BECCARIA'S Treatise on Crimes and Punishments was the first work which tended, in any degree, to open the eyes of the world to the errors and absurdities contained in most of the modern Codes of Criminal Juris prudence, and to disseminate those humane and just principles which may be aptly enough described as constituting the Philosophy of Punishment. The effects produced by this powerful performance, to which Voltaire did not disdain to act as commentator, were great and striking. Mankind, who had formerly acquiesced in the soundness of the existing laws and practice in reference to crimes and punishments, merely because they had examined neither the principles of the one nor the results of the other, were suddenly roused, by the development of truths as new as they were irresistible; and from that period we may date the commencement of a new era in the sentiments and opinions of mankind on this important and interesting subject. It was re

served for Mr Bentham, however, in his admirable work, entitled, "Théorie des Peines et des Recompenses," to systematise the principles which Beccaria had laid down, and to point out their striking applicability to the two great objects contemplated by all Penal Codes, the Prevention and the Punishment of Crimes. The lights thus struck out could not fail, in an enlightened age, and in a Government like ours, the popular part of which must always, more or less, be the index of the state of general sentiment and knowledge, to open the eyes of our legislators to the errors and defects which ignorance and negligence, rather than a sanguinary spirit, had contributed to produce, or suffered to accumulate, in our Criminal Code:

This state of the public mind naturally led to inquiry and examina. tion, the results of which established, beyond the possibility of controversy, that as the severity of the law had increased, crimes had multiplied in an equal proportion, and that, to

use the language of an ingenious writer," its efficacy is frequently in the inverse ratio of its severity.” (Edinburgh Review, xxxv. 321.) A few well-authenticated facts will place this important truth in a more convincing point of view than the most ingenious or profound theore tical reasoning.

Before the period of which we are now speaking (1819), the Statute Law of England contained no less than two hundred capital felonies, although, for the seventy years immediately preceding, execution had been enforced on only twenty-five of that immense number. The effects of such an anomaly hardly required to be told. In the first place, we have precisely the same punishment denounced against two hundred offences, each different, in the degree and description of criminality which it implies, from all the rest; so different, indeed, that the punishment which the law had justly decreed for treason, murder, and arson, was also denounced against being disguised on a high road, open heath, common, or down,-robbing warrens,-taking fish out of a river,-or breaking down the head or mound of a fish-pond. In the second place, the chances of escape were so greatly increased, that criminals, led unavoidably to calculate the hazards of punishment, were naturally prompted to engage in that most fatal species of gambling which such a state of the law could not possibly fail to create. In the last place, the enactments of the law, and the sentiments of the community, which alone can give these enactments a preventive force, were completely at variance; while the punishment of death, in cases where it was inflicted, necessarily lost a great portion of that salutary terror and indelible infamy which, but for this monstrous disproportion

between crime and punishment, could not have failed to accompany it.

But this is not all. The effects of the law, as it formerly stood, were directly and positively pernicious; inasmuch as jurymen were led to tamper with their oaths, judges to wink at what has been called a pious fraud, and counsel to lend their aid to find out ingenious pretences, by which a salvo might be provided for conscience, while a sanguinary and disproportionate punishment was evaded. This was exemplified before the repeal of the capital part of the punishment for stealing privately in a shop to the amount of 5s. ; in a dwelling-house to the amount of 40s. ; and from vessels in a navigable river to the amount of 40s. : in these cases, it was the practice of the jury to find the value of the goods stolen below that for which the punishment of death was awarded, although, in several instances, the real value was five times greater. But to put the thing in a stronger light, let us have recourse to figures. From 1805 to 1817, a period of twelve years, 655 had been indicted for stealing pri vately in a shop, warehouse, &c. to the amount of 5s. Of these 113 had been capitally convicted, and not one executed! Again, in the course of the nine years immediately prior to 1817, no less than 1228 individuals had been tried for stealing within a dwelling-house to the amount of 40s. Of these 342 had been capitally convicted, and only one, whose case was accompanied with aggravated circumstances, executed! Is this a state of the law which any man could desire to be continued? Once more, Mr Basil Montague stated to the Committee, appointed on Sir James Mackintosh's motion, that from the year 1732, when embezzlement of property by a bankrupt was made a capital offence, nearly 40,000

bankruptics had taken place; while in that long period there had only been 10 prosecutions, and 3 executions for the capital offence; " and yet fraudulent bankruptcies have become so common as almost to be supposed to have lost the nature of crime."

