CHAPTER IX.
Law Reform—The Penal Code of England—Its Barbarity—The Death-Penalty —Sir Samuel Romilly—His Efforts to Abolish Capital Punishment—His Talents and Character.
The earliest mouth piece of Jeremy Bentham in Parliament, and his "middleman" with the public, was Sir Samuel Romilly. This accomplished lawyer, from the period he entered Parliament, in 1806, till his death, in 1818, directed his main efforts to Law Reform; especially the amelioration of the Penal Code, and the diminution of the number of capital offenses.
The present criminal code of England is a disgrace to civilization. When Romilly commenced his labors, it would have disgraced barbarism. Blackstone had said in his Commentaries, (and it was substantially true in 1806,) "Among the variety of actions which men are liable daily to commit, no less than one hundred and sixty are declared by act of Parliament to be felonies, without benefit of clergy; or, in other words, to be worthy of instant death." I will specify a few items in this bloody catalogue. Treason, murder, arson, and rape, were of course capital crimes. So was counterfeiting coin; refusing to take the oath of allegiance under various circumstances; falsifying judicial records; taking a reward for restoring stolen goods, when accessory with the thief; obstructing the service of legal process; hunting in the night disguised; writing threatening letters, to extort money; pulling down turnpike gates; assembling to produce riots, and not dispersing at the order of a magistrate; transporting wool or sheep twice out of the kingdom; smuggling; fraudulent bankruptcies; marrying a couple except in "a church," without the license of the Archbishop of Canterbury, and making false entries in relation thereto in a marriage register; wandering as gipsies thirty days; burglary, in the night; stealing, from the person, property above the value of twelve pence, or, from a dwelling-house, above five shillings, or a vessel above forty shillings; stealing fish, hares, and conies; robbing on the highway to the value of a farthing; forgery in all its multiplied forms; sundry mere trespasses to personal property, such as tearing down fences, opening fish-ponds, destroying trees in parks and gardens, maiming cattle—and the list might be swelled through a chapter.
The legal mode of inflicting punishment, in many of these cases, was equally barbarous with the penalties. Not content with killing the wretch, he might be dragged to the place of execution at the heels of horses; or emboweled while alive; or burnt to death; or beheaded, quartered, and the parts nailed up in conspicuous places; or his skeleton left to rot on the gallows; or his hands and ears cut off, and his nostrils slit; or be branded on the cheek or hand, before execution. And down to the reign of William III, counsel were not allowed to prisoners, even in cases of high treason, when the whole power of the Government was brought to crush them; and it was not till the recent reign of William IV, that, in other capital cases, counsel for the accused were allowed to do more than state points of law to the court.
Such a Penal Code would disgrace the Fejee Islands. Yet, it was, in its main features, the law of England in 1806; and, notwithstanding the lucubrations of Bentham, the dashing essays of Brougham, and the lucid speeches of Romilly and Mackintosh, sustained by the protests and the petitions of churchmen and dissenters, Catholics and Quakers, it remained the law, with slight modifications, till the reign of George IV; and much of it is law to this day! And this code could be eulogized by the classical Blackstone; whilst Paley, the archdeacon, could congratulate the readers of his Moral Philosophy on the fact, that torture to extort confessions had been excluded "from the mild and cautious system of penal jurisprudence established in this country!" Such mildness is a "caution!" The same author, alluding to those who might happen to be convicted and hung through mistake, counsels their surviving friends not to repine, but "rather to reflect that he who falls by a mistaken sentence, may be considered as falling for his country."
No one will suppose that such laws, the offspring of the dark ages, could be enforced against all offenders after the sunrise of the nineteenth century. Still, capital convictions under them were frightfully numerous. The statistics of English criminal jurisprudence afford abundant illustrations of the doctrines, that the severity of the law does not diminish crime, and that the certainty rather than the severity of punishment is the surest preventive. These doctrines had been maintained with great power by Lord Bacon, by Stiernhook, the Swedish Blackstone, by Blackstone himself, by the Marquis of Beccaria, by Voltaire, by Montesquieu, by Bentham; and even Paley had admitted their truth. Romilly enforced them in Parliament; and it may be safely affirmed, that the history of crime proves nothing if it does not establish their truth. Larcenies, burglaries, robberies, and forgeries, had increased in England during the eighteenth century, much beyond the advance of population and commerce, notwithstanding the severity of the law and its frequent execution. But these obvious facts were assigned to other causes than defects in the penal code, and these doctrines were scouted as the dogmas of visionary enthusiasts, by nearly the whole of the bench, the bar, and the leading influences in Church and State, at the dawn of the present century. They admitted that the unvarying execution of the law would be barbarous; but insisted that its frightful penalties ought to be suspended over the heads of offenders, to deter from crime; whilst they trusted to indirect modes of softening its rigors. So, judges undertook to bend the law to suit the merits of particular cases; and the humanity of juries, outrunning the injunctions of their oaths, opened the door of escape in cases of peculiar severity. The latter would frequently find that the value of the property stolen did not reach the capital point; as, that a shilling piece was worth but eleven pence farthing; or a crown, but four shillings and sixpence; or goods for which the thief had asked £8, and refused £6, were worth but thirty-nine shillings; thus stultifying their senses to save a life which the law clamored to sacrifice.
