not agreed to by the Lords.1 In 1772, Sir Charles Bunbury passed a bill through the Commons, to repeal some of the least defensible of the criminal statutes; but the Lords refused to entertain it, as an innovation.2 In 1777, Sir W. Meredith, in resisting one of the numerous bills of extermination, made a memorable speech which still stands out in judgment against his contemporaries. Having touchingly described the execution of a young woman for shoplifting, who had been reduced to want by her husband's impressment, he proceeded: "I do not believe that a fouler murder was ever committed against law, than the murder of this woman by law;" and again: "the true hangman is the member of Parliament; he who frames the bloody law is answerable for the blood that is shed under it." But such words fell unheeded on the callous ears of men intent on offering new victims to the hangman.*

Uncertainty

Warnings more significant than these were equally neglected. The terrors of the law, far from preventing crime, interfered with its just punishment. of punishSociety revolted against barbarities which the law ment. prescribed. Men wronged by crimes, shrank from the shedding of blood, and forebore to prosecute; juries forgot their oaths and acquitted prisoners against evidence; judges recommended the guilty to mercy.5 Not one in twenty of the sentences was carried into execution. Hence arose uncertainty, one of the worst defects in criminal jurisprudence. Punishment lost at once its terrors and its example. Criminals were not deterred from crime, when its conse1 Comm. Journ., xxvi. 345; Lords' Journ., xxvii, 661.

2 Parl. Hist., xvii. 448; Comm. Journ., xxxiii. 695, &c.; Speech of Sir W. Meredith, 1777.

8 Parl. Hist., xix. 237.

4 Sir William Meredith said: :-"When a member of Parliament brings in a new hanging Bill, he begins with mentioning some injury that may be done to private property, for which a man is not yet liable to be hanged; and then proposes the gallows as the specific and infallible means of cure and prevention."

5 Blackstone Comm., iv. 15.

quences were a lottery: society could not profit by the suffer ings of guilt, when none could comprehend why one man was hung and another saved from the gallows. The law was in the breast of the judge; the lives of men were at the mercy of his temper or caprice.1 At one assize town, a hanging judge" left a score of victims for execution; at another, a milder magistrate reprieved the wretches whom the law condemned. Crime was not checked; but, in the words of Horace Walpole, the country became " one great shambles;" and the people were brutalized by the hideous spectacle of public executions.

Such was the state of the criminal law, when Sir Samuel Romilly commenced his generous labors.

Sir Samuel Romilly's bills, 18081818.

-

He en

tered upon them cautiously. In 1808, he obtained the remission of capital punishment for picking pockets. In 1810, he vainly sought to extend the same clemency to other trifling thefts. In the following year, he succeeded in passing four bills through the Commons. One only concerning thefts in bleaching grounds obtained the concurrence of the Lords. He ventured to deal with no crimes, but those in which the sentence was rarely carried into execution; but his innovations on the sacred code were sternly resisted by Lord Eldon, Lord Ellenborough, and the first lawyers of his time. Year after year, until his untimely death, he struggled to overcome the obduracy of men in power. The Commons were on his side; Lord Grenville, Lord Lansdowne, Lord Grey, Lord Holland, and other enlightened peers supported him; but the Lords, under the guidance of their judicial leaders, were not to be convinced. He did much to stir the public sentiment in his cause; but little, indeed, for the amendment of the law.2

1 Lord Camden said: "The discretion of the judge is the law of tyrants. It is always unknown; it is different in different men; it is casual, and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion to which human nature is liable."— St. Tr., viii. 58.

2 Romilly's Life, ii 303, 315, 325, 333, 383; iii. 95, 233, 331, Life of Lord Eldon, ii. 119.

337;

Twiss's

" 2

1819-1823.

His labors were continued, under equal discouragement, by Sir James Mackintosh.1 In 1819, he obtained Sir James a Committee, in opposition to the Government; Mackintosh, and in the following year, succeeded in passing three out of six measures which they recommended. This was all that his continued efforts could accomplish. But his philosophy and earnest reasoning were not lost upon the more enlightened of contemporary statesmen. He lived to see many of his own measures carried out; and to mark so great a change of opinion "that he could almost think that he had lived in two different countries, and conversed with people who spoke two different languages.” Sir Robert Peel was the first minister of the crown who ventured upon a revision of the criminal code. He brought together, within the narrow compass of a few statutes, the accumulated penalties of law bills, ċenturies. He swept away several capital punishments that were practically obsolete; but left the effective severity of the law with little mitigation. Under his revised code upwards of forty kinds of forgery alone were punishable with death. But public sentiment was beginning to prevail over the tardy deliberations of lawyers and statesmen. A thousand bankers, in all parts of the country, petitioned against the extreme penalty of death in cases of forgery; the Commons struck it out of the. Government bill; but the Lords restored it.5

Sir Robert Peel's criminal

1824-1830.

of criminal

With the reform period commenced a new era in criminal legislation. Ministers and law officers now vied Revision with philanthropists, in undoing the unhallowed code, 1832work of many generations. In 1832, Lord Auckland, Master of the Mint, secured the abolition of capital 1 Hans. Deb., 1st Ser., xxxix. 784, &c.

