whatever improvement our penal laws have undergone in the last hundred years is due primarily to beccaria, and to an extent that has not always been recognised. lord mansfield is said never to have mentioned his name without a sign of respect. romilly referred to him in the very first speech he delivered in the house of commons on the subject of law reform. and there is no english writer of that day who, in treating of the criminal law, does not refer to beccaria.

even the idea of public utility as the final test and standard of morality is derived from beccaria, and the famous expression, ‘the greatest happiness of the greatest number,’ occurs, in capital letters, in the very first page of the ‘delitti e delle pene.’[30] bentham himself fully acknowledged this. ‘priestley was the first,’ he says, ‘unless it was beccaria, who taught my lips to pronounce this sacred truth: that the[47] greatest happiness of the greatest number is the foundation of morals and happiness.’ and with reference to his idea of the measurable value of different pains and pleasures, he says: ‘it was from beccaria’s little treatise on crimes and punishments that i drew, as i well remember, the first hint of this principle, by which the precision and clearness and incontestableness of mathematical calculations are introduced for the first time into the field of morals.’

english philosophy and legislation, therefore, owe enough to beccaria for his treatise never to be forgotten among us. standing, as it does, in reference to law as bacon’s ‘novum organon’ to science, or descartes’ ‘principia’ to philosophy, and representing a return to first principles and rejection of mere precedent in the matter of penal laws, it will never fail to gratify those who, with little admiration for law in the concrete, can yet find pleasure in studying it in the abstract. most men will turn readily from a system built up, as our own is, of unintelligible distinctions, and based on authority rather than on experience, to a system where no distinctions exist save those which are derived from the nature of things and are founded on the real differences that distinguish the moral actions of mankind.

the first trace of beccaria’s influence in england appeared in the first edition of blackstone’s commentaries, of which the book on the criminal laws[48] was published the very next year after the appearance of the italian treatise. that blackstone was well acquainted with it is proved by his frequent reference to it in treating of crimes. from beccaria he argues that the certainty of punishments is more effectual than their severity, and finds it absurd to apply the same punishment to crimes of different malignity. blackstone was also the first professional lawyer to find fault with the frequency of capital punishment in england, and to point out as ‘a melancholy truth’ the presence of 160 actions in the statute book which were felonies without benefit of clergy.

but there was one great fallacy, pervading our whole criminal law, which blackstone left undetected and untouched. this was, that the severity of punishment must be augmented in proportion to the increase of temptation, and that the measure of the guilt of a crime lay in the facility with which it might be committed. ‘among crimes of an equal malignity,’ says blackstone, ‘those [deserve most punishment, as most injurious] which a man has the most frequent and easy opportunities of committing, which cannot so easily be guarded against as others, and which, therefore, the offender has the strongest inducement to commit.’ and on this principle he finds it reasonable, that, while the theft of a pocket-handkerchief should be a capital crime, the theft of a load of hay should only involve transportation.

[49]

there was not an anomaly in our old criminal practice which was not based on this theory—a theory which had, indeed, its precedent in the old hebrew law that punished more severely a theft from a field than a theft from a house; and the first writer who protested against it was eden, afterwards lord auckland, who in 1771 published his ‘principles of penal law,’ one of the best books ever written on the subject. the influence of beccaria is apparent in eden’s work, not only by his direct reference to it, but by his spirit of declared opposition to the actual practice of the law. two instances of its tendency will suffice. ‘imprisonment, inflicted by law as a punishment, is not according to the principles of wise legislation. it sinks useful subjects into burthens on the community, and has always a bad effect on their morals; nor can it communicate the benefit of example, being in its nature secluded from the eye of the people.’ and again: ‘whatever exceeds simple death is mere cruelty. every step beyond is a trace of ancient barbarity, tending only to distract the attention of the spectators and to lessen the solemnity of the example. there is no such thing as vindictive justice; the idea is shocking.’

men of letters as a rule did not speak with this boldness, but in conscious opposition to professional and popular feeling expressed their doubts with a hesitation that was almost apologetic. so, for example,[50] goldsmith could not ‘avoid even questioning the validity of that right which social combinations have assumed of capitally punishing offences of a slight nature.’[31] strange, that in england such an argument should ever have seemed a daring novelty, a thing to be said tentatively and with reserve!

