigal 
 heir ever disposed of his expectations so im- 
 providently, as a finance minister, who, for the 
 supply of the immediate wants of the state, 
 practically assigns the expectant virtue of his 
 country. 
 
 Still however I am persuaded, that with all 
 the assistance which can be derived from pre- 
 ventive remedies, as well as corrective and pre- 
 ventive punishments, it will never be found 
 practicable to dispense with the infliction of 
 death altogether. It might even have proved 
 expedient to inflict it of late years more fre- 
 quently. This opinion has not been expressed 
 without due consideration of the consequences 
 to which it leads. None whose hearts or minds 
 are regulated as they ought to be, can ever think 
 or speak of that last resource of the law by which 
 a fellow creature is precipitated into the pre- 
 sence of his Maker, and that perhaps before 
 repentance has fully washed away his guilt, 
 without being deeply impressed by the solem- 
 nity of the subject. But though this reflec- 
 tion requires us to subject every step of the 
 reasoning employed to frequent and severe ex-
 
 UN' THE CRIMINAL LAW. 285 
 
 amination, yet if it is found to abide the test to 
 which it has been put, it is neither wise at first 
 nor will it be found merciful in the end to evade 
 the conclusion to which that reasoning may 
 fairly conduct us. 
 
 It has been objected to the infliction of capi- 
 tal punishment, or at least on any but extremely 
 rare occasions, that it is neither congenial to 
 the feelings of the people, nor consonant to 
 the spirit of the Christian religion. These 
 topics it is now the practice to introduce on 
 almost every occasion on which criminal law 
 is mentioned. That the feelings of the people 
 ought invariably to be treated with tenderness 
 and respect, there can be no question. But it 
 is as true, on the otherhand, that these feelings 
 are peculiarly apt to be misunderstood and mis- 
 led, as well as liable to great and sudden fluctu- 
 ations ; and that those in whose bosoms they 
 run strong in favour of mitigation of punishment 
 to-day, may by a violent attack on their pro- 
 perty or peace of mind, have the whole cur- 
 rent of them changed to-morrow. It is always 
 dangerous to attempt to alter the laws, either 
 by means of the public feelings, or because 
 such feelings exist. The appeal ought to be 
 made to the understanding and not to the affec- 
 tions. Let the understanding^ once be con-
 
 28G ON THE CRIMINAL LAW. 
 
 vinced, and it will ultimately controul the feel- 
 ings ; but if the feelings should ever be hurried 
 away in opposition to the understanding, sooner 
 or later there will be a reaction, and then it 
 may safely be predicted that ample amends 
 will be made for the mistake by running as far 
 in an opposite direction. At present there is no 
 reason to believe, whatever declarations may 
 have been made to the contrary, that the feel- 
 ings of the great majority of the country would 
 refuse to acquiesce with readiness in the con- 
 tinuance or introduction of any penal code, 
 whether gentle or severe, by which the commis- 
 sion of crimes could most effectually be stayed. 
 The Christian religion has as little to do with this 
 discussion, as popular feelings ought to have. 
 How irrelevantly that sacred subject is fre- 
 quently introduced, may be seen by the follow- 
 ing extract taken from a petition from London, 
 Westminster, and Southwark, which was pre- 
 sented to the House of Commons in 1821, 
 respecting the transfer of the elective franchise 
 from Grampound to Leeds. '• The Petitioners 
 ' however beg leave respectfully to declare to 
 ' the House their strong aversion to the princi- 
 
 * pie of the clause introduced into the said bill, 
 
 * setting up the possession of wealth as the qua- 
 ' lification for the elective franchise, by with-
 
 ON THE CKIMINAJ. LAW. 287 
 
 * holding tlie right of voting from all such as 
 
 * shall not occupy premises to the annual value 
 
 * of 20/., in lieu of the system sanctioned from 
 
 * time immemorial by the common law, by 
 ' which all were intitled to vote who paid scot 
 
 * and bore lot ; it appearing to the Petitioners 
 ' that civil disqualitications and exclusions 
 
 * founded on such an invidious innovation, a?'e 
 
 * ungenerous, contrari/ to the analogy of the Con- 
 ' stitut'ion, iliratly oppo,scd to the great charaeter- 
 ' istic of the Christian religion, and little suited to 
 
 * the improvement and hoped for progress of the 
 
 * people in knowledge." 
 
 Expressions indicative of more pure and ex- 
 alted sentiment than those which are foisted 
 into the democratic protest, are not to be found 
 either in the circular of the Society for the 
 Improvement of Prison Discipline, or in any of 
 the petitions for the revision and mitigation of 
 the Criminal Law, or can more convincingly 
 prove how easy it is for weak or designing 
 men to use words of high and serious import, 
 without any of the reverence with which the 
 mention of them ought to be accompanied. 
 The Christian religion ought never to be named 
 but with the deepest awe, and cannot be too 
 sparingly brought forward in matters of worldly 
 concern and doubtful disputation. That it en-
 
 288 ON THE CRTMIXAL LAW. 
 
 joins humanity and mercy in the strongest and 
 most persuasive general terms is assuredly 
 true ; but to what acts or regulations the epi- 
 thets of merciful or humane ought to be ascribed 
 and from what they ought to be withheld, is 
 here the very point in question ; and this the 
 Christian religion, in conformity with the hea- 
 venliness of its means and end, has left every 
 political society to determine for itself. Its very 
 existence implies the power of doing every act 
 which may be necessary for its continuance and 
 well-being, and if there are offences which 
 nothing but capital punishment will repress, it 
 follows as a necessary consequence that it is en- 
 titled to impose it. We have with astonish- 
 ment heard capital punishment denied to be the 
 most dreaded of all human punishments. The 
 sentiments and history of all mankind refute the 
 allegation. If there are a few common thieves 
 or other hardened malefactors for whom death 
 has no terror, they are exceptions to the gene- 
 ral rule, and not examples of the general rule 
 itself. Let their conduct be subjected to a 
 narrow scrutiny, and the greater part of them 
 will prove to be no exceptions at all. The very 
 exertions which on the near approach of death 
 they find it necessary to make, in order to 
 " screto their courage to the sticking place,'' is the
 
 OS TlIK CUI.MI.V \l. l,A\r. 289 
 
 most convincing evidence wliicli could be af- 
 forded of their apprehension of an event which 
 they pretend to regard with such perfect in- 
 difference. By most people it is admitted that 
 capital punishment may be an object of terror 
 if sparingly used ; but then it is said the laws 
 of this country so frequently enforce it, that 
 like an overstrained spring it has lost all its 
 efficacy either on criminals or the public ; and 
 that, at most executions, the feeling excited is 
 adverse to the laws, and favourable to the suf- 
 ferer. That the first emotion which arises in 
 the mind on such an occasion should be that of 
 commiseration for the culprit is perfectly na- 
 tural, and that the feeling just mentioned has 
 within these few years been in some instances 
 loudly expressed, is indubitable. By whom, 
 and by what means, and for what purposes, 
 this clamour was raised and has been continued, 
 it would not be difficult to trace, and some- 
 what instructive to explain. As usually hap- 
 pens, however, in violent ebullitions of popular 
 passion, it owes its existence either to entire 
 ignorance or gross perversion of the facts on 
 which it pretends to be founded. It is believed 
 by many, and those too whom one would ex- 
 pect to be better informed, that six or eight 
 persons are executed at the door of Newgate 
 
 u
 
 290 ON THE CRIMINAL LAW. 
 
 at the beginning ofalmost every week throiigh- 
 ont the year, besides hundreds who suffer in 
 the course of the spring and summer assizes 
 throughout the country. For the correction of 
 such an error the following documents are quo- 
 ted from the Appendix to the Report of tlie 
 Committee on Crimimal Laws. The first is a 
 table of the number of capital convictions and 
 executions in London, from the year 1700 to 
 1755 inclusive. In 1700 the convictions were 
 21, the executions 8. 
 
