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ART. I. – 1. Thoughts on the Punishment of Death for For
gery. By Basil Montagu, Esq. London. 1830. 18mo. 2. The Opinions of different Authors upon the Punishment
of Death, selected by Basil MONTAGU, Esq. of Lincoln's
Inn. London. 3 vols. 8vo. pp. 800. 3. Facts relating to the Punishment of Death in the Me
tropolis, by EDWARD GIBBON WAKEFIELD, Esq. Lon
don. 1831. 12mo. pp. 198. 4. Speech of Sir Samuel Romilly, in the House of Com
mons, on Moving for Leave to bring in'a Bill for Reforming the Criminal Code. Parliamentary Debates. London. 1810 – 1829.
Such,' says the late Mr. Roscoe in his excellent work on Penal Jurisprudence, is the present state of the criminal law of England, that it seems to be universally admitted, that if it were carried into strict execution, it would form the bloodiest system of legislation, by which any nation, ancient or modern, ever punished itself.' And in defence of this terrible system, Dr. Paley, in his Political Philosophy, says, 'that by the number of statutes creating capital offences, it sweeps into the net every crime, which, under any possible circumstances, may merit the punishment of death; but when the execution of the sentence comes to be deliberated upon, a small proportion of each class are singled out, the general character or particular aggravation of whose crimes render
N. S. VOL. VII. NO. I.
them fit examples for public justice; and by this expedient few suffer death, whilst the dread and danger of it hang over the crimes of many.'
It is by such reasoning as this, that even wise and humane men, like this eminent writer, and others experienced in the law, but wedded to ancient systems and usages, - of whom are distinguished examples the two late Chancellors of England, Lords Eldon and Lyndhurst, — taking for granted that every thing is perfect as by law established, and regarding with implacable hatred the very name of reform as another name for subversion,-persist to this day in defending a system, at which in the mere theory every feeling of humanity revolts, and which long experience has shown to defeat its own end.
'It is a melancholy fact,' says Blackstone, whose testimony on this subject will be regarded of the highest authority, that among the variety of actions, which men are daily liable to commit, no less than an hundred and sixty have been declared to be felonies without benefit of clergy; in other words, to be worthy of instant death. So dreadful a list,' adds this celebrated commentator, 'instead of diminishing, increases the number of offenders. The injured, through compassion, will often forbear to prosecute; juries, through compassion, will sometimes forget their oaths, and either acquit the guilty, or mitigate the nature of the offence; and judges, through compassion, will respite one half of the convicts, and recommend them to the royal mercy. Among so many chances of escaping, the needy and hardened offender overlooks the multitude that suffer. He boldly engages in some desperate attempt to relieve his wants, or to supply his vices; and if unexpectedly the hand of justice overtakes him, he deems himself peculiarly unfortunate in falling at last a sacrifice to those laws, which long impunity had taught him to contemn.'
Such is the undeniable operation of laws, of which the penalty annexed is disproportioned to the offence committed; when, not the public only, but the individuals who have been the sufferers by the violation of it, prefer that the offender should escape rather than be themselves the prosecutors to an unreasonable punishment, sometimes inflicted in all its severity. Toʻremedy both these evils, to protect the law from contempt, and its inflictions from the reproach of inhumanity, Sir Samuel Romilly urged a reformation in the whole penal code. To this purpose, that enlightened philanthropist, that upright statesman, and most excellent of men, devoted the last years of his useful life. He
gave whole heart and soul to the object. He suffered neither the pressure of his professional affairs, which left him scarce an hour for domestic enjoyment, and which proved at last too burdensome for his susceptible frame, nor the opposition of judges, nor defeat year after year in Parliament, to discourage him. Like Wilberforce, in contending for the abolition of slavery, he would not suffer himself to be silenced or put down. He was not to be intimidated by ministerial authority, nor by the grave experience repeatedly urged against him of Lord Ellenborough, nor by sneers freely vented at his enthusiastic notions of reform, nor by praises, contemptuously bestowed upon his amiable temper or laudable motives; but, year after year, he pressed upon Parliament what he regarded as a most momentous subject. The rejection of a motion at one session he failed not to follow up with another at the next. Where he found no prospect of obtaining a vote for a general reform of the criminal code, he would insist upon some specific alteration, as in the Speech before us, proposing the abolition, in certain cases, of the punishment of death. And had not the life of this good man been suddenly closed, it can scarcely be doubted that his powerful exertions, sustained as they were by the influence of his character and virtues, would have accomplished, in some degree at least, the object so near to his heart. We believe, that he left nothing to his friends or to his country to lament, but the melancholy suddenness of his death.
In the excellent Speech, to which we have referred, delivered in the House of Commons in 1810, he remarks, that there is probably no country in the world, in which so many and so great a variety of actions are punishable with loss of life as in England; while at the same time these sanguinary statutes are not carried into execution. For some time past,' he adds, 'the sentence of death has not been executed on more than a sixth part of all the persons, on whom it has been pronounced, even taking into calculation crimes the most atrocious and the most dangerous to society. And if we exclude these from our consideration, we shall find, that the proportion, which the number executed bears to those
convicted, is one to twenty, and that if we go further, and confine our observation to those petty crimes, unaccompanied by any circumstances of aggravation, for which, notwithstanding, a capital punishment is appointed by law, such as stealing privately in shops or dwelling-houses, we shall find the
proportion of those executed falling far below that even of one to twenty.'*
To illustrate the same general principles as are maintained in the Speech of Sir Samuel Romilly; to expose the bad tendencies of the present penal code of Great Britain, and particularly to show, that crimes are more effectually prevented by the certainty than by the severity of punishment, is the design both of Montagu and of Wakefield in the volumes before us. Mr. Montagu has for many years devoted much attention to the subject of capital punishments. His selection of the opinions of different authors has been for many years before the public, and contains in three large volumes a valuable repository of argument and facts upon this interesting topic. He is honorably known, as we understand, by his professional attainments, and more extensively by his judicious efforts for the interests of humanity. The little volume before us, 'On the Punishment of Death,' &c. recently published, is evidently the result of much reflection and observation, of which his official situation furnished ample opportunities, that an ardent zeal in the cause disposed him to improve.
Among other obvious effects of all undue severity, in the criminal law, on which the writer particularly remarks, is such a refinement in the practice of it, as equally defeats the ends of justice, as if the whole code were in reality a dead letter, He tells us, that not only juries from a principle of humanity, but judges in applying and pronouncing the law, have resorted to such wire-drawn distinctions, that it is made difficult to convict the guilty of the simplest crimes, though proved by
Our limits must prevent our entering into the details, by which, from official reports obtained for the purpose, the arguments of Sir Samuel Romilly are sustained. But for these and other important facts, connected with the whole subject of penal statutes, as executed in various countries, particularly in France, England, and in our own country, we refer our readers to a very full and authentic article, in Lieber's “Encyclopædia Americana,' under the head of Statistics of Crime.'