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to set out with the utmost exactitude and in the proper terminology the particular circumstances of the offence alleged, in order to determine precisely its legal character. For example, to say “killed” instead of “murdered ” (“murdravit”) the deceased, to omit or mis-state the prisoner's surname, or any of his Christian names, to prove facts different from those specified in the charge, although they might actually amount to the legal offence—to say, for instance, that the blow was given with the right hand when it was really given with the left—all these and other such minor matters involved what was termed a “variance,” which therefore vitiated the whole prosecution. And, what is more, the objection could be raised at any stage of the proceedings, even after the verdict had been brought in by the jury. But generally the accused was not permitted to see a copy of the indictment before the trial, so that he could hardly have recourse to any loopholes “until the maximum of sport and fees had been extracted from the case.” " Whilst a quick-witted prisoner might thus avail himself of errors of omission or of commission to frustrate his prosecutor, accused persons, on the other hand, unjustifiably suffered various disadvantages. If they were charged with any of the numerous capital offences, with the exception of treason, they were debarred from the services of counsel, unless some question of law arose which it was necessary to argue. Even Blackstone, who was not inclined to look on the existing criminal law with a critical eye, held there was no valid reason for withholding from a poor ignorant prisoner, whose life was at stake, the same legal assistance that was conceded in cases of petty trespass.” In course of time, however, this rule came to be slightly relaxed; so that the presiding judges in trials for felony might allow counsel to stand near the prisoner, instruct him what questions to ask, cross-examine the witness, but not address the court save on a legal point.” The witnesses for the defence (unlike those for the prosecution) could not be compelled to attend the trial and give evidence, if they refused to do so for any reason. Some of the rules of evidence were antiquated and oppressive. Owing to the stringent requirements regarding the administration of the oath, the evidence of Quakers and infidels could not be received at all. “Thus it was equally safe to rob an atheist or a Quaker when no one else was present, or to murder a Christian in the presence of an atheist or a Quaker.” ". Further, in contradistinction to the unduly protracted civil suits (notably those in Chancery), which proved solucrative to judges, officials, barristers, attorneys, and the Exchequer, criminal trials were hurried through, usually in a single day; in the former, worldly possessions were at stake and fees could be extracted, in the latter only a human life was concerned. “And wretches hang that jurymen may dine,” said the poet with much literal truth.” There was no consistency, no harmony, no method whatever in the legislation. The law was in theory one thing, and in practice it was often another. The infliction of punishments was to a large extent left to the arbitrary and capricious dis
* Sir R. K. Wilson, History of Modern English Law (London, 1875), p. 112.
* Cf. Commentaries, bk. iv, chap. xxvii.
* Ibid. Cf. Sir James F. Stephen, History of the Criminal Law (London, 1883), vol. i. p. 424.
|cretion of the judge, and was not definitely determined by the law; so that from circuit to circuit practices varied to an extra
ordinary degree, sometimes being marked by ferocious violence, at other times by unpardonable weakness. The punishments threatened by the law could not be more rigorous. The spas-\ modic prescription of measures of extreme severity and ferocity was evidently thought to be an effective panacea for the preventing or curing of the country's criminal ills. Many laws were laid down whose violation was actually disregarded. The somewhat indiscriminate classification of crimes into felonies and
misdemeanours, the outworn technical rules respecting “benefit of clergy
were fertile sources of abuse, evasion, and injustice. Innocent persons were liable to become the victims of an irrationally applied law; and the guilty could cherish a hope of impunity
—and very frequently were their hopes fulfilled. The existence
of a multiplicity of laws, and in many cases their inoperative character in practice, through the connivance of authorities at their breach, were facts mentioned by eulogists and apologists
alike as evidence of the mild nature of British government. ,
The prevailing confusion of thought, especially so in pre-Benthamite times, must have been great indeed, when conditions that amount to a veritable stultification of the whole criminal jurisprudence were actually proclaimed as a great benefit to the
.community. Oliver Goldsmith's observations in the Citizen of
World, published in 1760, that is some five years before the appearance of Blackstone's first volume of the Commentaries,
* Wilson, op. cit., p. IoI.