These facts speak for themselves; but if we concluded from thence that we had a fair view of all the crimes committed, and to which this almost universal impunity was extended, in the very face of the law, which, with out qualification, denounces the punishment of death on all, we should greatly err; for one of the best established and most natural conse. quences of a law of excessive and disproportionate severity is to create not merely a wish in the judge, counsel, and jury, to save the criminal, who has been actually prosecuted, but likewise a strong disinclination in the public to prosecute. Many persons in respectable lines of life, who had suffered from depredations of the kind above alluded to, declared to the Committee, that they could never bring their minds to prosecute where the delinquent would have been exposed to a capital conviction, and perhaps to suffer death; where as, had the punishment been less severe, and more commensurate with the offence, they would have readily prosecuted, as they had suffered severely from such depredations. Here, then, the law creates, if we may so express it, a double impunity. It indisposes the sufferer to prosecute, in which case the delinquent wholly escapes, emboldened to renew his practices, calculating on the same humanity; and, even when he is indicted, it gives him all the benefit of that "amiable conspiracy" between the Judge, the Jury, and the Counsel, by which they try to save an unhappy wretch from an incommensurate

punishment. Hence the number of the persons indicted and tried by no means affords a just view of that particular department of crime; since, if we knew the number, we ought to add all those who had entirely es caped by the humane disinclination to prosecute, produced by the law, and to which we have already alluded.

We think it is hardly possible to imagine a system of Criminal Jurisprudence, that calls more loudly for reform than that which produces such appalling results; which not only ensures, in a vast majority of instances, impunity to the offender, but actually gives, as it were, a species of bounty on the commission of crime. It were surely better that we had no law at all than to have a law which is never, or almost never enforced, and which is not merely inoperative as a check to crime, but leads judges and jury, in order to avoid its sanguinary enactments, to wink at a species of jesuitism, highly prejudicial both to judicial and moral purity. It is absurd to say that the dread of a fate, which is seldom or never awarded, should operate on the minds of criminals as a preventive, and induce them to discontinue their practices. The probability of punishment is so small, that, taken in conjunction with that natural confidence which every man has in his own good fortune, it is impossible that it should produce any other result than additional boldness in crime, accompanied with contempt for the law; for, to be at once formidable, efficient, and respected, the law should be certain. No proposition, therefore, can be truer than that of an honourable and learned member, who took a prominent share in the discussions which are to follow; that, in its letter, no Penal Code is more sanguinary than that of England,-in administration,

none is milder or more humane. To this mildness or humanity, we of course do not object: we would preserve both, but we would not do so at the frightful expence of forcing juries to commit perjury, judges to sanction it, and of ensuring the regular and progressive increase of crime, which a little wisdom and vigour might so effectually repress.

It has been said, that our Criminal Law is the growth of a bar barous age, and therefore but ill adapted to the improved, or at least altered, condition of modern society and manners; and were the assertion true, it would no doubt furnish a reason for endeavouring to accommodate our Criminal Jurisprudence to a state of things essentially different from that for which it had been originally designed. But strange as it may appear, it was incontest ably shown by Mr Buxton, that the great mass of capital felonies by which our statute-book is filled and disgraced, is of comparatively modern origin. From the reign of Ed. ward III. to that of Henry VII. a period of one hundred and fifty years, only six offences were declared capi. tal in addition to those already declared so by the statute law at the commencement of King Edward's reign: under the Tudors only sixteen; under the Stuarts, only thirty and un der the Princes of the House of Brunswick, up to the present time, one hundred and fifty-six! So that the enormous increase of criminal sta tutes took place only in the course of the last century; and the proposed reform in the Penal Code, so far from running counter to the ancient law, contemplates only the restoration of our jurisprudence to some thing of that purity and simplicity which it seems to have attained even in the days of our unlettered forefathers.