 1701. 14. 3.— 1702. 8. 4.— 1703. 9. 1.— 1704. G. 1 
 170.). 19. 8.-1705. 11. 2.— 1707. 13. 8.— 1708. 14. 4 
 1709. 10. 1.— 1710. 17. 0.— 1711. 17. 1.— 1712. 18. fi 
 1713. 28. 11.— I7I4. 28.11.— 1715. 32. 14.— 171G. 35. 12 
 1717. 35. 11.-1718. 25. 5.-1719. 31. 7.-1720. 22. 12 
 1721. 26. 11.— 1722. 19.12.— 1723. 7. 2.— 1724. 14. 4 
 1725. 15. 8.— 172G. 22.13.— 1727. 7. 1.-1728. 25. 17 
 1729. 14. 5.-1730. 7. 3.— 1731. 11. 9.— 1732. 15. 7 
 1733. 9. 3.— 1734. 7. 1.— 1735. 11. 1.— 1736. 7. 3 
 1737. 12. 0.— 1738. 15. 8.-1739. 11. 3.— 1740. 14. 4 
 1741. 11. 5.-1742. 12. 6.-1743. 12. 8.-1744. 21. 15 
 1745. 8. 4.— 174G. 4. 0.-1747. 5. 0.— 1748. 5. 
 1749. 12. 0.— 1750. 23. 9.— 1751. 13. 8.— 1752. 5. 4 
 1753. 9. 7.-1754. 12. 6.-1755. 11. 5. 
 
 The second is a table of the number of ca- 
 pital convictions in London and Middlesex, 
 from 1749 to 1818 inclusive. In 1749 there 
 were 61 convictions and 44 executions. — 
 
 1750. 84. 56. 1751. 85. 63. 1752. 52. 47. 
 
 1753. 57. 41. 1754. 50. 34. 1755. 39. 21.
 
 ox 'MIK C'la.MI.VAr, LAW. 291 
 
 17r>«. .30. 1.3. J/.',7. ;!7. 2fi. 1758. .32. 20. 
 
 17.>y. l.>. fJ. 17fiO. 11. 10. 17G1. 22. 17. 
 
 17G2. 2.0. 15. 17(J3. fil. 32. 17G4. 52. 31. 
 
 17C5. 41. 2G. 17 (>0. 39. 20. 17G7. 49. 22. 
 
 17GS. 54. 27. 1709. 71. 21. 1770. 91. 49. 
 
 1771. GO. 34. 1772. 79.37. 1773.101.32. 
 
 1774. 87.32. 1775. 74.46. 177G. 80.38. 
 
 1777. G3. 32. 1778; 81. 33. 1779. GO. 23. 
 
 1780. 94. 50. 1781. 90. 40. 1782. 108. 45. 
 
 1783. 108. 45. 1784. 153. 5G. 1785. 151. 97. 
 
 178G. 127. 50. 1787. 113. 92. 1788. 83. 25. 
 
 1789. 97. 2G. 1790. 67. 33. 1791. 83. 34. 
 
 1792. 89.24. 1793. 58. IG. • 1794. 71. 7. 
 
 1795. 49.22. 179G. 93.22. 1797. 81.19. 
 
 1798. 82. 19. 1799. 72. 21. 1800. 101. 19. 
 
 1801. 101. 14. 1802. 97. 10. 1803. 82. 9. 
 
 1804. 67. 8. 1805. G3. 10. 180G. GO. 13. 
 
 1807. 74.14. 1808. 87. 5. 1809. 89. 8. 
 
 1810. 118. 13. 1811. lOG. 17. 1812. 132. 19. 
 
 1813. 138. 17. 1814. 158. 21. 1815. 139. 21. 
 
 181G. 227. 29. 1817. 208. IG. 1818. 201. L'l. 
 
 The third is a table of the total number of 
 persons who have been committed, capitally 
 convicted, and executed, in England and Wales, 
 between 1805 and 1818 inclusive. In 1805 
 4,605 were committed, 350 capitally convicted, 
 and G8 executed. 
 
 1806. 4,346. 325. 57. 1807 4,446. 343. 63. 
 
 1808. 4,735. 338. 39. 1809. 5,330. 392. CO. 
 
 1810. 5,146. 476. 67. 1811. 5,337. 404. 4r>. 
 
 1812. 6,576. 532. 82. 1813. 7,164. 713.120. 
 
 1814. 6,390. 558. 70. 1815. 7,818. 553. ',7. 
 
 1816. 9,091. 890. 95. 1817.13,932.1,302.115. 
 
 1818. 13,567. 1,254. 97. 
 
 u 2
 
 292 ON THE CRIMINAL LAM'. 
 
 It will now be seen how groundless the in- 
 vectives are, which have been directed against 
 the late supposed actual or comparative in- 
 crease of executions. The fact is exactly the 
 reverse of that which is assumed ; and since 
 the year 1750, executions have decreased in 
 the exact proportion in which convictions have 
 have augmented. The difficulty no doubt is, 
 to discover whether the decrease in the num- 
 ber of executions has been the cause of the in- 
 crease of crimes. Had 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 admits. But a reference to the 
 tables just quoted will show that no uniform 
 result can be deduced from them. It is true 
 that in this department of policy, there are 
 a greater number 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 exe- 
 cutions 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 other-
 
 ON THE CRIMINAL I.AM'. 293 
 
 wise have increased them. As no facts ought 
 to be suppressed which bear upon so interest- 
 ing a question, the preceding tables are inserted 
 in the state in which they appear in the 
 Appendix to the Report on Criminal Laws, 
 whether they may ultimately prove favourable 
 to the opinions here expressed or not, and that 
 those wdio examine them may be left at full 
 liberty to draw whatever conclusions they may 
 think most consonant to the truth. 
 
