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ners and character of the nation, which are now so repugnant to the spirit of these laws, that it has become impossible to carry them into execution. · There probably never was a law made in this country which the legislature that passed it did not intend should be strictly enforced.-Even the Act of Queen Elizabeth, which made it a capital offence for any person above the age of fourteen to be found associacing for a month with persons calling themselves Egyptians, (the most barbarous statute, perhaps, that ever disgraced our criminal code,) was executed down to the reign of King Charles the first; and Lord Hale mentions 13 persons having in his time been executed upon it at one assizes. It is only in modern times that this relaxation of the law has taken place; . and only in the course of the present reign that it has taken place to a considerable degree.--If we look back to remote times, there is reason to believe that the laws were very rigidly executed. The materials, indeed, from which we can form any judgment on this subject, are extremely scanty ; for in this, as in other countries, historians, occupied with recording the actions of princes, the events of wars, and the negotiations of treaties; have seldom deigned to notice those facts from which can be best collected the state of morals of the people, and the degree of happiness which a nation has at any particular period enjoyed.—Sir John Fortescue, the chief justice, and afterwards the chancellor of Henry VI., in a very curious tract on absolute and limited monarchy, in which he draws a comparison between England and France ; says, that at that time more persons were executed in England for robberies in one year than in all France in seven. In the long · and sanguinary reign of Henry VIII. it is stated by Hollinshed that 72,000 persons died by the hands of the executioner; which is at the rate of 2,000 in every year. In the time of Queen Elizabeth, there appears to have been a great relaxation of the penal laws; but not on the part of the crown; and Sir Nicholas Bacon, the lord keeper, in an earnest complaint which he makes to parliament on the subject, says," it remains to see in whose default this is ;' and he adds, “ certain it is, that her Majesty leaveth nothing undone meet for her to do for the execution of laws;" and it is related, that in the course of her reign 400 persons were upon an average executed in a year...
These statements, however, it must be admitted, are extremely vague and uncertain ;- and it is not till about the middle of the last century that we have any accurate informa.. tion wbich can enable us to compare the number capitally convicted with the number executed.—Sir Stephen Theodore Janssen, who was chamberlain of London, preserved tables of the convicts at the Old Bailey and of the executions. These tables have been published by Mr. Howard, and they extend from 1749 to 1772. From them it appears, that in 1749, the whole number convicted capitally in London and Middlesex was 61, and the number executed 44 ; being above two-thirds. In 1750 there were convicted 84, and executed 56; exactly two-thirds. In 1751, convicted 85, executed 63 ; about threefourths. In the seven years which elapsed, from 1749 to 1756 inclusive, there were convicted 428, executed 306 : rather less than three-fourths. From 1756 10 1764, of 236 convicted, 199 were executed; being much more than half. From 1764 to 1772, 457 were convicted, and of these 235 were executed ; a little more than half. From this period to 1802 there has not been published any accurate statement on this subject. But from 1802 to 1808 inclusive, there bave been printed, under the direction of the Secretary of State for the Home Department, regular tables of the number of persons convicied capitally; and of those on whom the law has been executed ; and from these we find, that in London and Middlesex, the numbers are as follows;
Convicted. Executed. .
1803 :.: 81 ... 9 1 -9th
.. Total .. 528 67 rather more than 1-8th It appears, therefore, that at the commencement of the present reign, the number of convicts executed, exceeded the number of those who were pardoned ;-but that at the present time, the number pardoned very far exceeds the number of those who are executed. This lenity I am very far from censuring; on the contrary, I applaud the wisdom as well as
the humanity of it. If the law: were unremittingly executed, the evil would be still greater; and many more offenders would escape with full impunity : much fewer persons would be found to prosecute, witnesses would more frequently withhold the truth which they are sworn to speak, and juries would oftener in violation of their oaths acquit those who were manifestly guilty.—But a stronger proof can hardly be required than this comparison affords, that the present method of administering the law is not, as has been by some imagined, 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.
