Johnson displays it in the “Rambler” (1751). Blackstone expressly declares that “every humane legislator should be extremely cautious of establishing laws which inflict the penalty of death, especially for slight offences.” Mr. Grose, in writing on the Criminal Laws of England (1769), observes: “The sanguinary disposition of our laws, besides being a national reproach, is, as it may appear, an encouragement instead of a terror to delinquents.”
At this time also appeared the pamphlet of “Beccaria” (1767), which was followed by an almost general movement in favour of milder laws throughout Europe. The Duke of Modena (1780) abolished the Inquisition in his states; the King of France, in 1781, the torture; in Russia, capital punishment—never used but in cases of treason—may be said, for all ordinary crimes, to have been done away with.
In England, where every doctrine is sure to find two parties, there was a contest between one set of men who wished our rigorous laws to be still more rigorously executed, and another that considered the rigour of those laws to be the main cause of their inefficiency. A pamphlet, called “Thoughts on Executive Justice,” which produced some sensation at the moment, represented the first class of malcontents, and the author declaimed vehemently against those juries, who acquitted capital offenders because it went against their conscience to take away men’s lives. Sir Samuel Romilly, then a very young man, replied to this pamphlet with its own facts, and contended that the way of insuring the punishment of criminals was to make that punishment more proportionate to their offences.
From this pamphlet dates the modern battle which the great lawyer, whose public career commenced with it, carried subsequently to the floor of the House of Commons.
His exertions, however, were less fortunate than they deserved to be. To him, indeed, we owe, in a great measure, the spreading of truths amongst the many which had previously been confined to the few; but he never enjoyed the substantial triumph of these truths, for the one or two small successes which he obtained are scarcely worth mentioning.
His melancholy death took place in 1819, and Sir James Mackintosh, who had just previously called the attention of Parliament to the barbarous extent to which executions for forgery had been carried, now came forward as the successor of Romilly in the general work of criminal law reformation.
In March, 1819, accordingly, he moved for a committee to inquire into the subject, and obtained, such being the result in a great measure of his own able and temperate manner, a majority of nineteen. Again, in 1822, though opposed by the ministers and law-officers of the Crown, he carried a motion which pledged the House to increase the efficiency by diminishing the rigour of our criminal jurisprudence; and, in 1823, he followed up this triumph by Nine Resolutions, which, had they been adopted, would have taken away the punishment of death in the case of larceny from shops, dwelling-houses, and on navigable rivers, and also in those of forgery, sheep-stealing, and other felonies, made capital by the “Marriage and Black Act;” in short, he proposed that sentences of death should only be pronounced when it was intended to carry them into execution. Mr. Peel, then home secretary, opposed these resolutions, and obtained a majority against them; but he pledged himself at the same time to undertake, on behalf of the government, a plan of law reform, which, although less comprehensive than that which Sir James Mackintosh contended for, was a great measure in itself, and an immense step towards further improvement.
Mackintosh’s success, throughout these efforts, was mainly due to the plain unpretending manner in which he stated his case. “I don’t mean,” he said, “to frame a new criminal code; God forbid I should have such an idle and extravagant pretension. I don’t mean to abolish the punishment of death; I believe that societies and individuals may use it as a legitimate mode of defence. Neither do I mean to usurp on the right of pardon now held by the Crown, which, on the contrary, I wish, practically speaking, to restore. I do not even hope that I shall be able to point out a manner in which the penalty of the law should always be inflicted and never remitted. But I find things in this condition—that the infliction of the law is the exception, and I desire to make it the rule. I find two hundred cases in which capital punishment is awarded by the statute-book, and only twenty-five in which, for seventy years, such punishment has been executed. Why is this? Because the code says one thing, and the moral feeling of your society another. All I desire is that the two should be analogous, and that our laws should award such punishments as our consciences permit us to inflict.”
It was this kind of tone which reassured the House that it was not perilling property by respecting life, and brought about more quickly than less prudent management would have done that reform to which the general spirit of the time was tending, and which must necessarily, a few years sooner or later, have arrived.