In the course of this chapter, the reader will find, that the proposed reform is at once moderate, practicable, and reasonable; that it proceeds upon no theoretical views in opposition to facts and experience; that the expediency of it has been admitted by men most conversant with the administration of Criminal Law; that the necessity of the punishment of death, in all cases where the voice of society demands it, and where it is necessary for the effectual protection of either life or property, is readily and fully admitted; and that the unprecedented increase of crimes in late years, and the manifest insufficiency of the existing law to check or repress them, render it a duty which the Legislature owed to the public to take measures to remedy the evil, and to restore the law to something of its ancient vigorous and healthful efficacy. With these observations, which are necessarily of a general character, because we would not anticipate any thing that was to follow, we proceed to lay be. fore our readers an outline of the debates and discussions on this most important subject.

During this session, the attention of Parliament was first called to the state of Criminal Law by a Petition from the Common Council of London, presented to the House of Commons, on the 25th of January; and by another, of the same tenor, and from the same body, to the Lords, on the 27th, praying for a revision of the Penal Code, upon the grounds of the useless multiplication of offences punishable with death,-the effects of such a state of the laws on prosecutors, judges and jurymen, and the late unprecedented increase of crimes, notwithstanding the severity of punishment denounced by our existing Criminal Code. In presenting this petition to the Upper House, Lords

Holland took occasion to make some very ingenious remarks on the nature of punishment, showing that disproportionate severity led inevitably to the multiplication of crimes, by increasing the chances of escape to the criminal, from the reluctance which men felt to prosecute for petty offences for which the law had strangely provided a capital punishment. Lord Liverpool was of opinion, that the increase of crimes was partly owing to the change from war to peace; and he remarked, that if the records of London and Middlesex were examined, with the view of ascertain ing the state of crimes during and after the American war, the proportional increase would be found to resemble, in a very remarkable manner, what had recently occurred. It appeared, that during that war crimes had at first diminished, then increased towards its conclusion; and during the first years of peace, had still greatly increased. In 1777, the num ber of capital convictions was 63; in 1778, they were 81; in 1779, they decreased to 60, a circumstance well worthy of their Lordships' attention. In 1781, the number increased to 90; in 1782, the number was 108; in 1783, still increasing, 173; in 1784, the convictions were 153; and in 1785, they were 151. Hence it appeared, that the increase of crimes during the last years of the American war, and the first years of peace, compared with the first year of the war, was nearly in the proportion of 3 to 1, which was precisely the proportion which had been observed to take place with respect to the late war. From these facts it was natural to look to the increase of crimes, to which their Lordships' attention was now called, as having for its principal cause the state of the country produced by the change from war to

VOL. XII. PART 1.

peace. An examination of the state of crimes during and after the war of 1756 would afford a similar result. The number of the convictions was in 1759, 15; in 1760, 14; in 1761, 13; in 1762, 25; in 1763, 61; in 1764, 52; in 1765, 41.

The Marquis of Lansdown did not concur in this view of the causes of the increase of crime, and instanced, as a proof, the great number of juvenile offenders, the cause of which he took to be the state of our prisons, which had become seminaries of vice, in which the youths are formed and tutored to the commission of crime. The petition was ordered to lie on the table.

On the 28th of January Sir James Mackintosh moved for certain returns of forgeries on the Bank of England, and in the course of his speech took occasion to animadvert on a document recently laid before the House, pamely, the Report of the Commissioners appointed to inquire into the means of lessening the facility with which Bank-notes had been hitherto imi tated. The remarks of the honourable and learned gentleman called up Mr Courtenay, who made a number of observations explanatory of the course that had been pursued by the Committee in question,-of the plans, nearly 200 in all, which had been submitted to their consideration, nine of which only promised to be in any degree useful in accomplishing the great object they had in view, and of the experiments which were still in progress, for ascertaining the effect of combining an improved plan with an improved paper. After a few words from Mr Tierney and Mr Manning, Sir James Mackintosh amended his motion, by including in the lists for which he had moved the number of forged notes detected by the Bank during the period which