has always been the practice, when any particular species of robbery becomes prevalent and common, to endeavour its suppression by capital denunciations. Thus one generation of malefactors is commonly cut off, and their successors are frighted into new expedients; the art of thievery is augmented with greater variety of fraud, and subtilized to higher degrees of dexterity, and more occult methods of conveyance. The law then renews the pursuit in the heat of anger, and overtakes the offender again with death. By this practice capital inflictions are multiplied, and crimes very different in their degrees of enormity are equally subjected to the severest punishment that man has the power of inflicting upon ."* The conduct of our legislators in this respect may remind us of the learned physician in Gil Blas, who believed that the efficacy of a prescription must increase with the quantity of the dose. Nor were these inhuman enactments a dead letter. When Mirabeau was in England, he asked a friend, with whom he was dining, if it were true that twenty young men had been executed that morning at Newgate. Upon being told that there was no reason to doubt it, he exclaimed, "The English are the most merciless people I ever heard or read of." Within a few years, eight men were executed together, in the neighbourhood of this town, for offences unattended with bloodshed or violence. man. Sir William Blackstone declares that "so dreadful a list, instead of diminishing, increases the number of offenders. The injured," says he, "through compassion, will often forbear to prosecute; juries, through compassion, will sometimes forget their oaths, and either acquit the guilty or mitigate the nature of the offence." From a number of cases before me I select two, as strikingly illustrative of the natural disinclination of juries to execute laws unreasonably severe. A woman was tried in 1807 for stealing a bank note of the value of ten pounds, and the fact was proved; and yet the jury, with the approbation of the judge, returned a verdict guilty of stealing to the amount of less than forty shillings. In the sessions papers 1808 is recorded the case of an apprentice to a lapidary, tried before Mr. Justice Lawrence, for stealing two bills of exchange, value ten pounds each, and eight bank notes, value ten pounds each; and though the facts were clearly proved the jury found him guilty of stealing to the value of thirty-nine shillings. Before various parliamentary committees it has been proved, in the * Rambler, No. 114. most satisfactory manner, that the unjust severity of the laws totally defeated their purpose and rendered them inoperative. The effect of a mitigation of the excessive rigour of the law has been, to remove the scruples of prosecutors, witnesses, and jurors. The late Recorder of London, before a committee of the House of Commons, stated that one cause of the increase of crime was the repeal of the capital punishment from the privately stealing from the person; "that offence," adds he, " has increased beyond conception." Lord Eldon, in a debate on the 2nd of April, 1813, whether stealing to the amount of five shillings privately from a shop should be punishable by death, declared his conviction that "the house never gave its concurrence to a more mischievous bill than that which altered the law as to the crime of privately stealing from the person, as may be seen in the increase of that crime since the period of the passing of the act repealing the capital part of the punishment." While I would employ the strongest language in reprehension of the inhuman tendency and object of this testimony, I may admit its accuracy, and avail myself of it for a different and legitimate purpose. The necessary inference from it is, that capital punishment prevented prosecution, but assuredly not that the crime itself had increased: that compassion led to connivance and compromise of crime. The execution of Fauntleroy, whose punishment would have been in accordance with public sympathy if he had been treated as a swindler, excited general commiseration, and accelerated the abolition of capital punishment for the offence of forgery. A brief retrospect of the history of criminal legislation in this country within the last thirty years, will equally lead to the conclusion that prosecutions have been encouraged in numberless instances where the parties would otherwise have declined to assist in taking away human life. The darkness in which the barbarous legislation of former times originated, for a long period interrupted only by fitful and intermittent meteors, was at length exposed to a more steady light. A suc cession of illustrious men successfully evoked the dormant spirit of humanity; and the influence of their exertions was manifested in a more lenient administration of the laws. But it was inconsistent with the growing intelligence of the times that the life of man, and the execution or suspension of the laws, should depend upon the tempers and opinions-often various and contradictory, if not sometimes capricious of the individuals appointed to administer them. Public opinion, under the able leadership of Sir Samuel Romilly, was first practically brought to operate upon the legislature in 1808, when the repeal was procured of the act of parliament which made privately stealing from the person a capital offence [48th Geo. III, c. 129]; but it was not until after many unsuccessful struggles that in the year 1820 [1st Geo. IV, c. 117], the consent of the legislature could be obtained to repeal the laws which made the offences of privately stealing in a shop goods of the value of five shillings, or in a dwelling house, or on board a vessel in a navigable river, of the value of forty shillings, punishable with death [1st Geo. IV, c. 115, 116]. Several other capital felonies were also repealed at the same time; and a stop was put to the creation of new capital felonies. The number of executions continued progressively to decrease; and experience proved alike the safety and the efficacy of the change. Still however, innovation proceeded so slowly that even in 1827, when the criminal