2 Mackintosh's Life, ii. 387-396.

8 11 Geo. IV. and 1 Will. IV. c. 66.

1860.

4. Presented by Mr. Brougham, May 24th, 1830; Hans. Deb., 2d Ser., xxiv. 1014.

5 Ibid., xxv. 838.

punishment for offences connected with coinage; Mr. Attorney-general Denman exempted forgery from the same penalty, in all but two cases, to which the Lords would not assent; and Mr. Ewart obtained the like remission for sheep-stealing, and other similar offences. In 1833, the Criminal Law Commission was appointed, to revise the entire code. While its labors were yet in progress, Mr. Ewart, ever foremost in this work of - and Mr. Lennard, mercy, carried several important amendments of the law.1 The commissioners recommended numerous other remissions, which were promptly carried into effect by Lord John Russell in 1837. Even these remissions, however, fell short of public opinion, which found expression in an amendment of Mr. Ewart, for limiting the punishment of death to the single crime of murder. This proposal was then lost by a majority of one ; but has since, by successive measures, been accepted by the legislature; - murder alone, and the exceptional crime of treason, having been reserved for the last penalty of the law.* Great indeed, and rapid, was this reformation of the criminal code. It was computed that, from 1810 to 1845, upwards of 1,400 persons had suffered death for crimes, which had since ceased to be capital.5

While these amendments were proceeding, other wise provisions were introduced into the criminal law. In 1834, the barbarous custom of hanging in chains was abolished. In 1836, Mr. Ewart, after a contention of many years, secured to prisoners, on trial for felony, the just privilege of being heard by counsel, which the cold cruelty of our criminal jurisprudence had hitherto denied them. In the

1 In 1833, 1834, and 1835.

2 Second Report, p. 33.

3 Hans. Deb., 3d Ser., xxxviii. 908-922.

4 24 & 25 Vict. c. 100.

5 Report of Capital Punishments Society, 1845.

6 This measure had first been proposed in 1824 by Mr. George Lamb. See Sydney Smith's admirable articles upon this subject. Works, ii. 259,

iii. 1.

same year, Mr. Aglionby broke down the rigorous usage which had allowed but forty-eight hours to criminals under sentence of death, for repentance or proof of innocence. Nor did the efforts of philanthropists rest here. From 1840, Mr. Ewart, supported by many followers, pressed upon the Commons, again and again, the total abolition of capital punishment. This last movement failed, indeed; and the law still demands life for life. But such has been the sensitive not to say morbid tenderness of society, that many heinous crimes have since escaped this extreme penalty; while uncertainty has been suffered to impair the moral influence of justice.

While lives were spared, secondary punishments were no less tempered by humanity and Christian feeling. Secondary In 1816, the degrading and unequal punishment punishments. of the pillory was confined to perjury; and was, at length, wholly condemned in 1837.1

In 1838, serious evils were disclosed in the system of transportation: the penal colonies protested against Transporits continuance and it was afterwards, in great tation. measure, abandoned. Whatever the objections to its principle, however grave the faults of its administration, — it was, at least in two particulars, the most effective secondary punishment hitherto discovered. It cleansed our society of criminals; and afforded them the best opportunity of future employment and reformation. For such a punishment no equivalent could readily be found.2 Imprisonment became nearly the sole resource of the state; and how to punish and reform criminals, by prison discipline, was one of the most critical problems of the time.

The condition of the prisons, in the last century, was a reproach to the state and to society. They were Prisons.

1 56 Geo. III. c. 138; 1 Vict. c. 23. In 1815 the Lords rejected a Bill for its total abolition. - Romilly's Life, iii. 144, 166, 189.

2 Reports of Sir W. Molesworth's Committee, 1837, No. 518; 1838, No. 669. Bentham's "Théorie des Peines," &c.; Dr. Whately's Letters to Earl Grey; Reply of Colonel Arthur; Innes on Home and Colonial Convict Management, 1842.