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of that power confers any right to exercise it, they avoid all the moral and intellectual difficulties of legislation by the one compendious process of human destruction. Confounding small and great crimes in the one sentence of blood, they stride over all distinctions of guilt to strike at the life of the offender, as the only certain way of eradicating the offence. Having given the name of Justice to a malignant power invested with the murderous attributes of revenge, they have no necessity for arming her with other weapons for the repression of crime than those of extermination..
Let us illustrate what we mean by the class of sanguinary laws made upon deliberate calculation, by a few instances. The offence of sheepstealing was not punishable capitally by the ancient common law of England, but, like other offences coming under the head of simple larcency, was punishable by a pecuniary ransom, which, it is supposed, went not to the Crown, like a modern fine, but in the way of restitution to the parties injured. In this respect, our Saxon law was conformable to the Mosaic, and also to the civil law, before it was adulterated by those cruel enactments which were among the proofs of the barbarous degeneracy of the Roman empire. It was after the Norman conquest, namely in the reign of Henry I., that a statute was first passed, making offences of simple larceny punishable with death. Notwithstanding that statute, kowever, all persons convicted of simple larceny who could read, were allowed the privilegium clericale, or benefit of clergy, at least for the first offence, which exempted them from capital punishment ; but those who could not read, and all women convicts, whether they could read or not, were liable to be sent to the scaffold. Thus the rule of right reason was inverted : ignorance was made an aggravation of guilt, and education a palliative of crime! Subsequently, the test of reading was abolished by law, and the benefit of clergy allowed to both sexes, upon praying the benefit of the statute. Now, sheep-stealing being an offence of simple larceny, remained a clergyable felony, that is, a felony not capital, until the fourteenth year of George II. ; when some sapient members of Par. liament, thinking sheep not sufficiently protected, as long as the sword of the law was not stained with the blood of him who committed theft of that species of property, had a bill passed through the Legislature to make the offence as penal as murder! The bill easily passed through both Houses ; for, unfortunately, in the British Parliament, the horror of innovation never arose unless when the alteration brought improvement. To adapt the institutions of the country to the advancing spirit of civi. lization, to purify what was corrupt, abolish what was irrational, and ameliorate what had the tincture of a barbarous origin, was what no man could attempt to do in the British Legislature without an outcry being raised against the “ dangers of innovation.” It was only when new laws were introduced to make what was bad worse, and to create additional obstacles to the amendment of social institutions, that they received a ready assent from the “ collective wisdom” of the nation. Hence it most frequently happened that bills which innovated upon the comparatively mild spirit of our ancient common law, by substituting san. guinary and revengeful punishments for those of a coercive or corrective nature, excited so little of the alarm of innovation, that they generally passed sub silentio, in almost empty Houses. One of the easiest things in the world was for a country gentleman, or a great manufacturer, or a dealer in paper-securities, or a director of some trading, perhaps bubble company, as the case might be, to obtain the favour from the Minister of the day, of a “ new felony without benefit of clergy." It is no wonder, then, that our Statute-book became almost one mass of sanguinary enactments, and the cry of judicial murder went up to Heaven, perpetually, from every corner of the land!
What were the arguments used by the original author of the law to make sheep-stealing punishable with death, we know not, nor, indeed, can we say that he found it necessary to use any ; but we presume if he did argue the matter at all, he observed upon the unavoidable exposure of this species of property to depredation, and the necessity of having an efficient protection, by placing every flock under the tutelary shadow of the gallows, and sacrificing a human life for every stolen sheep. But if we have no record of the arguments of that Draconic Legislator, who, to save sheep from being stolen, would slaughter mankind, we are disposed to believe we can quote something very like them from the more recent speech of a “philosophic” legislator, who, about two-and-twenty years ago, favoured the House of Commons with his own reasons for the perpetuation of that exterminating law. The occasion was the discussion of the first of the three bills brought in by the enlightened Romilly to rèpeal the penalty of death for the offences of privately stealing in a duelliny-house, or in a vessel on a canal or navigable river, to the amount of forty shillings, or stealing goods in a shop to the value of five shillings ! The legislator to whom we allude, is Mr. Davies Gilbert, sometime President of the Royal Society, which boasts to be the associated science of England. This philosopher, who never was betrayed into error by any unreflecting ardour of temperament, commenced his speech by