lord kames attacked our criminal law in a still more indirect way, by tracing punishment historically to the revenge of individuals for their private injuries, and by extolling the excellence of the criminal law of the ancient egyptians. they, he said, avoided capital punishments as much as possible, preferring others which equally prevented the recommission of crimes. such punishments effected their end ‘with less harshness and severity than is found in the laws of any other nation, ancient or modern.’[32]

nothing could be more interesting than lord kames’ account of the growth of criminal law, from the rude revenges of savages to the legal punishments of civilised states; but it was probably intended by its author less as an historical treatise than as a veiled attack upon the penal system of his country. it is, therefore, a good illustration of the timidity of the theoretical school against the overwhelming forces of the practical school of law, which, of course, included[51] the great body of the legal profession; and it is the first sign of an attempt to apply the experience of other countries and times to the improvement of our own jurisprudence.

it certainly should moderate our reverence for ancestral wisdom to find even a man like fielding, the novelist, speaking, in his charge to the grand jury of middlesex, of the pillory and the loss of a man’s ears as ‘an extremely mild’ punishment for a bad case of libel, or declaring our punishments of that time to be ‘the mildest and most void of terror of any other in the known world.’ yet fielding recognised several of the true principles of punishment. he attributed the increase of crime to the great abuse of pardons, which, he said, had brought many more men to the gallows than they had saved from it. he also advocated the diminution of the number of executions, their greater privacy and solemnity, whilst he recommended their following as closely as possible on conviction, that pity for the criminal might be lost in detestation for his crime.[33]

but that the humanity of the speculative school of law was not without some influence on public opinion, as well as to a certain extent a reflection of it, is proved by a few abortive attempts in parliament to mitigate the severity of our penal code in the latter half of the last century. even so early as 1752[52] the commons agreed to commute the punishment of felony in certain cases to hard labour in the docks; but the lords refused their consent, as from that time onward for more than eighty years they regularly continued to refuse it to all mitigation of the laws affecting crime. it must ever remain a matter of regret, that the r?le of the house of lords in the matter of criminal law reform should have continued from 1752 to 1832 to be one of systematic and obstinate opposition to change, and an opposition which had no justification in the general level of national enlightenment.

the chief honour of the earliest attempt at law reform belongs to sir william meredith, who in 1770 moved for a committee of inquiry into the state of the criminal laws. this committee proposed in its report of the following year the repeal of a few acts which made certain offences capital; and accordingly the commons in 1772 agreed, that it should no longer be punishable as high treason to make an attempt on the life of a privy councillor, that desertion of officers or soldiers should no longer be capital, nor the belonging to people who called themselves egyptians. some other proposals were negatived, such as a repeal of the hard law of james i. against infanticide; but the house of lords refused their assent even to the slight changes passed by the commons. ‘it was an innovation, they said, and subversion of the law.’[34][53] it is no reproach to meredith, burke, and fox that they ceased to waste their strength against conservatism such as this. all hope of reform was out of the question; and the most dreadful atrocities were suffered or defended. in 1777 a girl of 14 lay in newgate under sentence to be burnt alive for false coinage, because some whitewashed farthings, that were to pass for sixpences, were found on her person; and a reprieve only came just as the cart was ready to take her to the stake. not till 1790 was the law abolished by which women were liable to be burnt publicly for high or petit treason.[35]

but whatever tendency might have been arising in theory or in practice about this time to mitigate the severity of our laws was destined to receive a dead check from the publication in 1784 and 1785 respectively of two books which deserve historical recollection. the first was madan’s ‘thoughts on executive justice,’ in which the author, adopting beccaria’s principle of the certainty of punishment as the best check on crime, advocated an unflinching carrying out of the laws as they stood. ‘it was,’ says romilly, ‘a strong and vehement censure upon the judges and the ministers for their mode of administering the law, and for the frequency of the pardons which they granted. it was very much read, and certainly was followed by the sacrifice of many lives.’

[54]

the year before its publication 51 malefactors were executed in london, the year after 97, whilst not long afterwards was seen the rare spectacle of nearly 20 criminals hung at a time. romilly was so much shocked at what he considered the folly and inhumanity of madan’s book that he wrote a short tract of observations upon it, of which he sent a copy to each of the judges. but it is characteristic of the feeling of that time that only a hundred copies of his tract were sold. it was, however, from that time that romilly began to make the criminal law his special study, so that to madan indirectly our country owes the efforts of romilly.

the other book was from a man whom above all others our forefathers delighted to honour. this was archdeacon paley, who in 1785 published his ‘moral and political philosophy,’ and dedicated it to the then bishop of carlisle. nor is this fact of the dedication immaterial, for the said bishop was the father of the future lord chief justice ellenborough, who enjoys the melancholy fame of having been the inveterate and successful opponent of nearly every movement made in his time, in favour of the mitigation of our penal laws. the chapter on crimes and punishments in paley and the speeches of lord ellenborough on the subject in the house of lords are, in point of fact, the same thing; so that paley’s chapter is of distinct historical importance, as the[55] chief cause of the obstruction of reform, and as the best expression of the philosophy of his day. if other countries adopted beccaria’s principles more quickly than our own, it was simply that those principles found no opponents anywhere equal to archdeacon paley and his pupil, lord ellenborough.