Another evil resulting from the severity of the English code, was felt, not only in that country, but has reached us and our times, and will afflict us so long as we are governed by the common law. Merciful judges, during the trial of offenders for minor crimes punishable with death, would lend a greedy ear to the ingenious cavils and absurd quirks of counsel, and quash the indictment—or refine away the plain words of a statute, so as to exclude the offense from its operation—anything to save the life of a fellow-creature whose crime deserved a ten days' commitment to the House of Correction. And we are now reaping the fruits of this; for, be it known to the uninitiated, that all these cavils, refinings, quibbles, quirks, and quiddities, are recorded in books, and have come down to us as authoritative parts of "the perfection of human reason," making convenient holes for sturdy rogues, with the help of sharp-pointed lawyers, to creep through the meshes of our comparatively mild criminal code.
Sir Samuel Romilly found the penal law of England thus sanguinary on the statute book; thus abused in its administration by the courts; thus entrenched behind the authority of judges, lawyers, statesmen, and divines, when he commenced the humane but apparently hopeless task of softening its penalties to the milder civilization of the present age. He brought to this work professional eminence the most exalted, talents of the rarest order, learning varied and accurate, eloquence captivating and powerful, and a zeal and courage surpassed only by the benevolent warmth of his heart. Having previously secured some reforms in the civil law, he carried a bill, in 1808, repealing the capital part of the act against stealing property of above twelve-pence value. This horrid law had existed more than a thousand years, and probably in a thousand cases in which it had been executed, the hangman's rope cost more than the stolen property for which a life was forfeited. Even then Romilly could induce the legislature to fix the death-limit no higher than £15. This and another repealing act had slipped through Parliament in a very quiet way, without exciting the attention of the country. In 1809, Romilly proposed two bills, repealing the laws making it capital to steal to the value of above five shillings from a shop, or forty from a dwelling-house. He sustained them by a speech, which exhibited great research into the statistics of crime, comprehensive views of the philosophy of rewards and punishments, lofty appeals to humanity, and a just appreciation of the benevolent and liberal tendencies of the times. Both bills failed. But the friends of the halter had become alarmed at these reiterated attempts to restrict the death-penalty. The gallows-toad, touched by the spear of Ithuriel, started up a devil. It was the first time the mask had been torn from the penal code of England, and its visage, grim and bloody, exposed to the public eye. The excitement caused by this attempt to narrow the scaffold is at this day incredible. The chancellor in his robes, and the bishop in his lawn; the barrister in his silk gown, and the attorney in his threadbare coat; the reviewer in the aristocratic quarterly, and the obscure pamphleteer in Grub street; all entered the lists to crush the disciple of Jeremy Bentham, and demolish his dangerous heresies. If Romilly had attacked the monarchy itself, or declared that the horse-hair wig of the Archbishop of Canterbury was not a part of the British Constitution, he could hardly have produced more indignation among judges and hangmen; more consternation among the old women of both sexes. Jack Ketch was no longer to hang men for stealing a cast-off coat or petticoat worth five shillings and six pence, and what would become of England! Sir Samuel published a pamphlet containing the substance of his great speech, with additional statistics, which Brougham made the basis of an able essay in the Edinburgh. The pamphlet and the essay produced a profound impression upon liberal and humane minds throughout the country.