laws were consolidated and amended, the only alteration made as to capital felonies was to raise the sum which constituted larceny in a dwelling house capital from forty shillings to five pounds In 1832 capital punishment was abolished in regard to the stealing of horses, cattle, and sheep; larceny, to the amount of five pounds in a dwelling house; coining and forgery, except of wills, and powers of attorney to transfer stock: in 1833, for house-breaking; in 1834 for returning from transportation; and in 1835 for sacrilege, and letter stealing by the servants of the post office. It is the glory of the present reign that by one of its first legislative acts, nearly all the numerous remaining capital felonies were swept away, leaving only about twelve offences, some of them of very unfrequent occurrence, now punishable with the extreme penalty of death. It is a fitting sequel to this brief historical outline to add that experience, so far as its results have been ascertained, has verified the anticipations of the enlightened men who so long asserted-against the sneers of the sticklers of those days for the wisdom of our ancestors—that the severities of penal justice are most effective for their proper end, when moderated by the temperaments of equity and humanity. In fine, the late parliamentary returns, including those which have been just published, (which latter are framed with a particularity and minuteness, hitherto unknown in this country), establish the gratifying facts, that the increase of crime which has of late years taken place, is chiefly in larceny and other offences of inferior enormity-that in the more atrocious offences there has been a considerable decrease-that the increase of crime in general has 28 VOL. X., No. XXIX. been materially checked, and that even in the application of the substituted secondary punishments, it has seldom been necessary to inflict the full maximum amount of penalty. To complete this survey, it is only necessary to add, that the ratio of offenders to population is not greater in England than in the neighbouring kingdom of France. I think I have satisfactorily made good, by proof, my several points that the fluctuations in the relative number of convictions and acquittals are explicable by the peculiarities of our institutions and practice, and by the fusion of old opinions and laws into forms more accordant with justice and social sympathy-that, when all circumstances and qualifications are taken into account, the apparent increase of crime exhibits no anomaly to our national disparagementand that experience has amply confirmed the wisdom and propriety of the great changes which public opinion has forced upon the legis lative adoption in regard to criminal jurisprudence. Would that, in other respects, the documents referred to afforded equal reason for gratulation! But, alas! a threatening cloud obscures this part of the prospect. The parliamentary returns of 1838 exhibit the melancholy fact that of the 23,094 persons who, during that year, became inmates of our prisons, 7943 could neither read nor write at all, and 12,334 more could do so but imperfectly-in other words, not at all for any useful and important end. Equally lamentable and striking are the educational results deduced from the French tables. But the momentous importance of the subject demands more than an incidental and summary notice, such as our present limits allow; and I hope for an opportunity of considering this matter more in detail at some future time. If we consider how much of what is called education, in our schools for the poorer classes, is of a merely sectarian character, and how little of it consists of sound instruction in the principles of duty, and in useful knowledge available for the great ends of life; if we reflect upon the extent of our national wealth created by mechanic skill and manufacturing industry; if, moreover, we contemplate the condition of countless thousands of our infant and juvenile population, summoned by the stern and dismal matin bell, not to the natural enjoyments of childhood and youth, but to congregate, uninstructed and unwarned, amidst the corrupting associations of the factory and the mill-made "The senseless members of a vast machine, may it not be reasonably asserted that much of the crime we so loudly, if I must not say so inconsistently deplore, is chargeable upon ourselves, as the consequence of public supineness and remissness; Surely the philanthropist may adopt the language of one of our most amiable poets, as expressive of his own fervent aspiration : "Oh, banish far such wisdom as condemns Fixed in his soul so early and so deep, Without his own consent, or knowledge fixed !" - WORDSWORTH. OBSERVATIONS ON THE ORIGIN AND PROGRESS OF ENGLISH LIBERTY.* WHILST the martial forces of the other European monarchs were composed chiefly of the retinue of the great vassals, who obeyed but reluctantly, and only for a few weeks in the year, the royal summons to array themselves for the field, the English soldiery were composed, for the greater part, of a multitude of those petty landholders who enlisted themselves for no certain time, and followed the royal banner even far beyond their native island, and who decided more than once the fate of battle against the more numerous and imposing French troops, whose ranks were filled with the flower of the military order, with knights of high rank, and all the "pomp and circumstance of war." The judicial authority remained, as we have seen, until a comparatively modern period, in the immediate possession of the crown. Even that part of judicial practice and systematic distribution of justice which had grown into custom in England, was not, as in other European countries, divided and located in the various counties, for the purpose of general convenience and despatch, but emanated at once from the royal camp, and extended itself thence over all the districts of the kingdom, and to every subject of the king. The supreme rights of the liege lord, which in other countries, and in latter times, formed simply a protection to some anti * Continued from page 24. |