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which have been recently introduced into the criminal law of England. All our knowledge of these new enactments is derived from the work before us, to the learned and diligent author of which we acknowledge ourselves much indebted.
It is a melancholy truth,' said Sir William Blackstone, in 1765, 'that among the variety of actions which men are daily liable to commit, no less than one hundred and sixty have been declared by act of parliament to be felonies without benefit of clergy; or, in other words, to be worthy of instant death.' 4 Com. 18. And Lord Holland, in a debate in the House of Lords, May 30, 1810, having quoted the passage, observes, •If the list of those added since Mr. Justice Blackstone's computation, were taken into account, I almost fear it would amount to nearly double that number. Why, my Lords, you have upon your table, relating merely to the revenues of the country, (I may not be rightly informed as to the precise number, but I state the number for the sake of argument) a list of no less than seventy-five crimes, which are punished with death.' “You happen now to have a pretty accurate return of crimes of this nature on your table. There is a list not only of the number of persons prosecuted, but of the number of persons convicted under these laws. You will find, that there are about sixty-one crimes committed (in one year) which are punishable with death; but, extraordinary to relate, there are only twenty-six out of the sixty-one, against whom prosecutions have been instituted.'
Not only was the number of capital crimes very great, but offences were declared to be so, which were exceedingly small compared with the penalty. From the year 1565 to 1808, the crime of privately stealing from the person of another, property to the value of twelve pence, was a capital felony without benefit of clergy. Although this offence excludes the idea of force on the part of the offender, and knowledge at the time on the part of the sufferer, it was yet placed, as to its punishment, on a level with highway robbery. 8 Eliz. c. 4.
By the acts of 10 and 11 W. III, 12 Anne, and 24 Geo. II. the crimes of stealing privately in a shop, goods of the value of five shillings, or in a dwelling house, or on board a vessel in a navigable river, property of the value of five shillings, were made capital felonies; thus making these offences equal to burglary, showing the little estimation of human life, and serving to prove the justice of the complaint of Sir H. Spel
man, that although all things had, since the original foundation of the English law, upon this head, in the time of the Saxon monarchy, extraordinarily increased in price, yet the life of man was daily growing cheaper, by permitting it to be forfeited for the peculation of the same sum for which it had been forfeited in the reign of the Saxons.'
The punishment of death should be inflicted only when the public safety requires it; and this may be, when the individual cannot be restrained by a less punishment, or where the terror of the example is absolutely required to prevent the commission of actions which are destructive to society. The motion to repeal the laws to which we have already alluded, was made by that most eminent civilian and statesman, Sir Samuel Romilly, and it finally prevailed, though in opposition to the unanimous opinion of the twelve judges of England, expressed by Lord Ellenborough in the house of lords, which delayed for some years, but could not finally prevent, the triumph of reason and humanity.
The great question was, whether it was better, that the extremity of punishment should be enacted, leaving it uncertain whether it would be executed; or whether, at the discretion of the judge, it might not be remitted for one of comparative leniency.
In a debate in the House of Commons on this subject, May 18, 1808, Sir Samuel Romilly stated, “that from returns which were to be found in the Secretary of State's Office, it appeared that in the year 1805, there were three hundred and fifty persons who received sentence of death, and of whom only sixty-eight were executed, not quite a fifth part of the number; in the year 1806, three hundred and twenty-five received sentence of death, of whom fifty-seven were executed; and in 1807, the number was three hundred and forty-three, of whom there were executed sixty-three. If we deduct the number of those who receive sentence of death for crimes, for which pardon is never, or very rarely, granted, and take the number of those who are convicted of felonies, which have been made capital for some circumstances which are not in truth circumstances of aggravation, perhaps it will be found, that of twenty persons condemned to die, only one suffers death. So that it has been confessed from the seat of judgment, that though the law exists in theory, it had been almost
abrogated in practice by the acuteness of judges, the humanity of juries, and the
clemency of the crown. "By the practice on this subject, the crown had the painful duty imposed on it, of selecting those upon whom the judgment of law should be executed. In London and Middlesex, this is done by the privy council, but upon all the circuits this duty devolves upon the different judges of assize; and is felt by them to be the most painful of their duties. No rules are laid down to govern them in the discharge of it, but they were left to their own discretion.'(a)
It is undoubtedly necessary to intrust to judges a discretion to proportion the gradations of a certain sort of punishment to the different gradations of the same crime; but in the punishment of death there is not any gradation. Certainly the discretion of the judge should not extend to take the life of a criminal, for thereby it might be left uncertain, whether the sufferer were executed for the offence which he had committed, or for some other cause; as perhaps for his bad character prior to its commission. In those few cases in which life is to be forfeited, the law should be clear, discriminatory, and decisive, and the less that is left to the arbitrary will of the judge the better.' Such a discretion is contrary to the genius of a free state, which is governed by settled rules, deliberately framed, and impartially executed. The prerogative of mercy properly belongs to the supreme executive power, to temper the occasional severity of the law, and to correct the mistakes which will sometimes occur in its administration; but even there it should be exercised most rarely, and only in such cases, as may tend to make the law itself and those who administer it, more reverenced.