paley, of course, defended the thing he found established; nor, considering the system he had to defend, did he state the case for it without ingenuity. he had, indeed, nothing to add to what blackstone had said regarding punishment, namely, that it was inflicted, not in proportion to the real guilt of an offence, but in proportion to its facility of commission and difficulty of detection. to steal from a shop was not more criminal than to steal from a house, but, as it was more difficult to detect, it was more severely punished. sheep, horses, and cloth on bleaching-grounds were more exposed to thieves than other kinds of property; therefore their theft required a stronger deterrent penalty.

there was only one offence which paley thought the english law punished too severely, and that was the offence of privately stealing from the person. in all other cases he defended the application of the capital penalty. it was, he thought, the peculiar merit of the english law that it swept into the net every crime which under any possible circumstance might merit death, whilst it only singled out a few[56] cases in each class of crime for actual punishment; so that whilst few really suffered death, the dread and danger of it hung over the crimes of many. the law was not cruel, for it was never meant to be indiscriminately executed, but left a large margin for the exercise of mercy.

paley agreed with beccaria that the certainty of punishment was of more consequence than its severity. for this reason he recommended ‘undeviating impartiality in carrying the laws into execution;’ he blamed the ‘weak timidity’ of juries, leading them to be over-scrupulous about the certainty of their evidence, and protested against the maxim that it was better for ten guilty men to escape than for one innocent man to perish. a man who fell by a mistaken sentence might, he argued, be considered as falling for his country, because he was the victim of a system of laws which maintained the safety of the community.

such was the reasoning which for nearly half a century governed the course of english history, and which for all that time it was a heresy to dispute.

barbarous spectacles were, paley thought, justly found fault with, as tending to demoralise public feeling. ‘but,’ he continued, ‘if a mode of execution could be devised which would augment the horror of the punishment, without offending or impairing the public sensibility by cruel or unseemly exhibitions of death, it might add something to the efficacy of[57] example; and by being reserved for a few atrocious crimes might also enlarge the scale of punishment, an addition to which seems wanting, for as the matter remains at present you hang a malefactor for a simple robbery, and can do no more to the villain who has poisoned his father. something of the sort we have been describing was the proposal, not long since suggested, of casting murderers into a den of wild beasts, where they would perish in a manner dreadful to the imagination, yet concealed from the view.’ it is interesting after this to learn, that paley thought torture properly exploded from ‘the mild and cautious system of penal jurisprudence established in this country,’ and that (to do him justice) he urged private persons to be tender in prosecuting, out of regard for the difficulty of prisoners to obtain an honest means of livelihood after their discharge.

howard’s book on the lazarettos of europe appeared four years after paley’s work. although it did not deal directly with crimes, it indirectly treated of their connection with punishment. howard was able to show that whilst in middlesex alone 467 persons had been executed in nine years, only six had been executed in amsterdam; that for a hundred years the average number of executions had been one a year at utrecht and that for twenty-four years there had not even been one there. the inference therefore was that the diminution of punishment had a direct[58] effect in diminishing crime. howard also advocated the restriction of capital punishment to cases of murder, arson, and burglary; highwaymen, footpads, and habitual thieves should, he thought, end their days in a penitentiary rather than on the gallows. even this was a bold proposal, in a state of society yet in bondage to paley.

something, however, occurred more fatal to the reform of our penal laws than even the philosophy of paley, and that was the french revolution. before 1790 there had been 115 capital offences in france; so that to alter the criminal law in england was to follow a precedent of unpleasant auspices. reform not unnaturally savoured of revolution, and especially a reform of the penal laws. in 1808 romilly said he would advise anyone, who desired to realise the mischievous effects of the french revolution in england to attempt some legislative reform on humane and liberal principles. with bitterness he tells the story of a young nobleman, who, addressing him insolently at the bar of the house of commons, informed him that he for his part was for hanging all criminals. romilly observed that he supposed he meant punishments should be certain and the laws executed, whatever they were. ‘no, no,’ was the reply, ‘it isn’t that. there is no good done by mercy. they only get worse: i would hang them all up at once.’ and this represented the prevalent[59] opinion. windham, in a speech against the shoplifting bill, inquired, ‘had not the french revolution begun with the abolition of capital punishment in every case?… was such a system as this was to be set up without consideration against that of dr. paley!’[36]

romilly’s first idea with respect to the reform of the criminal law was a sufficiently humble one. it was nothing more than to raise the amount of the value of the property, the theft of which should expose a man to death. twelvepence, as fixed by the statute of elizabeth, originally signified a much greater theft than it had come to signify after a lapse of two centuries. romilly had at first no idea of removing the death penalty for theft; his only hope was to get it affixed to a graver theft than the larceny of a shilling. yet even so he could not bring himself to consult with the judges on the subject of his intended bill, for ‘he had not the least hope they would approve of the measure.’

