ALTERATIONS IN THE CRIMINAL LAW, ETC.
In 1833, a royal commission had been issued for the purpose of inquiring how far it might be expedient to reduce the written and unwritten law of the country into one digest, and to report on the best manner of doing it. A report was made on this subject in 1834; and while the commissioners were occupied in carrying, in some degree, their own recommendations in respect of it into effect, they were further called upon by government to state their opinions on the subject of the employment of counsel by prisoners, and on the punishment of death. In their second report, which was made in 1836, at great length, this was done, and one result was the bill which was passed in the preceding session, for allowing the assistance of counsel to prisoners in criminal cases. A more important result, however, was the introduction in the present session of a series of bills, having for their object the abolition in many instances of capital punishment. This subject had been brought before the house of commons on the 23rd of March by Lord John Russell, who argued that, if it were thought right that a change should take place in the law of the land on this head, it should be delayed as little as possible. Lord John Russell began by discussing the general doctrines advanced by Paley on the use of severity in criminal punishments, after which he gave some statistical details of capital condemnations in former years. He argued from these details that such a state of things gave a character of great uncertainty to the operation of the law, and rendered it less calculated to inspire that salutary dread in offenders which was the object of criminal punishment. His lordship proceeded to contend that there was no reason to apprehend an increase of crime from the abolition of the punishment of death in certain offences. He instanced the crime of forgery, which, with the exception of the cases of the forgery of powers of attorney and of bills, was now only punishable by transportation. The number of persons committed for this offence in the three years previous to 1833, was one hundred and fifty-five; and in the three following years two hundred and ten. In the first instance only fifty-eight per cent, were convicted; in the latter period the number convicted was seventy-one per cent. From this it appeared that there was no great increase in the number of offences, while the number of convictions was materially increased. The reason of this last effect of the present, criminal law was to be ascribed to the diminished reluctance to prosecute now that the offence was no longer capital. His lordship here stated that in a recent case a man had been tried and convicted of forging a power of attorney. That offence was yet capital; but previously to the case coming before the king in council, the secretary of state received a communication from the bankers of London, expressing their objections to capital punishment: and also another from the governor of the Bank of England, stating, though the Bank directors did not think it their duty to interfere, they had no wish to press for capital punishment. His lordship considered this to be an encouragement to proceed in their course of mitigating the punishment, and particularly for doing away with it in the two reserved cases in forgery. The principle as suggested by the commissioners on which his lordship proposed to proceed was, that capital punishment should be confined to high treason, and, with some exceptions, to offences which consist in or are aggravated by acts of violence to the person, or which tend directly to endanger life. It was proposed that capital offences should be reduced to—1st, high treason; 2nd, murder; 3rd, attempt to murder; 4th, burnings of buildings or ships; 5th, piracy; 6th, burglary; 7th, robbery; 8th, rape. Arson, piracy, burglary, and robbery were to be capital offences only when committed under circumstances or accompanied by acts directly calculated to endanger life. The setting fire to stacks would be no longer a capital offence: the crime, his lordship said, was no doubt a heinous one; but the severity of the punishment had the effect of deterring prosecutions. On the secondary punishments which were to be substituted for capital condemnation, Lord John Russell expressed considerable doubt as to whether the present system of transportation ought to be continued. In theory it seemed desirable to remove an offender to a great distance from the scene of his crime; but the accounts of the practical working of the system were unsatisfactory. The four or five thousand persons annually sent to New South Wales were not absorbed by the population, but continued to form a large and separate vicious mass. Crime and vice were consequently on the increase in the settlement; and the continual importation of fresh cargoes of criminals threatened to aggravate the evils indefinitely. The punishment operated unequally on the convicts; it depended on the humour or temper of the masters whether their situation should be one of indulgence, or one of intolerable hardship. Moreover, there was no merit in the system on the score of economy, it cost the country from £350,000 to £400,000 annually. His lordship proposed, therefore, to abridge the number of cases of transportation, but to aggravate its operation in those which continued subject to it. No person should be transported for less than ten years, it having been found that the effect of a shorter period was to make the criminals insolent and unruly. The next period was to be for fifteen years, and the last for life. A certain hour of labour in the chain gangs was to be allotted to all the prisoners, and indulgences afforded them according to their good conduct. But these were merely suggestions; he did not in the present session intend to bring in any general measure with a view of carrying them into effect.
No opposition was given to the passing of the bills in the commons. They were brought into the upper house by Lord Denman, and the second reading was fixed for the 4th of July. The propositions were moved by Lord Denman, who alleged in their support similar facts and arguments to those urged in the commons by Lord John Russell. Lord Lyndhurst gave his full support to the principle and object of the bills; but he pointed out certain inconsistencies and anomalies of detail, which were subsequently rectified. The measures were likewise warmly advocated by Lord Brougham, who looked with confidence towards a general and effectual mitigation of the criminal code. Among the amendments which were made by the lords was one changing the term of imprisonment from five to three years, limiting the term of solitary confinement to a month at one time, and to not more than three months in a year, and the taking away the capital punishment for offences against the riot act. Thus amended, the bill passed the lords, and the amendments were afterwards agreed to unanimously by the commons.
An important alteration was made in this session, also, in the civil law of the country in respect of the forms to be observed in the execution of wills. This subject was introduced in the house of peers on the 23rd of February, by Lord Langdale, the master of the rolls. His lordship said that the general object of the measure was to collect the provisions of several statutes relating to wills into one act of parliament; and to make at the same time such modifications of these provisions as should afford additional securities for the prevention of spurious wills, and additional facilities for making genuine ones. His lordship proposed to allow the owner of copyholds and customary freeholds to dispose of them by will, which could not now be done. As the law stood, a person could only bequeath such real property as he was possessed of at the time of making his will; but his lordship said he would enable the testator to dispose of any he might acquire subsequently to the execution of the will. At present no person under the age of twenty-one could make a will: his lordship proposed to give the power of disposing of personal property to those who were beyond the age of seventeen. With respect to witnesses the bill would enact that in all cases the execution of the will must be attested by two, whether the property were real or personal. An executor would be admitted to give evidence of the validity of a will, which he could not do at present. Under the existing law it was not necessary that both the witnesses should be present at the same time; but the bill provided that the signature of the testator or his acknowledgment should be made in the presence of two witnesses, who should then attest it themselves. With respect to the revocation of wills, no alteration was proposed in the rule whereby a woman’s will is set aside, by marriage; but it was proposed to alter the rule adopted from the ecclesiastical courts in modern times, whereby a man’s will is considered as revoked by a subsequent marriage and the birth of a child. The bill finally provided for the due construction and effect of certain words. His lordship said that a legislative construction of words had been objected to; but, he argued, that when a rule of construction which plainly violated the lawful intention of testators had been established in the courts of law, there was no way of correcting it but by legislative interposition. The bill was warmly approved of by the leading law authorities in the upper house, and passed almost without discussion. In the commons, also, it met with general approbation; the only opposition came from Sir Robert Inglis, who objected to it chiefly on the ground of the expense which the mode of execution there enjoined would entail on the humbler class of testators. By abolishing holograph wills, and rendering two witnesses necessary, a resort to professional advice would become indispensable. The bill, however, was ably defended by the attorney-general; and it passed into law.