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ART. VII. Observations on the Criminal Law of England, as it

relates to Capital Punishments ; and on the Mode in which it is administered. By Sir SAMUEL ROMILLY. 8vo. pp. 76.

Cadell & Davies. London, 1810. WE E owe an apology, we believe, both to our readers, and to

the distinguished author of the work before us, for having so long delayed to enter upon an examination of the subject to which it relates. Various accidental circumstances, and several interruptions, of a nature alluded to in our last Number, have occurred to prevent us: Nor do we purpose, at this time, to attempt exhausting the topics which it presents for our consideration, but rather to introduce them, and lay the foundation of a series of discussions, which we may pursue at a future period. The honour of cooperating, in how humble soever a path, with such a man as Sir Samuel Romilly, in so grånd a cause, is sufficient to gratify a far loftier ambition than ours.

There is a tendency in man, connected with some of the leasť unamiable weaknesses of our nature, to reverence with an undue observance established practices and existing institutions, merely because they have been handed down through a succession of ages, and owe their origin to a period of society, in which, 'as Lord Bacon sagaciously remarks, the world was by so many ages younger and less experienced than it is in our own times. This feeling, while it resists the changes by which customs, and systems of polity, would otherwise be insensibly adapted to the changes which, in spite of us, are constantly going on in the circumstances of society, persuades us, at the same time, that there is a virtue in those very incongruities, rendered every day more apparent, between ancient arrangements and the state of things, wholly unforeseen by their authors, to which they are now applied. Thus, by a strange refinement of self-complacency, we ascribe to design, effects produced, not by human contrivance, but in spite of it,--nay, in counteraction of it, and actually give our ancestors credit for having intended that the same plan should work for some ages in one direction, and then for so many more in the very opposite. It is not easy to imagine, that any thing but the most entire thoughtlessness could, for a moment, so far supersede the evidence of facts, and the authority of common sense, as to impose such dreams upon our belief.

The most noted example of this delusion meets us in the great question of Reform, in both its branches. Broach the subject of Parliamentary Reform, and you are sure to be met with an inflated panegyric of the present system of representation,-contrived by the wisdom of our forefathers to attain the VOL. XIX. NO. 38.



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utmost degree of perfection, and unite freedom, stability, and tranquillity. After an invective against reformers, as mere speculatists and theorists, a piece of the purest theory, the most unreal fancy-work is presented, which you are desired to regard as the true mechanism of the constitution. It was fashioned, we are assured, upon the principle of virtual representation-or, at least, a mixture of real and virtual representation, for the purpose of forming an assemblage of persons of all classes, capacities and endowments--some actually and publicly delegated, and others chosen by themselves or a few private nomiDators. The system of Rotten boroughs is thus recommended as the ancient British constitution ;-and whoever is foolish enough to doubt, that our ancestors actually designed the stone walls of Gatton and Old Sarum to return as many members as Yorkshire and Lancashire, must be accused of innovation! Nor is this a statement merely held out in terrorem of rash speculators. We verily believe, that there are various worthy characters, in different parts of the country, who feel grateful to their forefathers for the wholesome and constitutional invention of decayed boroughs. In like manner, when you attack sinecures, or offices of which the progress of time has suppressed the duties, and angmented the emoluments, you are again charged with a newfangled disrespect for the wisdom of ages ;-as if, in the nature of things, a sinecure itself could possibly be other than an innovation ;—and as if our ancestors ever contemplated the uses ascribed to such places, any more than they foresaw the constitutional virtue of parliamentary elections by uninhabited towns. Thus, those changes which time is constantly making, are overlooked, --except it be for the purpose of imputing the abuses which steal upon the system, to wisdom and design; and all attempts to accommodate ourselves to those unavoidable changes---that is, to keep things, upon the whole, in their ancient and intended relation to each other--to maintain the order and arrangement contrived by our forefathers, are stigmatized as mere innovations.

The same delusion prevails, for want of but very flexion, respecting several parts of our judicial system. It may safely be asserted, that no law was ever made in the world with out the design of carrying it into effect; and yet nothing is more common than to hear the praises of that wise provision (as it is called) of the English law, by which severe punishments are denounced, while mild ones only are inflicted. When the severer statutes were passed, the manners of the age were different, The changes which have gradually softened the character and habits of the people, have made many of those laws a dead letter ; but we are taught to praise this discrepancy between the



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theory and practice of our jurisprudence, as if it were a positive good; and to venerate it as if it had been the result of design in our ancestors,—who, we must therefore suppose, made laws for the purpose of breaking them, or with the refined intention that they should be operative for a certain time, and afterwards cease to be executed.

The beautiful and interesting tract, now before us, begins with an exposition of the error to which we are now alluding: And the best proof of the mischiefs with which it is pregnant is to be found in the fact, that the most cruel laws have actually been executed, down to a comparatively recent period ; and that, in general, the relaxation of the criminal law has only taken place to a considerable degree during the last half century. Even the sanguinary act of Elizabeth, Sir Samuel Romilly observes, which made it a capital offence for any person above the age of fourteen, to associate for a month with gypsies, was executed in the reign of Charles the First ;-and Lord Hale mentions thirteen persons having, in his time, suffered death upon it at one assizes. Scanty and imperfect as are the materials for enabling us to trace the progress of the law, enough is known to convince us that no such refined plan can be discerned in former times, as that of leaving severe laws on the statute-book merely to terrify offenders, at the same time that they were relaxed in practice, or wholly suspended as to their execution, Sir John Fortescue tells us, that, in his day (in the reign of Henry VI), more persons were executed in England for robberies in one year, than in France in seven. Hollinshed states, that no less than 72,000 persons died by the hands of the executioner during the reign of Henry VIII-being at the rate of 2000 every year. In Queen Elizabeth's time, only 400 were executed yearly. But this relaxation, far from owing its origin to the Crown, draws forth the complaints of Lord Keeper Bacon, who tells the Parliament, that this ineffecţual enforcement of the laws is not the default of her Majesty, * who leaveth nothing

