Part 1 (2/2)

In vain do we boast of those liberties which are our birthright, if the vilest and most depraved part of the Community are suffered to deprive us of the privilege of travelling upon the highways, or of approaching the Capital in any direction after dark, without risk of being a.s.saulted, and robbed; and perhaps wounded or murdered.

In vain may we boast of the security which our Laws afford us, if we cannot lie down to rest in our habitations, without the dread of a burglary being committed, our property invaded, and our lives exposed to imminent danger before the approach of morning.

Imperfect must be either the plan or the execution, or both, of our Criminal Code, if crimes are found to increase; if the moral principle ceases to be a check upon a vast proportion of the lower ranks of the People; and if small thefts are known to prevail in such a degree, as to affect almost all ranks of the Community who have any property to lose, as often as opportunities occur, whereby pilfering in a little way can be effected without detection.

If, in addition to this, the peace of Society can, on every specious pretence, be disturbed by the licentious clamours or turbulent effusions arising from the ill-regulated pa.s.sions of vulgar life, surely it becomes an interesting inquiry, worthy the attention of every intelligent member of the Community, _from what source spring these numerous inconveniences; and where is a remedy to be found for so many acc.u.mulated evils_?

In developing the causes which have produced that want of security, which it is believed prevails in no other civilised country in so great a degree as in England, it will be necessary to examine how far the System of Criminal Jurisprudence has been, hitherto, applicable to the prevention of crimes.

If we look back to the measures pursued by our ancestors two centuries ago, and before that period, we shall find that many wholesome laws were made with a view to prevention, and to secure the good behaviour of persons likely to commit offences. Since that aera in our history, a different plan has been pursued. Few regulations have been established to restrain vice, or to render difficult the commission of crimes; while the Statute Books have been filled with numerous Laws, in many instances doubtfully expressed, and whose leading feature has generally been severe punishment. These circ.u.mstances, aided by the false mercy of Juries in cases of slight offences, have tended to let loose upon Society a body of criminal individuals, who under a better Police--an improved system of Legislation, and milder punishments,--might, after a correction in Penitentiary Houses, or employment in out-door labour, under proper restraints, have been restored to Society as useful members.

As the Laws are at present administered, it is a melancholy truth not to be contradicted, that the major part of the criminals who infest this Metropolis, although committed by magistrates for trial on very satisfactory proof, are returned upon the Public in vast numbers year after year; encouraged to renew their former practices, by the facility they experience in evading justice.

But this is not all:--The adroit Thief and Receiver, availing themselves of their pecuniary resources, often escape, from their knowledge of the tricks and devices which are practised, through the medium of disreputable pract.i.tioners of the Law; while the novices in delinquency generally suffer the punishment attached to conviction.

If, as is the case in some other countries, evidence were allowed to be received of the general character of persons, put upon their trial for offences, and the means by which they obtain their subsistence, so as to distinguish the old reputed Thief and Receiver from the novice in crimes, the minds of Jurymen would be often enlightened, to the furtherance of substantial justice; and a humane and proper distinction might be made between the young pupil of depravity, and the finished villain; as well in the measure of punishment, as in the distribution of mercy.

The severity of the punishment, which at present attaches to crimes regarded by mankind as of an inferior nature, and which affect property in a trivial manner, is also deserving the most serious attention. It is only necessary to be acquainted with the modern history of the _criminal prosecutions, trials, acquittals, and pardons in this country_, in order to be completely convinced that the progressive increase of delinquents, and the evils experienced by Society from the mult.i.tude of petty crimes, result in a great measure from this single circ.u.mstance.

It will scarcely be credited by those, whose habits of life do not permit them to enter into discussions of this sort, that by the Laws of England, there are above _one hundred and sixty_ different offences which subject the parties who are found guilty, to death without benefit of Clergy. This multiplicity of capital punishments must, in the nature of things, defeat those ends, the attainment of which ought to be the object of all Law, namely, _The Prevention of Crimes_.

In consequence of this severity, (to use the words of an admired Writer,) ”The injured, through compa.s.sion, will often forbear to prosecute: Juries, through compa.s.sion, will sometimes forget their oaths, and either acquit the guilty or mitigate the nature of the offence: and Judges, through compa.s.sion, will respite one half the convicts, and recommend them to Royal Mercy.”[2]

[Footnote 2: Blackstone's Commentaries.]

The Roman Empire never flourished so much as during the aera of the Portian Law, which abrogated the punishment of death for all offences whatsoever. When severe punishments and an incorrect Police were afterwards revived, the Empire fell.

It is not meant, however, to be insinuated that this would be, altogether, a proper system of Criminal Jurisprudence to be adopted in modern times.

In the present state of society it becomes indispensably necessary, that offences, which in their nature are highly injurious to the Public, and where no mode of prevention can be established, should be punished by the forfeiture of life; but these dreadful examples should be exhibited as seldom as possible: for while on the one hand, such punishments often defeat the ends of Justice, by their not being carried into execution; so on the other, by being often repeated, they lose their effect upon the minds of the People.[3]

[Footnote 3: Can that be thought a correct System of Jurisprudence, which inflicts the penalty of Death, for breaking down the mound of a fish-pond, whereby the fish may escape; or cutting down a fruit-tree in a garden or orchard; or stealing a handkerchief, or any trifle, privately from a person's pocket, above the value of 12d;--while a number of other crimes of much greater enormity, are only punished with Transportation and Imprisonment; and while the punishment of murder itself is, and can be, only Death; with a few circ.u.mstances of additional ignominy?]

However much we glory (and we ought to glory) in the general excellence of our Criminal Law, yet there is no truth more clear and obvious than this:--”That this code exhibits too much the appearance of a heterogeneous ma.s.s, concocted too often on the spur of the occasion (as Lord Bacon expresses it):--and frequently without that degree of accuracy which is the result of able and minute discussion, or a due attention to the revision of the existing laws; or how far their provisions bear upon new and acc.u.mulated statutes introduced into Parliament; often without either consideration or knowledge, and without those precautions which are always necessary, when laws are to be made which may affect the property, the liberty, and perhaps even the lives of thousands.”

Some steps have indeed, been taken in Parliament, since this work first appeared, towards a general revision of our Statute Law;[4] and which, it is hoped, will ere long be adopted. Whenever the time shall arrive that the existing laws, which form the present Criminal Code, shall be referred to able and intelligent men effectually to revise, consolidate, and adjust the whole, in a manner best suited to the present state of Society and Manners, the investigation will unquestionably excite no little wonder and astonishment.

[Footnote 4: See the ”Report from the Committee of the House of Commons on Temporary Laws;” May 13, 1796--and also the ”Report from the Committee for promulgation of the Statutes,” December 5, 1796; and the ”Resolutions of a Committee of the whole House,” March 20, 1797.]

Penal laws, which are either obsolete or absurd, or which have arisen from an adherence to rules of Common Law when the reasons have ceased upon which these rules are founded; and in short, all Laws which appear not to be consonant to the dictates of truth and justice, the feelings of Humanity, and the indelible rights of Mankind should be abrogated and repealed.[5]

[Footnote 5: Blackstone.]

But the deficiency of the Criminal Code does not arise solely from an erroneous and undigested scale of penalties and punishments. While on the one hand, we have to lament the number of these applicable to certain offences of a slight nature; we have equally to regret, that there exist crimes of considerable enormity, for the punishment of which the Law has made no provision.

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