obserying that he “ agreed with the honourable and learned gentleman [Sir Samuel Romilly] in many of his propositions, though he could not help thinking that the career of humanity, on which he had entered, was likely to be too extensive. If it had been more limited and confined, he should have been happy in contributing, to the best of his ability, in forwarding, instead of obstructing his object; but he now felt it his duty to resist the alteration proposed by the present bill.” Only think, reader, of the disciplined sensibilities of this philosopher being alarmed into resistance by the unlimited and dangerous benevolence that would make the stealing of forty shillings in one case, and five shillings in another, an offence no longer punishable by the forfeiture of human life! In support of his rational fears on this subject, he gave a scientific reason in the course of his harangue, which we will cite in his own words. “ As to the effects of certainty and severity of punishment, a proposition might be stated almost with mathematical precision,--that the prevention of crime, from this source, varies in the compound ratio of the seve. rity of the punishment, and the certainty of that punishment being inflicted ; and if this severity and certainty vary, according to some inverse law, with regard to each other, it is indisputable that the increase of severity may so far decrease the certainty as to diminish the aggregate upon which the prevention depends. Attention is always to be paid to this ratio ; but it may be safely adopted as a general principle that the punishment should increase with the difficulty of the detection. With out trespassing upon the time of the House, by entering into any minute application of this principle in any of the more heinous offences, I will confine myself to the single instance of sheep-stealing." Now come what, we presume, were precisely the reasons given by the author of the sanguinary law for making the offence capital. “ Considering the manner in which sheep are, and must be fed on extensive downs, their exposure to depredation, and the difficulty attendant upon the detection of this class of depredators; and considering how much the sustenance and clothing of the people depend upon this useful animal, I cannot but think that whatever alterations may be introduced in other parts of our law, sheep-stealing should still continue to be punished capitally.” Notwithstanding this learned dissertation in support of the policy of the sanguinary punishment for theft of this nature, the proved inefficacy of the statute, not merely to repress the crime, but to prevent its increase, and the outrage done to reason and humanity by the vin. dictive spirit of the law, have caused the public feeling to revolt against the penalty of blood. The sentence to which Princes and Parliaments must bow, has gone forth; and the legislation, founded upon false calculations of inhuman cupidity, and supported by the vicious refinements of sophisticated science, perishes in the masculine grasp of enlightened public opinion,
To say nothing of the Forgery bill, which has become law since we wrote on this subject before, and which sweeps off at once (with two exceptions, introduced by the Lords, of which more at another time) the capital punishment as applied to about forty distinct offences, Mr. Ewart's act alone gets rid of that punishment in reference to four separate classes of crime, of which sheep-stealing is one. When, to repeal only one of those, namely that relative to privately stealing in the dwelling-house to the amount of forty shillings, Romilly introduced a bill into the House of Commons, in the year 1810, to which we have above alluded, Mr. Spencer Perceval being then Prime Minister, it caused the most grave and solemn imputations of a revolutionary attempt upon the good old system of established justice to be levelled at that sincere, though truly cautious reformer, by the Lord Chancellor, the Chief Justice of the King's Bench, the placemen and minions of the Government of that day. Nothing, indeed, could exceed their surprise and alarm, on finding that he meant to follow up that bill, if successful, by some other measures for the amelioration and improvement of the eriminal law. On the division, the bill was lost by a majority of 35 to 33. Had the philosophic Mr. Davies Gilbert voted on the side of reason and humanity, the numbers would have been equal ; and had the metaphysical Mr. Wyndham voted on the same side, the conservators of the “ vested rights” of the executioner would have been beaten; but those “ intellectual ” gentlemen conceived that the career of improvement which Romilly commenced was likely to be too extensive, and so they stopped him, as soon as he had fully revealed his dangerous intentions of actually preventing the law from visiting with the same punishment the offender who stole forty shillings in the dwelling-house as it awarded to him who robbed the house and murdered the family!
Of the 35 who, on that occasion, opposed so small a reform of the sanguinary law, 22 were actually members of the existing Government, 'or holding office under it ; so that in reality the decision upon this ques. tion, not connected with politics, but being a question of public morals affecting human life, was procured by the direct influence of Government. The most powerful arguments of reason and experience in favour of the superior efficacy of humanized justice, were beaten only by the venal votes which official corruption called to the aid of legislative barbarity.