But, for two years, he was able to accomplish nothing in Parliament. In 1811, he took advantage of some favoring circumstances to carry a law abolishing capital punishment in the cases of soldiers and sailors found begging, without having testimonials of their discharge from the service. Grateful country; to consent not to hang a sailor, who lost his arm at Trafalgar, or a wooden-legged soldier who stormed Badajos, for begging a loaf of bread! Through the seven following years, though Romilly and his coadjutors thundered on the floor of the Commons, and lightened from the pages of the Edinburgh, and rained down pamphlets upon the country, charged with appalling facts, unanswerable arguments, and glowing appeals to the heart of the nation, they fell on the iron-mail of the Tory party only to rebound in their own faces; and this great man having bequeathed the prosecution of the work to Mackintosh, sunk into his grave, in 1818, without seeing one lineament of relenting in the grim visage of the Penal Code.
But, not alone to reforms in the criminal code did this excellent man give his hand. He probed the Court of Chancery, and hove up to the sun some of the abuses which festered under the stagnant administration of Eldon—exposed the huge masses of rubbish which so blocked up the common law courts, that the difficulty of suitors to get in was only surpassed by the impossibility of their getting out; and though the reforms which he proposed were very moderate, and aimed only at glaring defects, they encountered the same bigoted attachment to ancient abuses which assailed him in the other field of his exertions. Lord Eldon especially construed every insinuation that the system of Equity was not perfect, into a personal attack on its head. He regarded a peep into his court as Jack Ketch did a side-glance at the gallows, and repelled every insinuation that he was not competent to do for men's property what Jack did for their lives—suspend animation by stopping the circulation.
Nor was it law reform alone which enlisted the sympathies of Romilly. As Solicitor General he brought in the bill for the abolition of the slave trade, in 1806-7; and in 1814, when the European treaty of Peace, negotiated by Castlereagh on the part of England, and which provided for the revival of the traffic by France, came before Parliament, he led the friends of humanity to the attack upon that article of it in a speech of the loftiest rebuke, breathing the purest philanthropy and attired in the richest garb of eloquence. His eulogium on Wilberforce and Clarkson was beautiful, and his appeal to the former, as he turned and addressed him personally, thrilling.
Romilly's mind was cast in the rarest mold, and his heart was attuned to the liveliest emotions. He could master the understanding with his reason, and sway the will by his persuasion. He frowned down meanness with the dignity of a judge sentencing a culprit, and his sarcasm was too keen to be often provoked. Standing at the head of the Equity bar, his professional attainments covered the widest field, and were only equaled by the extensive practice to which they were applied. His character was beautifully pure, and he was the delight, almost the idol, of his intimate friends. Yet, his modesty always held him back from assuming in the courts and the Commons the place that was assigned to him by the universal homage of his party, and the all but unanimous verdict of his opponents.
Romilly was the grandson of a French mechanic, who, with his wife, fled to England, on the revocation of the Edict of Nantes. His father married the daughter of a refugee, and Samuel was, therefore, of pure French blood. He was born in 1757. His father, who was a watchmaker, articled him to a commercial house, the death of whose head soon threw him back into his father's shop, where he kept the books for two or three years. During this time, he marked out for himself, and pursued with avidity and success, a course of classical study. Leaving the shop, he entered as an apprentice the office of one of the clerks in chancery, and for several years devoted all the leisure hours he could snatch from the drudgery of business, to the cultivation of general literature. Arriving at his majority, he studied law, and was called to the bar at the age of twenty-five—an admirable specimen of "a self-made man"—the only sort of MAN, by the bye, that is made. The following anecdote shows how his sensitive mind was, in mere childhood, bent toward the work which engrossed his mature years. He says: "A dreadful impression was made on me by relations of murders and acts of cruelty. The prints which I found in the Lives of the Martyrs, and the Newgate Calendar, have cost me many sleepless nights. My dreams, too, were disturbed by the hideous images which haunted my imagination by day. I thought myself present at executions, murders, and scenes of blood; and I have often lain in bed, agitated by my terrors, equally afraid of remaining awake in the dark, and of falling asleep to encounter the horrors of my dreams. Often have I, in my evening prayers to God, besought him, with the utmost fervor, to suffer me to pass the night undisturbed by horrid dreams." And it may be that these childish terrors had something to do with his painfully tragic fall. The death of a wife to whom he was fondly attached, and over whose bed he had watched with agonizing solicitude, threw him into a paroxysm of insanity, and he terminated with his own hand a life which England could not afford to lose. He was proud to acknowledge himself the disciple, in law reform, of Jeremy Bentham, and the friendship between him and Henry Brougham was as strong as the cords of a brotherly affection.