 Those who urge the abolition of capital pu- 
 nishment, ask if it is possible to produce an 
 instance of a country, which was at once re- 
 markable for the rarity of its crimes and the 
 severity of its punishment; and endeavour to 
 prove from some facts contained in these ta- 
 bles, and a few drawn from other sources, that 
 diminution of crimes has generally or invariably 
 accompanied mitigation of punishment. An ex- 
 treme case usually proves nothing in favour of 
 those by whom it is advanced, or against those 
 by whom it may be admitted. Probably no 
 country can be found, where crimes have been at 
 once remarkably rare, and punishment remark- 
 ably severe. It is not necessary to produce an 
 example of such a sort. Reduce the supposed 
 severity of punishment to a reasonable degree 
 on the one hand, and rarity of crimes on the
 
 294 ON THE CRIMINAL LAW. 
 
 Other, and the question may be satisfied by 
 asking in return, if a country is to be found 
 where crimes were rare, in which punishments 
 do not possess a considerable degree of seve- 
 rity. Take the instance of Scotland, which is 
 perhaps the best, because the nearest, and be- 
 cause the facts connected with it are capable 
 of the easiest ascertainment. If any one looks 
 into Hume's Criminal Law of Scotland, he will 
 probably be satisfied that during the whole of 
 the 18th century neither the letter nor practice 
 of the criminal law of that country was parti- 
 cularly mild, and yet offences during that time 
 were probably of more rare occurrence than in 
 almost any other state in Europe. 
 
 The facts contained in the tables which have 
 been relied upon as militating against severity 
 are, the increase of certain excise offences 
 which has taken place since they were made 
 capital, and the diminution of convictions for 
 stealing from bleaching grounds since the ca- 
 pital punishment was abolished. It would be 
 hard if those who are unable to approve of all 
 the principles of penal legislation which have 
 been lately broached, were bound to defend 
 every increase and resist every relaxation of se- 
 verity. The late extension of capital punishment 
 to a variety of excise offences, appears in every
 
 ON THE CRIMINAL LAW. 293 
 
 point of view to have been unadvisable, and 
 cannot well be of any avail to show its effi- 
 cacy in preventing crimes, because in fact it 
 has scarcely ever been inflicted. With regard 
 to larceny from bleaching grounds, those who 
 are exposed to it, may from some cause be 
 better able to protect their property without 
 the help of capital punishment than they were 
 formerly, or capital punishment may have been 
 unnecessary from the beginning. The parti- 
 culars which are now before the public, seem 
 to show that mitigation of punishment has in 
 this instance been judicious, and the fact ought 
 to be allowed whatever weight it is entitled 
 to in the general argument. But on looking 
 through the whole returns in the Appendix to 
 the Report on Criminal Laws, 1 cannot find 
 that more than four individuals have ever suf- 
 fered capitally under this act, and though it is 
 to be regretted that even so many should have 
 been executed for an otience which might have 
 been effectually prevented by less severity, it 
 would be exceedingly precipitate to infer from 
 this that diminution of crimes may generally 
 or invariably be expected to attend mitigation 
 of punishment. Two other facts which are fur- 
 nished by America have been adduced, from 
 which the same conclusion is supposed to re-
 
 2961' Qy THE CRIMINAL LAW. 
 
 ceive considerable confirmation. One of them 
 is the diminution of crimes which followed the 
 great mitigation of the penal code of Pennsyl- 
 vania in 1791, and the increase of crimes which 
 took place at the same time under the unmiti- 
 gated code of New York. Whatever the cause 
 of the diminution of crimes which occurred in 
 Pennsylvania at the time alluded to may have 
 been, it has not been of long continuance, for 
 it has been already mentioned that the num- 
 ber of untried prisoners returned on the calen- 
 dars at the different sessions of the mayor's 
 court of the city and quarter session of the 
 city of Philadelphia, was in 1813 — 516; in 
 1814—538; in 1815—^29; and in 1816—1,058. 
 Mitigation of punishment may have here con- 
 tributed to produce multiplication of crimes, 
 but cannot probably be said to have diminished 
 them. Let us now proceed to the case of New 
 York. The criminal law of that state was mi- 
 tigated it would appear in 1797, and in the 
 report of the commissioners of the state of 
 Massachusetts, it is specified as a proof of 
 the advantages of the new code, that the num- 
 ber of convictions for highway robbery from 
 the year 1797, when the penitentiary was es- 
 tablished, to the year 1805, was only 1. It 
 appears, however, from A Vkiu of the Neio York
 
 ox THE CUIMIXAL LAW. 297 
 
 Prison by a Member of the institution, that 
 the total number of persons admitted to tlie 
 New York state prison IVom its establishment 
 in 1797, to the end of 1814, was 3,0G2. Of 
 these there were 26 for arson, 14 for rape, 5 for 
 sacrilege, 8 for highway robbery, 50 for house- 
 breaking, lie for burglary, and no fewer than 
 356 for forgery. In 1814, 213 were admitted, 
 of whom there were 3 for rape, 3 for highway 
 robbery, 2 for arson, 7 for burglary, and 26 for 
 forgery. Whether the mitigation of criminal 
 law has caused an increase or diminution of 
 the number of criminal offences these docu- 
 ments aftbrd no criterion for judging, but the 
 aggravation of the crimes for which prisoners 
 are committed to the state prison, in proportion 
 to the number of them, is in almost every in- 
 stance beyond what is known in this country. 
 This difference is observable in forgery in 
 particular. In England the number convicted 
 of that offence forms only an 100th part of the 
 whole criminals. In New York, on the contrary, 
 forgers amount to no less than l-8th of the 
 whole number. In other words, there are twelve 
 times as many convicted forgers in America as 
 in England, which is a disparity for which no 
 readiness to prosecute which may exist in 
 America can sufficiently account. From some
 
 298 ON THE CRIMINAL LAW. 
 
 particulars I have heard respecting France, I 
 am also inclined to believe that the mitigation 
 of the law of that country has tended to in- 
 crease both the number and aggravation of 
 crimes, but they are not sufficiently precise or 
 authentic to be detailed, or to have any reli- 
 ance placed upon them. 
 
 The general complexion of the tables pub- 
 lished by the Committee on Criminal Law^s, 
 leads to the same result : instead of showing 
 that abolition of capital punishment and dimi- 
 nution of crimes usually go together, they seem 
 to show that great mitigation of punishment, 
 especially if continued for several years toge- 
 ther, has so generally been followed by multi- 
 plication of crimes, as to afford strong presump- 
 tion that a necessary connection exists between 
 them. An instance of this seems to occur in 
 1746, 7, 8, and 9, when no executions for rob- 
 bery took place. It was towards the latter 
 part of this period that Fielding published his 
 pamphlet on the increase of robbers, and ac- 
 cordingly in 1750, when the course of lenity 
 adopted may be supposed to have had the 
 fullest effect on robbers, the number of con- 
 victions is double that of the year before. In 
 that year 9 were executed, and 8 in 1751, and 
 the evil was brought back to its former level.
 
 ON THE CltlAIINAI^ LAM'. 299 
 
 It is also well known to those practically ac- 
 quainted with criminal law, that certain crimes, 
 from the lenity of particular judges or some 
 other accidental causes, from time to time be- 
 come unusually prevalent in different parts of 
 the country, and that the infliction of capital 
 punishment has almost always succeeded in 
 repressing it. Most barristers, who have prac- 
 tised for a considerable time on any of the cir- 
 cuits, are able to give one or two instances in 
 which this has happened within their own know- 
 ledge, and the opinion is so generally received, 
 that it is not easy to believe it to be without 
 foundation. 
 