There is no instance in which this alteration in the mode of administering the law has been more remarkable, than in those of privately stealing in a shop or stable, goods of the value of five shillings; which is made punishable with death by the statute of 10 and 11 William III., and of stealing in a dwelling. house property of the value of forty shillings, for which the same punishment is appointed by the statute of 12 Ann; and which statutes it is now proposed to repeal. The exact numbers cannot, from any thing that has hitherto been pub: lished, be correctly, ascertained; but from Sir Stephen T. Janssen's tables it appears, that (after laying out of the calculation the numbers convicted of murder, burglary, highway robbery, forgery, coining, returning from transportation, and fraudulent bankruptcies,) there remain convicted at the Old Bailey of shop-lifting and other offences of the same nature, in the period from 1749 to 1771, 240 persons; and of those no less than 109 were executed.
What has been the number of persons convicted of those offences within the last seven years does not appear;-but from the tables published under the authority of the Secretary of State, we find that within that period there were committed to Newgate for trial, charged with the crime of stealing in dwelling-houses, 599 men and 414 women; and charged with the crime of shop-lifting, 506 men and 353 women; in all 1,872 persons; and of these only one was executed.
In how many instances such crimes have been committed, and the persons robbed have not proceeded so far against the offenders as even to have them committed to 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 trial : in how many cases the witnesses who did appear withheld the evidence that they could have given : and how numerous were the instances in which juries found a compassionate verdict, in direct contradiction 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. : Hers..?.. ni .
Notwithstanding these facts, however, and whether this mode of administering justice be the result of design or of accident; there are many persons who conceive that it is upon the whole wise and beneficial to the community. It cannot, therefore, but be useful to examine the arguments by which it is defended. Discussions on such subjects are always productive of good. They either lead to important improvements of the law, or they afford additional reasons for being satisfied with what is already established. . . .
• It is alleged by those who approve of the present practice, that the actions which fall under the cognizance of human laws are so varied by the circumstances which attend them; that if the punishment appointed by the law were invariably inflicted for the same species of crime, it must be too severe for the offence, with the extenuating circumstances which in some instances attend it; and it must in others fall far short of the moral guilt of the crime, with its accompanying aggravations :-that the only remedy for this, the only way in which it can be provided that the guilt and the punishment shall in all cases be commensurate, is to announce death as the appointed punishment; and to leave a wide discretion in the judge of relaxing that severity, and substituting a milder sentence in its place.
If this be a just view of the subject, it would render the system more perfect, if in no case specifick punishments were enacted; but it were always left to the judge, (after the guilt of the criminal had been ascertained,) to fix the punishment which he should suffer, from the severest allowed by our law to the slightest penalty which it knows :--and yet what Eng. lishman would not be alarmed at the idea of living under a law which was thus uncertain and unknown; and of being continually exposed to the arbitrary severity of a magistrate ? All men would be shocked at a law which should declare that the i offences of stealing in shops or dwelling-houses, or on board ships, property of the different values inentioned in the seve: .
ral statutes, should in general be punished with transportation; but that the King and his judges should have the power, under circumstances of great aggravation, (respecting which they should be the sole arbiters,) to order that the offender should suffer death ;--yet such is in practice the law of England. .
, In some respects, however, it would be far better that this ample and awful discretion should be formally vested in the judges; than that the present practice should obtain ; for it would then be executed under a degree of responsibility which does not now. belong to it. If 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 intrusted with an absolute discretion, and had left answerable only to públick opinion for the exercise of it ; would venture for such a transgression to inflict the punishment of death :-but if in such a case, the law having fixed the punishment, the judge merely suffers that law to take its course, and does not interpose to snatch the miserable victim from his fate ; who has a right to complain ?-A discretion to fix the doom of every convict, expressly given to the judges, would in all cases be most anxiously and scrupulously exercised; but appoint the punishment by law, and give the judge the power of remitting it, the case immediately assumes a very different complexion. A man is convicted of one of those larcenies made capital by law, and is besides a person of very bad character. It is not to such a man that mercy is to be extended; and, the sentence of the law denouncing death, a remission of it must be called by the name of mercy; the man, therefore, is hanged; but in truth it is not for his crime that he suffers death, but for the bad-ness of his reputation. Another man is suspected of a murder, of which there is not legal evidence to convict him; there is proof, however, of his having committed a larceny to the amount of forty shillings in a dwelling-house; and of that he is convicted. He, too, is not thought a fit object of clemency, and he is hanged; not for the crime of which he has been convicted, but for that of which he is only suspected. A third upon his trial for a capital larceny attempts to establish his · innocence by witnesses whom the jury disbelieve ; and he is left for execution, because he has greatly enhanced his guilt