it was by the advice of scarlett, lord abinger, that he ventured to aim at the repeal of all statutes punishing mere theft with death; but, deeming it hopeless to urge their abolition all at once, he resolved to begin with that famous statute of elizabeth which made it a capital crime to steal a handkerchief or anything else from the person of another which was of the value of a shilling. his bill to effect this[60] passed both houses the same year it was introduced (1808), in spite of the strong opposition of the great legal dignitaries in either house. the statute was based, said judge burton, on the experience of two and a half centuries. the alternative punishment of transportation for seven years, said the attorney-general, would be too short; it should be for more years than seven, if not for life. if any change of punishment were necessary, said lord ellenborough, it should be transportation for life.

such was legal opinion generally as expressed by its ablest representatives with respect to the due punishment for pocket-picking not a hundred years ago. it is easy now to smile at such errors, and, at the barren waste of wisdom spent in their defence, but what weight after that can be attached, on subjects of the general policy of the law, to the opinion of its chief professors? can it be too much regretted that lord chief justice ellenborough should have sacrificed to his own authority, whilst alive, the authority of all judges ever destined to succeed him?

the success which attended romilly’s privately stealing bill and the failure which attended almost all his other efforts was probably due to the fact that larceny from the person without violence was, as has been said, the one single kind of offence which had paley’s sanction for ceasing to be capital. but the[61] very success of his first bill was the chief cause of the failure of his subsequent ones. for, capital punishment having been removed for mere pilfering, prosecutions became more frequent, and the opponents of reform were thus able to declare that an increase of theft had been the direct consequence of the abolition of the capital penalty. it was in vain to point out, that the apparent increase of theft was due to the greater readiness of individuals to prosecute and of juries to convict, when a verdict of guilt no longer involved death as the consequence.

romilly also injured his cause by a pamphlet on the criminal law, in which he criticised severely the doctrines of paley. so strongly was this resented, that in 1810 his bill to abolish capital punishment for stealing forty shillings from a dwelling-house did not even pass the commons, being generally opposed, as it was by windham, because the maintenance of paley’s reputation was regarded as a great object of national concern.[37] that is to say, men voted not so much against the bill as against the author of a heresy against paley.

in those days to steal five shillings’ worth of goods from a shop was a capital offence, and paley had explained the philosophy of the punishment. it would be tedious to follow the course of romilly’s bill against this law, called the shoplifting act,[62] through the details of its history. suffice it to say that it passed the commons in 1810, 1811, 1813, 1816, but was regularly thrown out by the lords, and only definitely became law many years later. but though the debates on the subject no longer possess the vivid interest that once belonged to them, and are best left to the oblivion that enshrouds them, it is instructive to take just one sample of the eloquence and arguments, that once led lords and bishops captive and expressed the highest legal wisdom obtainable in england.

lord ellenborough, on the last day but one of may 1810, appealed to their lordships to pause, before they passed the shoplifting bill and gave their assent to the repeal of a law which had so long been held necessary for the security of the public. no one, he insisted, was more disposed than himself to the exercise of clemency, but there was not the slightest ground for the insinuations of cruelty that had been cast on the administration of the law. if shoplifting did not require the penalty of death, the same rule would have to apply to horse- and sheep-stealing; and, in spite of all that was said in favour of this speculative humanity, they must all agree, that prevention of crime should be the chief object of the law, and that terror alone could prevent the crime in question. those who were thus speculating in modern legislation urged that punishment should[63] be certain and proportionate; but he could satisfy the house that any attempt to apply a punishment in exact conformity to the offence would be perfectly ludicrous. he had consulted with the other judges, and they were unanimously of opinion that it would not be expedient to remit this part of the severity of the criminal law.[38] he therefore entreated them to pause.

need it be said that the house of lords paused, as they were entreated to do, and that they paused and paused again, in a manner more suggestive of the full stop than the comma, generally out of deference to the same authority? romilly was indignant that so many prelates voted against his bills; but could they have done otherwise, when the best legal authorities in england urged that it would be fatal to vote for them?—when they were gravely told that if a certain bill passed, they would not know whether they stood on their heads or on their feet?