 But by far the strongest confirmation of the 
 relation between extreme restriction of capital 
 punishment and increase of crimes, and upon 
 which I should be su])posed principally to rest, 
 arises from the experience of the last 15 or 20 
 years. The annual average number of capital 
 convictions in London and Middlesex, from 1749 
 to 1755, was (j\ ; the number of executions 43. 
 From 1763 to 17G9, the number of capital con- 
 victions was 52 ; the executions 26, or 1 exe- 
 cution out of 2 convictions. This proportion 
 continued till 1790. The proportion of exe- 
 cutions to that of capital convictions went on 
 diminishing till 1808, when there were 87 ca-
 
 300 ON THE CRIMINAL LAW. 
 
 pitally convicted, and only 5 executed. In this 
 year the executions bore an unusually small 
 proportion to the executions, but the executions 
 had gone on diminishing so fast that in 1805 
 they were to the convictions as 1 to 5, and 
 in 1818 only as 1 to 13. The average annual 
 number of capital convictions which in the 7 
 years of war from 1756 to 1763 were only 25, 
 and in the 7 years of peace from 1763 to 1769, 
 (as it is in peace that crimes seem to be more 
 prevalent than during war,) were only 52, on 
 an average of the 7 years, from 181 1 to 1818, 
 amounted to no less than the annual number 
 of 172. In 1805 the executions were to the 
 convictions as 1 to 5, in 1818 as 1 to 13, and 
 in this short period the number of commitments 
 and convictions has increased threefold. The 
 Committee on Criminal Laws seem to have 
 shown satisfactorily, that this increase has not 
 arisen from any temporary rigour on the part of 
 prosecutors, nor is it easy to suppose that it can 
 be altogether accounted for from the circum- 
 stances of the times. The diminution of ca- 
 pital punishment presents itself as a more 
 obvious and powerful cause than either ; know- 
 ing, as criminals do, that this diminution has 
 been produced by the reasoning and declama- 
 tion which have during that time been directed
 
 ON THE CKI.MI.VAL LAW. 301 
 
 SO unremittingly against it. Mr. Harmer has 
 remarked in his evidence, * tliat thieves ob- 
 
 * serve the sym})athy 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. The view which they take of criminal 
 law is extremely diflerent from that of Mr. 
 Buxton. Throughout the whole of his speech 
 Mr. Buxton has attended solely to the letter 
 of the law, and has scarcely in a single in- 
 stance deigned to allude to its achniiiistratiou. 
 In whatever way this oversight has happened, 
 it seems fatal to the whole course of his argu- 
 ment. He not only complains that the law is 
 more severe in appearance than in substance, 
 but that its substantive severity is still too 
 great, and yet never notices the fact that crimes 
 have increased exactly as this substantive se- 
 verity has gone on diminishing. Most of those 
 who are tried for crimes on the other hand are 
 entirely practical persons. They seldom think 
 of the letter of the law, but always of its 
 administration, 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 mankind criminals are the most acute in
 
 302 ON THE CROirNAL LAW. 
 
 discovering arguments in their own favour, and 
 in turning to advantage the sentiments and 
 observations of others indicative of pity for 
 their situation. With great unwillingness to 
 withdraw inveterate or desperate offenders 
 from capital punishment, it is hoped no ex- 
 pression has been used which can be construed 
 into an approbation of its inconsiderate exer- 
 cise. There can be no good reason for exer- 
 cising severity towards the few, but that of 
 compassion to the many; and a deep convic- 
 tion that punishment may be mitigated to so 
 great a degree, that thousands may deplore it 
 as the cause of their imperceptible deviation 
 from innocence. 
 
 Cuncta prius tcntata : sed inimedicabile vulnus, 
 Ense recidcndum, ne pars sincera trahatur. 
 
 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 in- 
 dividual instances of its operation. The result 
 of it in this country seems however in some 
 degree to have at last become palpable. The 
 total number of commitments for one year were 
 in 1805, 4,605, and the convictions 2,783, and 
 in 1818 the commitments had increased to the'
 
 ox THE CIU.MIN'AL LAW. 303 
 
 enormous number of 13,5G7, and llie convic- 
 tions to 8,958. So far tlien, as the facts before 
 us enable a conclusion to be drawn, it is a more 
 severe, and not a more mitigated exercise of 
 capital punishment, which they seem to war- 
 rant. 
 
 III. The third and last subject into which it 
 was proposed to inquire, was the best method 
 which can be adopted for the improvement of 
 Criminal Law. Instead of following that plan 
 of proceeding upon which the Committee ap- 
 pear to have set out, which is that of intro- 
 ducing a series of consecutive amendments, it 
 is suggested that it might be more advisable 
 at once to attempt a consolidation of the whole 
 system. 
 
 I am fully aware of the suspicion with which 
 such a proposal will by various persons be re- 
 ceived. Besides those who candidly assign 
 their reasons for believing it to be imprac- 
 ticable, there are others who may discounte- 
 nance it, because the country has thriven, and 
 the law long gone on without it ; or who think 
 that such a thing is incapable of being executed 
 for no other reason but because it has never 
 seriously been attempted. It may tend some- 
 what to disarm the hostility of such opponents, 
 to be assured that the opinion now intimated
 
 304 ON THE CRIMINyVL LAW. 
 
 has not been formed rashly, or expressed 
 without extreme hesitation. I am on that ac- 
 count the more anxious to guard myself against 
 the supposition of entertaining any propensity 
 to the introduction of theoretical notions into 
 any portion of our jurisprudence. No new 
 principles or component parts are desired for 
 the construction of a fresh Penal Code, but 
 only a more convenient distribution of the old 
 ones. This would make it more compact, re- 
 gular, and intelligible, and exceedingly dimi- 
 nish those 200 capital punishments, which it 
 is said to authorise, and which have been re- 
 counted to its prejudice in almost every corner 
 of Europe. It is the misfortune of the criminal 
 law of England that it has legislated separately 
 not only for every species of offence, but for 
 every possible combination of circumstances in 
 which that species can be committed. This 
 has caused it to be spread over so many vo- 
 lumes, and the enactments on the same sub- 
 ject to become so numerous, complicated, re- 
 dundant and incongruous, that the legislature 
 is loudly called upon to attempt its simplifica- 
 tion. The more the subject is reflected on, the 
 more convincingly will it appear that some con- 
 densation of the criminal law must in one way 
 or another be undertaken at no distant period.
 
 ox TFIK CRIMINAL I. AM'. 305 
 
 and it usually proves least troublesome and 
 dangerous to do that completely which can no 
 longer be avoided. It must not be supposed, 
 however, that sucli a measure is now broached 
 for the first time. Although no serious step 
 has ever been taken towards its accomplish- 
 ment, it is a 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 lien. 
 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 par- 
 liament, 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 peti- 
 
 * tioned 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 un- 
 
 * profitable 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 statute.' Nothing 
 
 X
 
 30G ON TH?: CRIMINAL LAW. 
 
 can exceed the clearness, energy, and com- 
 prehensiveness of the expressions here em- 
 ployed. Whether the subject was at all revived 
 during the next 100 years is not known. 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,) ' 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 inef- 
 fective intentions of the government are not 
 the only circumstances which afford counte- 
 nance to such a consolidation as that which has 
 been 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 bu- 
 siness, ought to have greater weight than those 
 of any three lawyers that ever lived in Eng- 
 land. The sentiments of Lord Bacon appear 
 from his Dedication, to Queen Elizabeth, of his 
 Elements of the Common Law of England, and
 
 ox THE CRIMIXAI LAW. 307 
 
 still more particularly from the proposal made 
 by him to James I. * touching the compiling- 
 and amendments 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 main- 
 
 * tain 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 fore- 
 
 * sight.' 
 