To strive to continue in force statutes, which were found by long experience to be in opposition to the sentiments of the nation, and which neither prosecutors, juries, nor even the judges themselves would execute, was a strange system ; and yet Lord Ellenborough insisted, in his speech on the subject, that it was useful, by the fear of death, to deter inen from the offence of privately stealing; and he styled the act, which was introduced by Sir Samuel Romilly to repeal that bloody statute, and to fix a mild and proportionate punishment to the offence, “a speculative mode of legislating upon humanity;'(6) so much more easy is it even for a great man, when engaged
(a) See the debate in 2 Montagu on Punishment of Death, 146. (b) 2 Montagu on Punishment of Death, 289.
upon the wrong side of a question, to indulge in a vain flourish of words, than to assign a good reason. But the spirit of humanity prevailed. We find from Mr. Collyer's book, that the number of capital offences has been already greatly diminished. Whether the code is not still of a character too sanguinary, is a question for the wise and conscientious legislators of England. Enough, however, has been done. to show that the rights of humanity are no longer to be utterly disregarded in fixing the measure of punishment.
No person is now liable to suffer death, unless for some felony, which was excluded from the benefit of clergy before or on the first day of the session of the parliament, which was holden in the seventh and eighth years of the present king.(a) This statute abolishes the benefit of clergy, with respect to persons convicted of felony. By the 29th chapter of the same session, the punishment of death is appointed only for certain larcenies attended with circumstances of great aggravation; as breaking and entering any dwelling house, stealing any property in any dwelling house, any person therein being put in fear; or stealing in any dwelling house to the value of £5. And now, no building but a dwelling house, or a building connected therewith, can be the subject of burglary, either by virtue of that statute or at common law. It must be described, in the indictment, as the dwelling house of that person who has the independent and exclusive occupation of it, and usually sleeps there. But to bring a case within the meaning of the statute, as it regards stealing in a dwelling house, it is necessary that the goods should be under the protection of the house, although it is not necessary that the goods should belong to the owner of the house ; for even he would incur the penalty by stealing the goods of an inmate or of a lodger in his family. No building is deemed to be part of a dwelling for the commission of burglary, unless there shall be a communication between such building and dwelling house, either immediate or by means of a covered and enclosed passage leading from one to the other. To break and enter any building not privileged as a dwelling house, but within the curtilage thereof,(6) and stealing therein, and to break and enter a shop and to steal in the same, are now considered as less offences, and are punished
(a) 7 & 8 Geo. IV. c. 28, s. 7.
(b) A curtilage is a garden, yard, field, or piece of void ground, lying near and belonging to the messuage.
Terms de la Ley.
with transportation beyond seas for life, or for not less than seven years, or by imprisonment not exceeding four years.
It is still a capital felony and punishable with death, maliciously and unlawfully to set fire to any mine of coal or cannal coal,(a) also to set fire to, or in any wise destroy any ship or vessel, whether the same be complete or in an unfinished state; or to set fire to, cast away, or in any wise destroy any ship or vessel, with intent thereby to prejudice any owner of the same, or of any goods on board, or any underwriter thereon; also unlawfully and maliciously to set fire to any stack of corn, grain, pulse, hay, or wood. 7 & 8 Geo. IV. c. 30.
It is certainly a fault in legislation to subject offences, which are evidently unequal in themselves, to the same measure of punishment, especially to the greatest. Things unequal in themselves can never be made equal to each other, even by act of parliament. Excessive rigor in punishment will cast an odium upon the law, and will tend to secure impunity to offenders, by the almost invincible reluctance of the community to aid in its execution.
By the 7 & 8 Geo. IV. c. 29, the distinction between grand and petty larceny is abolished, and every larceny, whatever be the value of the property stolen, is deemed to be of the same nature and subject to the same incidents, in all respects, as grand larceny was before that act.
For simple larceny the offender is now liable, at discretion, to be transported beyond the seas, or to imprisonment, and if a male to be publicly or privately whipped, or the court may sentence the offender to be imprisoned and kept to hard labor in the common jail or house of correction, and also at discretion to be kept in solitary confinement.
Persons convicted of a felony, pot punishable with death, and for which no specific punishment is provided, are liable,
(a)' In the return home from Lancaster (A. D. 1676) his lordship took all the advantage he could of seeing great towns and places of note.
He stayed some days with Sir Roger Bradshaw, whose lordship (estate) is famous for yielding the cannal (or candle) coal. It is so termed, as I guess, because the manufacturers in that country use no candle, but work by the light of their coal fire. The property of it is to burn and flame till it is all consumed, without leaving a cinder. It is lighted by a candle like amber and the grate stands not against the back of a large chimney, as common grates; but in the middle, and the folk sit about it, working or merrymaking. His lordship saw the pit, where vast piles of that coal were raised; and it is pity the place wants water carriage; else, London would be, in the better part, served with it.' North’s Life of the Lord Keeper Guilford, Vol. 1. p. 294.