lord ellenborough was so hard upon ‘speculative humanity,’ as opposed to real practical common sense, that the speculative school are never likely to forget him. but they owe too much to him not to forgive him; since he is the standing proof, that in matters of the general policy of the law professional opinion is a less trustworthy guide than popular sentiment,[64] and that in questions of law reform it is best to neglect the fossil-wisdom of forgotten judges, and to seek the opinion of jones round the corner as readily as that of jones upon the bench.

a strong feeling against the pillory was aroused by the sentence passed against lord cochrane in 1814, by which, for supposed complicity in a plot to raise the price of the funds, he was condemned to a year’s imprisonment, to a fine of 1000l., and to stand in the pillory. a bill for the abolition of the pillory accordingly passed the commons the very next year, but lord ellenborough succeeded again in bringing the upper house to a pause: the pillory forsooth was as old as 1269; it was spoken of by the old historians; it was not confined to this country, for du cange spoke of it on the continent. for these reasons the pillory remained a legal punishment down to the first year of the present reign.

yet lord ellenborough was one of the best judges known to english history; he was, according to his biographer, a man ‘of gigantic intellect,’ and one of the best classical scholars of his day; and if he erred, it was with all honesty and goodness of purpose. the same must be said of lord chief justice tenterden’s opposition to any change in the law of forgery. his great merits too as a judge are matter of history, yet when the commons had passed the bill for the abolition of capital punishment for forgery, lord tenterden[65] assured the house of lords that they could not ‘without great danger take away the punishment of death.’ ‘when it was recollected how many thousand pounds, and even tens of thousands, might be abstracted from a man by a deep-laid scheme of forgery, he thought that this crime ought to be visited with the utmost extent of punishment which the law then wisely allowed.’ the house of lords again paused in submission to judicial authority.

sir james mackintosh, who succeeded romilly as law reformer, in 1820 introduced with success six penal reform bills into the house of commons; but the lords assented to none of them that were of any practical importance to the country. they agreed, indeed, that it should no longer be a capital offence for an egyptian to reside one year in the country, or for a man to be found disguised in the mint, or to injure westminster bridge; but they did not agree to remove the capital penalty for such offences as wounding cattle, destroying trees, breaking down the banks of rivers, or sending threatening letters. it was feared that if the punishment were mitigated, the whole of lincolnshire might be submerged, whole forests cut down, and whole herds destroyed. as to the shoplifting bill, they would not let death be abolished for stealing in shops altogether, but only where the value of the theft was under 10l. that seemed the limit of safe concession.

[66]

sir robert peel, who was the first ministerial law reformer, succeeded in getting the death penalty repealed for several crimes which were practically obsolete, but forty kinds of forgery alone still remained capital offences.

so great, however, did the changes appear to be, that sir james mackintosh declared, towards the close of his life, that it was as if he had lived in two different countries, such was the contrast between the past and the present. yet sir james died in the very year that the first reform bill passed, and it was not till after that event that any really great progress was made towards ameliorating the penal laws.

it is well known that lord tenterden refused ever to sit again in the house of lords if the reform bill became law, and that he predicted that that measure would amount to the political extinction of the upper house. as regards the history of our criminal law lord tenterden was right, for the period of long pauses had passed away, and rapid changes were made with but short intervals of breathing-time. from the year the reform bill passed the school of beccaria and bentham achieved rapid successes in england. in 1832 it ceased to be capital to steal a horse or a sheep, in 1833 to break into a house, in 1834 to return prematurely from transportation, in 1835 to commit sacrilege or to steal a letter. but[67] even till 1837 there were still 37 capital offences on the statute-book; and now there are only two, murder and treason. hanging in chains was abolished in 1834; the pillory was wholly abolished in 1837; and the same year ewart, after many years’ struggle, obtained for prisoners on trial for felony the right (still merely a nominal one)[39] of being defended by counsel.

thus it has come about that, after steady opposition and fierce conflict, english law finds itself at the very point which johnson and goldsmith had attained a hundred years before; so true is it, as beccaria has said, that the enlightenment of a nation is always a century in advance of its practice. the victory has conclusively been with the ultra-philosophers, as they were once called, with the speculative humanitarians, for whom good lord ellenborough had so honest a contempt. paley’s philosophy has long since been forgotten, and if it affords any lesson at all, it lies chiefly in a comparison between his gloomy predictions and the actual results of the changes he deprecated. the practical and professional school of law has yielded on all the most important points to the dissolving influence of beccaria’s treatise; and the growing demand for increasing the security of human life by the institution[68] of a penalty, more effective because more certain, than that at present in force, points to the still further triumph of beccaria’s principles, likely before long to mark the progress of his influence in england.