 To this he answers with that M^eight of 
 thought and expression which so peculiarly be- 
 X 2
 
 308 ox THE CRIMINAL LAW. 
 
 longs to him, — ' All piirgings and medicines, 
 ' either in the civil or natural body, are inno- 
 
 * vations : 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 con- 
 
 * cern the consciences, estates, and fortunes of 
 ' particular persons ; but this of general ordi- 
 ' nance, 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 e.vplaiiation, 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 con- 
 ' cerning 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 en- 
 ' tangle the subjects withal ; and to omit all 
 ' those that be repealed, that none by them be
 
 ox TllF, CKI.MINAL LAW. 309 
 
 * deceived, as for example, concerning drapery 
 
 * or such like. To make one plain and per- 
 
 * spicLious law, divided into articles, so as every 
 
 * subject may know what acts be in force, and 
 
 * what repealed, either by particular or ge- 
 
 * neral 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 com- 
 
 * manded 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 parti- 
 
 * cular point ; but with this caution, that there 
 
 * be certain statutes concerning the administra- 
 
 * tion 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 brin^-ino: of the common laws 
 ' into a better method, I doubt much of the 
 ' fruit of that labour.'
 
 310 ox THE CRIMINAL LAW. 
 
 The last person alluded to is Lord Hale, and 
 for his judgment the reader is referred 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 exalt- 
 ed 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 understand- 
 ing, in no respect inferior to that of Bacon him- 
 self. More judicious maxims than the follow- 
 ing cannot be met with. * Therefore it is of 
 ' great importance upon any alteration of the 
 ' laws, to be sure,— 1. That the change be de- 
 
 * monstrable to be for the better, and such as 
 ' cannot introduce any considerable inconveni- 
 
 * ence 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,
 
 ox Till:: CUI.MIXAL LAW. U 1 1 
 
 which, thoug^h they are not intimately connected 
 with the present subject, are yet so applicable 
 to the present times, that no apology will be 
 required for quoting them. * Exemplary mis- 
 ' carriages 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 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 im- 
 
 * portance.' — And at page 270, * All that which 
 
 * I contend for in the first or second chapter is, 
 ' not to render laws of men like laws of nature,
 
 312 ON THE CRIMINAL LAW. 
 
 ' fixed and unalterable, but that it be done 
 
 * with great prudence, advice, care, and upon 
 
 * a full and clear prospect of the whole busi- 
 ' ness.' And immediately afterwards, ' I shall 
 ' add but this one thing- more, that it may justly 
 
 * be feared, that if something considerable for 
 ' the reformation of thinsfs amiss in the law be 
 
 * not done by knowing or judicious persons, too 
 
 * much may some time or other be done by 
 
 * some, either out of envy at the professors, or 
 
 * mistaken apprehensions, or popular humours. 
 
 * The amendment of things amiss timely, by 
 
 * knowing able and judicious men that under- 
 
 * stand their business, may do very much good, 
 
 * and prevent very much evil that may other- 
 ' wise ensue ; and when the business is begun 
 
 * by such hands, it may possibly be too late to 
 ' allay it. And it will have this plausible pre- 
 
 * tence, that the judges and lawyers will do 
 
 * nothing to the laws, and therefore it shall be 
 ' done by other hands. Such a humour would 
 
 * be more easily prevented by a wise and 
 ' seasonable undertaking in this kind, which 
 ' would not be so easily diverted or allayed, 
 
 * if once it should be flying. And thus much 
 
 * for this chapter.' 
 
 These quotations have not been introduced 
 for the purpose of gracing the discussion with
 
 O \ T H £ C U I -M I N A L L A W. 313 
 
 illustrious names, or in order to bend ex- 
 pressions to a different purpose from that for 
 which they were intended, but because they are 
 deliberate opinions, announced by men whose 
 authority we are accustomed to revere, on the 
 very measure now under consideration; and 
 brought forward to show that the undertaking 
 which has been suggested is neither new nor 
 chimerical. From the accumulation of penal 
 statutes which has since taken place since their 
 time, and the additional volumes over which 
 they are scattered, it must be far more neces- 
 sary now than it was at the period when their 
 sentiments were delivered. If further and later 
 testimony to the same effect is wanting, it is 
 ready to be produced, and of a character to 
 which no objection can be offered. It was 
 stated by Mr. Wilberforce in the House of 
 Commons, on the 18th of May, 1808, (11 Han- 
 sard's Debates', p. 400,) that at one time it was 
 Mr. Pitt's intention to have proposed a Digest 
 of the whole Criminal Law. The annunciation 
 of the intention is full and precise, though the 
 momentous nature of the events which occu- 
 pied his attention during the latter years of 
 his life prevented it from being carried into 
 execution. The utmost success with w^hich 
 the accomplishment of such a measure could
 
 314 ON Tiiil CRIMINAL LAW. 
 
 have been attended, would in this country and 
 at that time have contributed so little to the 
 extension of his fame, that nothing but a deep 
 conviction of its urgency and utility could have 
 prompted him to entertain it. 
 
 It may now be proper to suggest by what 
 means a general revisal of the criminal law 
 might be executed, and what the advantages 
 are which one great improvement would pos- 
 sess over a multitude of successive partial 
 amendments. 
 
 The first step would be to extract carefully 
 from the Statute Book the whole of the penal 
 laws now in force, classing them under diffe- 
 rent heads, in chronological order, and in the 
 exact words in which they now appear. No 
 classification could be devised which M^ould 
 give universal satisfaction, or against which 
 solid objections might not be raised, but this 
 does not seem a conclusive argument against 
 all such attempts. Although it is scarcely pos- 
 sible that any division should be suggested 
 which would at once be natural and complete, 
 yet as the Appendix to the Report of the Com- 
 mittee on Criminal Laws, shows the officers of 
 the courts of assize to have classed their returns 
 nearly in the same manner, without having had 
 any communication with one another, this cir-
 