The House of Commons, however, which rejected the bill for repealing the penalty of death, as applied to the offence of stealing in the dwelling-house, did so far relent, touching the sanguinary system, as to pass the bill to repeal that punishment as applied to the offence of stealing in a shop, warehouse, &c., to the amount of five shillings. On that bill going up to the House of Lords, it had to encounter, in all its renewed vehemence of invective, the venerable terror of “innovation," which had been, pro hanc vice, hushed into repose in the Lower House. Lord Ellenborough, the then Chief Justice of the Court of King's Bench, led on the Conservatives " with a vigour and determination which clearly shewed his opinion of the deadly blow struck at our “ unrivalled constitution," by an attempt to abolish a statute which estimated the life of a human being at the Parliamentary price of five shillings! It was necessary that this attempt should be promptly and signally defeated, or there was no saying how far the “ standard of value” for human life, might, in course of time, be altered. As Mr. Canning, in opposing reform in Parliament, said he would take up his position within the lines of Gatton and Old Sarum, to defend the integrity of the constitution, so Lord Ellenborough entrenched himself behind the five-shilling shop-lifting act, to defend the integrity of our incomparable system of criminal justice. He said, on moving that the bill be read a second time that day six months, “ Though I feel it ungrateful to oppose the wishes of those who are attempting to introduce this innovation into the criminal law of the country, and with all my deference to them for the purity of their intentions, and giving them every credit for the ingenuity of their speculations, yet I trust your lordships will pause before you assent to an experiment pregnant with danger to the security of property, and before you repeal a statute which has been so long found ne.. cessary for public security, and which I am not conscious has produced the smallest injury to the merciful administration of justice.” Now the law was either executed, or it was not. If executed, is it not astonishing that any being in the shape of a man, not to speak of a senator and the chief judge of a civilized and Christian land, could venture to say in the face of the world, that to deliberately strangle a fellow-creature on the scaffold for stealing five shillings, was part and parcel of a merciful administration of justice? If, on the other hand, the law was not executed, why should an enactment, at the same time so barbarous and so ineffective, remain on the statute book a single moment, to testify against the Legislature for carrying its cruelty to so absurd an extreme as to render it impracticable ?
But to show more clearly what Lord Ellenborough meant by the “merciful administration of justice," let us take the instance of the application of this law, mentioned by the intelligent and humane Sir William Meredith. It cannot be too generally known at a time when ministers of the crown who had co-operated with Romilly, when circumstances were much more adverse to the reform of the criminal law than at present, profess a profound veneration for the opinions of judges, touching any proposed alterations of our penal jurisprudence. Speaking of the shop-lifting act, Sir William Meredith said, “ Under this act, one Mary Jones was executed, whose case I shall just mention. It was at the time when press-warrants were issued, on the alarm about Falkland Islands. The woman's husband was pressed, their goods seized for debt, and she, with tiro small children, turned into the streets a-begging. 'Tis a circumstance not to be forgotten that she was very young (under nineteen) and most remarkably handsome. She went to a linen-draper's shop, took some coarse linen off the counter, and slipped it under her Joak. The shopman saw her, and she laid it down. Her defence was, that she had lived in credit, and wanted for nothing, until a press-gang came and stole her husband from her ; but since then she had no bed to lie on, nothing to give her children to eat, and they were almost naked ;' and perhaps she might have done something wrong, for she hardly knew what she did. The parish officers testified to the truth of this story. But it seems there had been a good deal of shop-lifting about Ludgate. hill; an example was thought necessary ; and this woman was hanged for the comfort and satisfaction of some shopkeepers in Ludgate-street. When brought to receive sentence, she behaved in such a frantic manner as proved her mind to be in a distracted and desponding state; and the child was sucking at her breast when she set out for Tyburn gallows !” Here is an instance of what Lord Ellenborough, the Chief Justice of the Court of King's Bench, described, as “not being of the smallest injury to the merciful administration of justice !” Why, it was a scene more fit to be enacted among fiends than among beings whom God had endowed with the gift of reason, and whose reason he had further assisted by the light of a religion of mercy! Here the law creates the crime and then punishes it. The infamous law of impressment deprived the poor woman of her stay and protector. This law committed a greater robbery than that which can be committed upon a little property : it committed a robbery of the person. When the woman whom it made destitute of the honest means of subsistence for herself and children, impelled by the cries of nature, and the desperation of want, attempted to commit a paltry theft, the circumstances which drove her to it were left out of consideration. What the law of impressment had begun, the shop-lifting law completed. The one drove her of necessity into crime, the other strangled her on the scaffold, for yielding to the temptation : how affecting to see, in the horrors of her situation, the maternal feeling prevail over every other; and the child, the fatherless child, clasped to her bosom, while the friendless outcast victim of merciless oppression sustained its little life amid the expiring agonies of her own!
But of what degree of “hoar antiquity” was that statute, which, in the opinion of Lord Ellenborough, could not be repealed, in order to substitute one of a more moderate character, without causing a “dangerous innovation” upon the criminal law ? It had no existence before the reign of William III. ; that is, it had been a part of the law during a little more than a century out of the ten centuries during which the monarchy of England has endured. The offence had been punishable as a simple larceny, until this statute made it a capital crime. We need scarcely add that such a statute was, like most other of our sanguinary laws for offences against property, the result of that calculating and inhuman cupidity which accounted not human blood, nor even the immortal destinies of a living soul, of the least value when put in competition with a little pelf. It was, in short, one of those laws, which, in punishing a violation of the eighth commandment, was itself a violation of the sixth. For most assuredly the eternal decree, « Thou shalt do no murder” was addressed to man in his collective, as well as his individual capacity,—to princes and legislators, as well as to every human being subject to their dominion.