undone meet for her to do for the execution of them. · In more modern times, we have further details of this subject. Mr Howard has published" the Tables kept by Sir Stephen Janssen, by which it appears, that in seven years, ending 1756, there were convicted capitally in London and Middlesex 428of whom about three-fourths, or 306, were executed that from 1756 to 1764, 236 were convicted, and 139, or above onc half, executed ;-- from 1764 to 1772, 457 convicted, and 233, or little more than a half, executed. During the interval between 1772 and 1802, the accounts have not been published; but, from 1802 to 1808, the returns, printed by the Secretary of State's Ofice, afford very accurate information. In 1802, there were Cc 2


97 convicted, and 10 executed--being about one-tenth; and the average yearly number of convictions for the whole seven succeeding years, being about 75, the average number of executions was about 91, or somewhat more than one-eighth. Thus a change of a very material kind has taken place during the present reign. At the beginning of it there were more executions than pardons of persons capitally convicted. Now, there are about seven times as many pardoned as executed. Our author is far from censuring a change so full of humanity and wisdom; but he justly observes, that a stronger proof can hardly be required than these facts af-ford, that the present method of administering the law is not "a system maturely formed, and regularly established; but that - it is a practice which has gradually prevailed, as the laws have

become less adapted to the state of society in which we live.'

The speech, of which this pamphlet contains the substance, was delivered in the House of Commons, upon moving for leave to introduce bills to repeal the acts of 10. and 11. Will. III., 12. Ann, and 23. Geo. II., which make the crimes of stealing privately in a shop, goods to the value of five shillings, or in a dwelling-house, or on board a vessel in a navigable river, property of the value of forty shillings, capital felonies. The history of the enforcement of the two former statutes, affords the most striking illustration of the remarks with which we have been occupied. From Janssen's tables it appears, that in the period between 1749 and 1771, there were convicted for shoplifting and similar offences, 240 persons; and of these 109 were executed. The convictions for the seven years ending 1809,

do not appear in the returns published by the Secretary of State; but those returns show, that during that period, 1872 persons were committed to Newgate for privately stealing in shops and dwelling-houses; and that of these only one was executed. In

how many instances,' observes the author, such crimes have “ been committed, and the persons robbed have not proceeded

far against the offenders as even to have them committed to 6.prison : how many of the 1,872 thus committed were discharged, because those who had suffered by their crimes would not

appear to give evidence upon their triał: in how many cases • the witnesses who did appear withheld the evidence that they * could have gwen: and how numerous were the instances in

which juries found a compassionate verdict, in direct contra« diction to the plain facts clearly established before them, we * do not know; but that these evils must all have existed to a ' considerable degree, no man can doubt.'p. 11.

It is however maintained, that whatever may be the history of this discrepancy between the letter and the execution of our criminal laws, or to what cause soever it may be ascribed, great good



results from it; and the defence of it is summed up by its advocates in a single sentence. They contend, that it economizes punishment, and enables judges to deter men from crimes by slighter actual inflictions--the more severe denunciations of the law itself being ' a terror to evil doers.' Hence they maintain, that the law should be left as it is, for the sake of frightening the wicked; but that the discretion of executing it or not in cach instance should be vested in the judge.

This doctrine is sure to find supporters among various important classes ;-among the judges, whom it greatly flatters with ample, though it must be acknowledged most aweful, discretionary powers ;-among the higher and older practitioners of the law, who feel with the Bench which they have a near prospect of ascending ;-among the large body of persons afraid of all change, through igncrance or prejudice, and scared by a mere name, inasmuch as the Parliament scarcely ever holds a sitting without making some alteration in the law ;—and among refining and over-ingenious praisers of the existing establishments, who are gratified in discovering beauties and contrivances in the combined works of chance and time. For our own part, we can conceive no proposition more utterly untenable, if the subject be once examin d ; and none so sure indeed to fall before the most superficial inquiry into the merits of the question.

In the first place, it must be remembered, that the very origin and use of laws is placed in principles wholly repugnant to this doctrine,-namely, the advantage of having a fixed and known rule of conduct, the same by whomsoever it is administered, and applicable to all cases; so that those whom it is intended to regulate may be distinctly aware of what is required of them, and what penalty they incur for disobedience. If the plan contended for were defensible, how niuch better would it be to substitute judges for laws at once; or, at any rate, to prohibit certain actions, but without affixing any penalties to the commission of them; and to leave the apportionment of these, in every case, at the discretion of the magistrate! Indeed, as Sir Samuel Romilly has remarked, this arrangement would in many respects be much better. The discretion would then be exercised under a degree of responsibility which does not now attend it. If, says he,

a man were found guilty of having pilfered in a dwelling• house, property worth forty shillings, or in a shop that which

was of the value only of five shillings, with no one circumstance whatever of aggravation, what judge, whom the constitution had entrusted with an absolute discretion, and had left answerable only to public opinion for the exercise of it, would venture, for such a transgression, to inflict the punishment of death?

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