 ON TllK CRI.MINAL LAW. 315 
 
 cumstance proves almost to demonstration, tliat 
 the chief subjects of criminal law might be 
 comprised under thirty or forty different heads. 
 The labour of ascertaining the law, on any 
 point to which there was occasion to refer, 
 would thus be materially diminished, and much 
 assistance towards its future amelioration would 
 be derived from the mere juxta-position of 
 materials of a kindred nature. Indeed it is not 
 easy to conceive how an extensive or safe 
 alteration of the criminal law can be founded 
 on any other basis, than that of some such col- 
 lection of scattered enactments as has been 
 now pointed out. What the next stage of pro- 
 ceeding ought to be, might create considerable 
 difference of opinion. The most desirable might 
 be, to effect a consolidation of all the enact- 
 ments relating to each of the heads just men- 
 tioned, preserving the substance entire, and 
 merely removing the repetitions, redundancies 
 and inconsistencies, which would then become 
 perceptible. By these means the substance of 
 the provisions of the present Criminal Law 
 would be preserved entire, but greatly reduced 
 in bulk, improved in form, and rendered more 
 intelligible whether considered singly or with 
 reference to one another. The execution of 
 this task would no doubt require much time,
 
 310 ON THE CTxIMIXAL LAW. 
 
 labour, and circumspection ; but whether the 
 legislature apportioned the execution of it 
 among certain of its own members, or delegated 
 it to others, it might be expected that in five 
 or six years, it might be so far digested as to 
 become a decided iihprovement on the present 
 system. When sufficiently matured, it might 
 be passed as one act, and till then there would 
 be no serious inconvenience in permitting the 
 law to remain in its present state. It is in no 
 respect the intention of the preceding sugges- 
 tions to recommend any particular plan of re- 
 visal. Its sole purpose is to remove the objec- 
 tions which would have been raised, if the pro- 
 posal had been unaccompanied with any such 
 specification ; and to show that when a conso- 
 lidation of the whole penal code was recom- 
 mended, it was not done without a distinct, 
 though perhaps, erroneous conception both of 
 the end in view, and of the means by which it 
 is attainable. Every effort in this way, which 
 would be safe and effectual, ought to be re- 
 ceived with favour; and it should not be for- 
 gotten that it would be one of the chief advan- 
 tages of reducing this branch of our municipal 
 institutions to a succinct and definite form, 
 that those who proposed amendments upon it, 
 and those who had to decide upon them.
 
 ON TIIK CRIMI.VAL LAW. 317 
 
 would more clearly perceive both what the law 
 is, and what the ctiect of a future projected al- 
 teration wouhl be. It has sometimes been sup- 
 posed that an ample index to the present laws 
 would, with less haz;ard, answer all the ends of 
 a digest. There is no reason to believe that it 
 would. An index may be inaccurate, or defi- 
 cient ; it never saves practising lawyers the 
 trouble of reference to the acts themselves, 
 and to persons not practising is of little use at 
 all. The farther indexes, excerpts, epitomies, 
 or any other helps, are multiplied, which are 
 said to supersede a consolidation of the cri- 
 minal laws, the more necessary will that con- 
 solidation appear. To go on without it, is to 
 legislate in the dark, w^ithout knowing with 
 any degree of precision what the effect of that 
 le<?islation will be. This is the main and in- 
 surmountable objection to a series of successive 
 separate amendments of the criminal law, and 
 a strong illustration of it is exhibited in the 
 Report of the Committee on Criminal Laws 
 itself. The 5th act in the second class of 
 offences which the Committee propose to re- 
 peal, is that of cutting dow-n growing trees, 
 which was formerly noticed ; and this, along 
 with all others contained in the same class, the 
 Committee say, they ' would make punishable
 
 318 ox THE CRIMINAL LAW. 
 
 either by transportation or imprisonment witii 
 hard labour.' Now supposing they should think 
 fit to punish it by imprisonment with hard 
 labour by a new law. The new act would be 
 that under which it would be intended that pro- 
 ceedings should take place ; while at the same 
 time the 15 Cli. II. c. 2. against the unlawful 
 cutting or stealing or spoiling of wood or under- 
 wood, which awards compensation to the owner 
 and ten shillings to the poor, or one month's im- 
 prisonment in the house of correction for the 
 first offence, — one month's imprisonment for the 
 second, — and for the third, imprisonment as in- 
 corrigible rogues and vagabonds ; and also the 
 punishment of transportation, imposed by 6 
 Geo. III. c. 48, would remain unrepealed. This 
 the Committee cannot have intended, and the 
 oversight could not have happened if a collec- 
 tion of all the penal statutes on the same sub- 
 ject had been before them when they began 
 reform. But this is not all. An act ' for pro- 
 viding summary remedy for certain wilful and 
 malicious injuries' done to trees, wood, and 
 underwood, as well as to other objects, was 
 passed in 1819, and constitutes a fourth pu- 
 nishment, totally different from either of the 
 former three. While the Committee are thus 
 employed in amending the old law, and cor-
 
 ox THE CRl.MINAJ, LAW. 310 
 
 reeling the mistakes or oversights whicli they 
 themselves and other members oi' the legis- 
 lature may in the mean while have committed, 
 new enactments will follow one another with 
 perplexing rapidity, before Criminal Jurispru- 
 dence has been reduced to any tolerable order. 
 Than such a state of things nothing can be more 
 mischievous. Neither judges, lawyers, prose- 
 cutors, prisoners, nor juries, can feel assured 
 that they exactly know the present state of a 
 law which is undergoing incessant revolution- 
 Alteration of the law should be avoided as long 
 as it can ; but, when it has become indispen- 
 sable, the care and consideration which is be- 
 stowed upon any important change, make it 
 less to 'be apprehended than a succession of 
 minor innovations which escape without obser- 
 vation. 
 
 Having now inquired successively into each 
 of the divisions of the Report of the Committee 
 on Criminal Laws ; into the possibility of abo- 
 lishing the punishment of death, together with 
 the effects of the subordinate punishments it 
 has been proposed to substitute in its stead ; 
 and lastly, into the propriety of attempting a 
 consolidation of the whole criminal law; all 
 the topics have been brought under discussion 
 to which it was wished to direct the attention
 
 320 ON THE CRIMINAL LAW. 
 
 of the reader. Before coming to a conclusion 
 I may be permitted to express some degree of 
 anxiety that the object of this inquiry should 
 not be misunderstood. If there really are any 
 persons who believe that no further endeavours 
 should or successfully can be made for the re- 
 formation of criminals or mitigation of criminal 
 law, I hope no expression or argument has 
 been used, which can justly subject me to the 
 imputation of participating in their sentiments, 
 or of entertaining the smallest degree of aver- 
 sion to the introduction of any practicable im- 
 provement. So far is this from being the case, 
 that I shall rejoice in the discovery, and if it 
 were in my power should cheerfully contribute 
 to the adoption of every means by which pu- 
 nishments may be mitigated, provided there 
 is sufficient evidence that they will continue 
 equally preventive. The preceding reasoning, 
 therefore, is intended not to retard but promote 
 the real advancement of penal jurisprudence, 
 by pointing out the danger which may result 
 from the introduction of sudden and violent 
 alterations, the safety and adequacy of which 
 seems so extremely questionable. It is impos- 
 sible not to suspect that many of the measures 
 which have lately been laid before the public 
 for the mitigation of punishment, have been
 
 ON THE CRIMINAL LAW. 321 
 
 crude and unclificsled, and the lanouaoe used 
 to recommend tlicm very injudicious. Of tliis 
 the bill for altering- the punishment for forgery, 
 which was introduced into the House of Com- 
 mons in 1821, aiibrds a prominent example, it 
 was without hesitation })ro|)osed by this bill to 
 abolish capital ])unishment in all cases of for- 
 gery, except that of Bank of England notes. 
 Even this exception was said to be a sacrifice 
 of principle to prejudice, and in the course of 
 the discussion strong insinuations were thrown 
 out — not only against all capital punishment 
 for forgery, but against all capital punishment 
 whatsoever. Had the opposite course been 
 pursued, and a bill introduced for abolishing 
 capital punishment in those cases of forgery, 
 where though frequently incurred it is never 
 inflicted ; or had the House, when such a bill 
 was before it, taken into its consideration wdie- 
 ther the punishment assigned to other forgeries, 
 not specified in it, might not also be alleviated ; 
 considerable difference of opinion might have 
 arisen upon the discussion of each particular 
 clause, but it would have been universally ad- 
 mitted, that such a proceeding was guided by 
 temperance as well as humanity, and a general 
 desire would have been felt to concur in its 
 provisions, as far as prudence would allow. 
 