may well be regarded as representing the views of the average intelligent minds of the time. “There is scarcely an Englishman,” the cosmopolitan Chinaman is made to declare, “who does not, almost every day of his life, offend with impunity against some express law, and for which, in a certain conjuncture of circumstances, he would receive punishment. Gaming-houses, preaching at prohibited places, assembled crowds, nocturnal amusements, public shows, and a hundred other instances, are forbid, and frequented. These prohibitions are useful; though it be prudent in their magistrates, and happy for their people, that they are not enforced, and none but the venal and mercenary attempt to enforce them. The law in this case, like an indulgent parent, still keeps the rod, though the child is seldom corrected. Were those pardoned offences to rise into enormity, were they likely to obstruct the happiness of society, or endanger the state, it is then that justice would resume her terrors, and punish those faults she had so often overlooked with indulgence. It is to this ductility of the laws that an Englishman owes the freedom he enjoys, superior to others in a more popular government.” " - (We shall see later * that Paley's argument involved a similar fallacy.) A foreign observer, possessing a much keener eye and clearer understanding than either Goldsmith's or Paley's, thus comments on the severe laws in England for minor offences, and on their non-execution: “Cette loi n'est pas exécutée. L'usage est ou d’éluder la loi, ou de s'adresser au roi, pour qu'il change la peine. Presque partout les moeurs sont plus douces que les lois qui ont été faites dans les temps oil les moeurs étaient féroces. Il est singulier que l'Angleterre, où les premiers de la nation sont si éclairés, laisse subsister une si grande quantité de lois absurdes. Elles ne sont pas exécutées, il estvrai; mais elles forcent la nation à laisserá la puissance exécutrice le droit demodifier ou d'enfreindre la loi.” ” Further, whilst the malefactor could in many cases, \ with good reason, thus hope for impunity, the injured person was frequently obliged to forgo compensation. If the damage suffered by him resulted from the commission of a felony, he could not bring a civil action, until the offender was prosecuted and convicted—in which case the delinquent might be hanged and . his goods forfeited to the crown, so that a suit would be useless. * Citizen of the World, letter 1 (“An attempt to define what is meant by English liberty"); Works (London, 1854), vol. ii, p. 253.
* Cf. infra, essay on Romilly, chap. ii, sect. iii.
The number of capital offences was rapidly and indiscriminmately augmented. The English penal code appeared to be a |farrago of laws more sanguinary than those of the most benighted 4 country on the Continent. Before the Revolution the statute-book contained some fifty offences for which the capital penalty might be inflicted. In the reign of George II, 63 new ones were added. In 1770 the number was estimated in parliament at 154,” but a little earlier by Blackstone at 160. A few years later, Romilly observed in his Observations on a late publication entitled “Thoughts on Executive Justice ’’ (published 1786)—in which, as we shall see afterwards, he exposed some of the most striking anomalies of the criminal law—that the number had increased considerably in the sixteen years since the appearance of Blackstone's work. The same penalty of death was imposed, for example, on a man who stole a comparatively small sum of money or picked a pocket / to the value of twelvepence farthing, as on one who killed his parents, or on one who violated a defenceless girl and brutally , murdered her.” No wonder then that very often injured persons refrained from prosecuting, juries from convicting, and witnesses from testifying, in the case of the lesser offences. Not infrequently were verdicts brought in obviously contrary to the evidence. Juries must certainly have come to regard their oaths with careless levity, when, in their desire to avoid the infliction of death on a wretched prisoner, they found that twenty golden guineas stolen by him were worth only thirty-nine shillings! Attempts to obviate excessive severity led to a fatal habit of excessive indulgence. And where guilt was established, and the | capital sentence passed, it was in the great majority of cases not executed. We shall see these facts in detail in the later chapters devoted to Romilly, but for the present it will suffice to say that in the early part of the nineteenth century the proportion of executions to the number of capital sentences passed varied from a fifth to a ninth,” KThe legislature and the executive were evidently unmindful of the incontrovertible principle emphasised by Montesquieu and by other clear-sighted writers: “La sévérité excessive des lois en empêche l’exécution; quand la peine surpasse toute mesure, le public, par humanité, pré
* Cavendish Debates, ii, 12.
* For several other striking examples, see infra, on Romilly, in reference to his publication cited above, and to the bills introduced by him in the House of Commons.
• Cf. G. R. Porter, The Progress of the Nation, etc. (1851), p. 635.
férera souvent l'impunité.” %Apart from those who altogether
This punishment was actually carried out (for the last time) in the case of some of those convicted of participating in the rebellion of 1745; but it had long been more usual to remit all the sentence except the beheading and disposal of the head. The heads of traitors were set up over London Bridge. 2. Death in public by burning alive. This had been the punishment for heresy down to the reign of Charles II, and was still the legal punishment for treason when committed by a woman. The last instance is that of Elizabeth Gaunt, sentenced by Judge Jeffreys. 3. Death in public by hanging. This was the penalty assigned to the inordinate number of felonies already referred to. In the case of murder, the criminal's body, after execution, was liable to be dissected, under an act passed just before Blackstone wrote, for the benefit of anatomical science. Sometimes the body was hung in chains till it rotted, near the spot where the crime was committed. (Death could never be legally inflicted except in public.) 4. Mutilations of various kinds. These are included by Blackstone among the legal punishments, but they were practically obsolete. 5. Whipping, in public or private; and in both forms applicable to both sexes. 6. The pillory; which might be a form of popular ovation, or a punishment only a degree short of death, according to the temper of the bystanders. * Esprit des lois, liv. vi., chap. xiii. Cf. supra, on Beccaria, chap. ii.
* Taken from Sir R. K. Wilson, History of Modern English Law, pp. 61–63. For various illustrations see A. Andrews, The Eighteenth Century, pp. 269–305.