 Y
 
 322 ON THE CRIMINAL LAW. 
 
 But as it was, an unrestricted principle was 
 advanced, which with a single exception would 
 at once have subverted the whole of our ex- 
 isting- laws on one of the most difficult subjects 
 on which legislation can be exercised. Of this 
 principle the House at the outset thought pro- 
 per to express its approbation, though it after- 
 wards acted as if it had soon become sensible 
 of its own temerity. The farther the conse- 
 quences of the principle were traced, the more 
 obvious it became that an adherence to it was 
 impracticable, and there is reason to believe a 
 considerable majority of the members of the 
 House are now satisfied, that had the bill which 
 was framed upon the principle which they them- 
 selves had recognised, actually passed into a 
 law, it would have been among the most daring 
 and unfortunate experiments which could have 
 been tried in a country where there is so much 
 unprincipled contrivance incessantly directed 
 against so much unprotected property. It is 
 this tendency to extensive and unhesitating in- 
 novation which creates alarm, and if the House 
 perseveres in the practice it has lately adopted, 
 of sanctioning theoretical abstract principles 
 and voting indefinite general resolutions, either 
 on criminal law or any other subject, it does 
 not require much penetration to foresee, that
 
 ON TMK CRI.MIXAl- LAW. 323 
 
 they will raise expectations which cannot be 
 gratified, and bring both themselves and the 
 public into a situation which they little con- 
 templated. 
 
 It seldom turns out to be prudent to bring 
 too sweeping an accusation against a whole 
 system of laws, and when the present flow of 
 sympathy and rage for reformation has spent 
 its force, it will be perceived that the criminal 
 code of England has been assailed of late with 
 too much asperity. Besides the various par- 
 ticular accusations which have been preferred 
 against it, some others have been brought for- 
 ward of a more vague and general nature. It 
 is said to be a deviation from the old common 
 law of the land ; that many of its enactments 
 are attributable to carelessness and selfishness ; 
 that the spirit which they breathe is less hu- 
 mane than the penal laws of the Saxons and 
 Normans; and that they are the wonder of 
 foreigners of intelligence and distinction for 
 their severity and inefficiency. Though re- 
 course is had to these objections for the osten- 
 sible purpose of removing obstacles to reason- 
 able alterations, their actual effect is to create 
 an impression unfavourable to the provisions 
 of the existing law. None of them are worthy 
 of much consideration. Servile adherence to 
 
 Y 2
 
 324 0\ Till-. CKI.AIIXAJ. L.\W. 
 
 the genuine or supposed ancient law ol" Eng- 
 land, has now almost entirely passed awajs 
 and all who value the honour or interest ot" 
 their country will concur in cherishing the dis- 
 position which is beginning to prevail, to allow 
 every proposed law to be judged of fairly 
 and impartially by its own merits. What por- 
 tion of reverence for the old law still exists, 
 does not flow from a predilection in its fa- 
 >tour merely because it is the old law of the 
 country, but because under that old law the 
 people of the country have long lived secure 
 and happy. That capital felonies were enacted 
 frequently without discussion, is true, and some- 
 times without much necessity, is to be regret- 
 ted. Whenever this last was the case the evil 
 ought to be corrected ; the first may have 
 been no evil at all. The understanding of past 
 ages ought not to be measured by the loquacity 
 of the present, and there has probably been 
 more debating about the Catholic claims alone, 
 than about half the laws in the Statute book from 
 the time of King John to the end of William III. 
 A written law is neither better or worse be- 
 cause it was passed with or without debate ; 
 and though criminal laws may have been occa- 
 sionally overlooked in their progress, there is 
 no reason to conclude that those by which the
 
 0\ Till-: CUI.MINAI. LAW. 326 
 
 lives of individuals have been actually taken 
 away, were enacted lijL^htly, or that any con- 
 siderable number have been sufiered to remain 
 in Ibrce which were not imaj^nned to be bene- 
 ficial. In any way in which our criminal code 
 as actually administered can be viewed, it is 
 doing it great injustice ever to put it on a foot- 
 ing with that of Alfred, the Conqueror, or 
 Rufus. Whatever the Normans in sorrow or 
 sickness may have said, or the anticipating 
 genius of Alfred wished to accomplish, it is im- 
 possible, without feelings of gratitude, to con- 
 trast the penal institutions of our own day, 
 with those uncivilized times, when the most 
 atrocious crimes were expiated by the payment 
 of a sum of money to the king, the lord, or rela- 
 tives of the injured party; and when pubhc 
 order was maintained by a rigour of police, 
 which checked the exercise of the offices of 
 kindness which were then the most necessary, 
 and at present would amount to an interdict of 
 all social intercourse. On this point we may 
 safely appeal to the opinion of those foreigners 
 of rank and intelligence, who are said to be 
 struck with the frequency of crimes in this 
 country, and the inefficiency of its laws to re- 
 press them. It is allowed that nothing is enti- 
 tled to more strict attention than the obser-
 
 326 0\' THE CRIMJNAL LAW. 
 
 rations made by well-informed strangers upon 
 the laws and institutions of the states through 
 which they travel. But those whose opinions 
 are most valuable are usually the least forward 
 to deliver them, while the opinions themselves 
 are often the least decided when they come 
 to be delivered. If Englishmen, who are usually 
 neither deficient in knowledge nor acuteness, 
 are frequently thought to be too lavish in praise 
 of what they left at home, as well as precipi- 
 tate in blaming what they see abroad ; it is as 
 certain that foreigners though enjoying both 
 rank and information are possessed of no pri- 
 vilege which protects them from falling into 
 similar mistakes. Without venturing to reflect 
 either upon their candour or understanding, 
 it is possible that many of those who have been 
 struck with the multitude of crimes and severity 
 of Criminal Laws in England, may neither be 
 accurately informed of the number of them in 
 their own, or have sufficiently reflected upon 
 the peculiar causes by which they are engen- 
 dered in this. 
 
 In the most advanced stage of civilization, 
 and with a crowded and commercial population, 
 it is a vain illusion to fancy that crimes will 
 ever be of rare occurrence. While a just esti- 
 mate is formed of the numberless blessings
 
 ON THE CRIMINAL LAW. 327 
 
 which trade and manufactures spread around 
 them, it is impossible on the other hand to 
 cast a retrospective glance upon the vice and 
 misery which eventually follow in their train, 
 without being surprised that every act should be 
 supposed to bear the stamp of wisdom which 
 promises to be in any way conducive to their 
 increase and multiplication. Where this political 
 state of things exists, crimes have invariably 
 been found to be one of its consequences, and 
 all that can be achieved is to assuage an evil 
 which it is impossible to eradicate. Equal 
 government, civil and religious instruction, the 
 prevention of all Hagrant violations of decency 
 and good order, and encouragement to discharge 
 conscientiously the various duties of life, are 
 unquestionably the chief sources from which 
 assistance is to be expected. Without their 
 aid the best criminal laws which can be devised 
 will be but of little avail. Still however it re- 
 mains a matter of the last importance, to dis- 
 cover what laws are calculated to co-operate 
 most effectually with these means, in reducing 
 crimes to the lowest possible amount both in 
 number and enormity. The difficulty of the 
 subject is so great, that it will create doubt and 
 perplexity in the strongest minds that are can- 
 didly applied to its consideration. I am much
 
 328 oTsr THE criminal law. 
 
 inclined to believe, however it will be found 
 after an examination of all the facts and ar- 
 guments which can be brought to bear upon 
 it, that crimes cannot be repressed without a 
 considerable degree of severity, and without 
 the temperate and steady application of ca- 
 pital punishment to a considerable number of 
 those which are committed both with violence 
 and without it. It is of much consequence 
 that this application should be steady as well 
 as temperate. Extensive discretion not only 
 must, but ought to be given to those who ad- 
 minister criminal law, but one would wish if it 
 be possible to see it laid under somewhat 
 stricter limitations than are in this country now 
 imposed upon it. It should not depend upon 
 accident, or the temper or private opinions of 
 the judges of assize, what character the law 
 shall assume; and irregularities in the execu- 
 tion of it are observable in the official returns 
 of the different circuits, which cannot be de- 
 nied to be inconsistent with the equal dis- 
 tribution of justice. Subject to the modifica- 
 tions which have now been mentioned, capital 
 punishment seems to me the most invariable 
 and efficacious of all those to which recourse 
 can be had for the repression of offences. 
 Many now think otherwise. They believe that
 
 ox THE CRIMINAL LAW. 329 
 
 crimes will be most effectually diminished, by 
 promoting to the utmost of their power, mitiga- 
 tion of punishment, prosecution of criminals, 
 and their reformation afterwards. There are 
 formidable objections to each step of this pro- 
 posed system. Though the extreme mitigation 
 of criminal laws would induce some to prose- 
 cute, it would indispose so many others to 
 undergo the trouble and expense of prose- 
 cution, that it may be questioned whether it 
 would have the strongest tendency to secure 
 impunity or detection. This would be suffi- 
 ciently unfortunate. Should extreme mitiga- 
 tion have that effect upon prosecutors which 
 is anticipated from it, that effect would per- 
 haps be fully as much to be deprecated. Un- 
 relenting and indiscriminate prosecution for all 
 offences without reference to their degree, the 
 temptation, situation of the parties, and the 
 other circumstances which may be connected 
 with the case, cannot be contemplated without 
 the deepest apprehension. Let the charitable 
 and beneficent say and do all they can, trial and 
 condemnation will be found in general estima- 
 tion to leave a stain uj)on the character, which 
 neither subsequent good conduct nor reforma- 
 tion can remove ; and the excessive multipli- 
 cation of convicted criminals of whatever order
 
 330 ON THE CRIMINAL LAW. 
 
 or description, instead of affording any security 
 that fewer persons would be disposed to com- 
 mit the like crimes in future, would only render 
 the country odious and degraded in its own 
 eyes, as well as those of surrounding nations. 
 It is the dread of this result, and not any satis- 
 faction which is derived from the sufferings 
 of the guilty, which renders it so extremely 
 doubtful whether this extreme mitigation of 
 punishment and activity of prosecution would 
 not prove more repulsive in the issue, than the 
 course of proceeding which they are intended 
 to supersede. Lord Hale desires " in matter^ 
 " criminal to remember, that though my nature 
 " may move me to pity, that there is also a pity 
 "which is due to my country;" and if the 
 feelings were divulged which rest unrevealed 
 in the bosoms of those who advise or superin- 
 tend what may be termed an austere adminis- 
 tration of criminal law, it might be found that 
 they were neither less kind nor compassionate 
 than those by whom they have sometimes been 
 unjustly stigmatized as illiberal and unmerciful. 
 The extraordinary attention now paid to re- 
 formation corresponds with the desired miti- 
 gation of punishment and extension of prose- 
 cution. Whether the reasons are well founded 
 or not, which have been given in a preceding
 
 ON THE CRIMINAL LAW. 331 
 
 part of this inciuiry, for supposiiify, that refor- 
 mation neither has yet been nor ever will be 
 so successful as its proselytes expect, there 
 can be no hesitation in admitting, that it never 
 can be carried too far, provided always it is 
 kept subordinate to prevention. It should 
 never be forgotten, that prevention is the chief 
 end of all penal law, and unless the punish- 
 ment which reforms, is calculated to deter 
 also, let reformation prosper as it may, crimes 
 will increase and a sense of shame diminish, 
 the easy transition from evil courses to repent- 
 ance will cause the bounds of separation be- 
 tween the innocent and the guilty imperceptibly 
 to disappear, and though the morality of prisons 
 and penitentiaries may be improved, that of 
 the whole community will rapidly and con- 
 stantly decline. It is a strong though per- 
 haps mistaken persuasion that this is the ten- 
 dency of the extreme mitigation of punishment, 
 indiscriminate prosecution, and universal re- 
 formation, which is now aimed at, which makes 
 me solicitous that the legislature should be 
 slow to sacrifice the safety of the body politic 
 to the supposed interests of its most corrupt 
 individual members. ' Ad res])ublicas firman- 
 ' das, et ad stabiliendas vires, sanandas po- 
 * pulos, omnis nostra pergit oratio. Quocirca
 
 332 ON THE CRIMINAL LAW. 
 
 ' vereor committere, ut non bene provisa et 
 ' diligenter explorata principia ponantur ; nee 
 ' tamen ut omnibus probentur (nam id fieri non 
 ' potest) sed ut iis, qui omnia recta atque 
 * honesta per se expetenda duxerunt, et aut 
 ' nihil omnino in bonis numerandum, nisi quod 
 ' per seipsum laudabile esset, aut certe nullum 
 ' habendum magnum bonum, nisi quod vere 
 ' laudari sua sponte posset.'— Cicero de Legibus, 
 cap. 13. 
 
 FINIS. 
 
 London : Printed bj C. Roworth, Bell Y'ard, Temple Bar.
 
 UNIVERSITY OF CALIFORNIA LIBRARY 
 
 Los Angeles 
 
 This book is DUE on the last date stamped below. 
 
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 LAWJLIdRARY 
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