Sketches of Reforms and Reformers, of Great Britain and Ireland

by Henry B. Stanton

CHAPTER X.

Law Reform—The Penal Code—Restriction of the Penalty of Death in 1823-4—Appointment of Commissioners to reform the Civil Law in 1828-9—Sir James Mackintosh—Brougham—Robert Hall.

On the death of Romilly, the leadership in the reformation of the criminal code devolved on Sir James Mackintosh. At the election just before his decease, the liberal party largely increased its members of Parliament. Early in the session of 1819, Sir James carried a motion against Ministers for a committee to revise the penal code. He was appointed its chairman; and in 1820-1, in pursuance of its doings, introduced six bills for the abrogation of capital punishment in certain cases of forgery, larceny, and robbery, and amending the law in other important particulars. The bills were defeated. A partial effort at reform was made the next session, and one or two feeble triumphs achieved. But the day was dawning. In 1823, Sir James proposed nine resolutions, providing for radical reforms in the penal code. Mr. Peel, the Home Secretary, caused these propositions to be rejected, only that Ministers might introduce bills of their own, which largely restricted the death-penalty, and prepared the way for other repealing acts, till capital punishment was abrogated in some fifty cases. Thus the dark and sanguinary system which had so long reared its front over the jurisprudence of England, received a fell blow.

In 1828, Mr. Brougham made his celebrated speech in favor of remodeling the whole civil branch of the common law. Near the close he said: "It was the boast of Augustus—it formed part of the glare in which the perfidies of his earlier years were lost—that he found Rome of brick, and left it of marble—a praise not unworthy a great prince. But how much nobler will be the sovereign's boast, when he shall have it to say, that he found law dear, and left it cheap—found it a sealed book, left it a living letter—found it the patrimony of the rich, left it the inheritance of the poor—found it the two-edged sword of craft and oppression, left it the staff of honesty and the shield of innocence!" This speech, one of the greatest Mr. Brougham ever delivered, was followed by an address to the throne for the appointment of commissioners to inquire into the origin, progress, and termination of actions in the courts, and into the state of the law regarding real property. Two commissions were immediately instituted; one of general common law inquiry; the other, of inquiry into the law of real estate. Afterwards, the subjects of codification, consolidation of the statutes, and reform of the criminal law, were referred to other commissions. The commission to inquire into abuses in courts of equity had previously been appointed. Some twenty or thirty of the ablest lawyers in the kingdom were placed on these commissions, several of whom have since been elevated to the bench. Their elaborate reports, presented during the past twenty years, have displayed vast research and learning, and the numerous reforms recommended by them, exhibiting a cautious but steady advance in the path of improvement, have generally been adopted by the legislature. Though the prevailing law of England still continues a chaos of absurdities and excellences, the reforms introduced by these commissioners will be appreciated by all who have occasion to explore the intricate windings and gloomy chambers of the huge structure. The reports alluded to have been the textbooks of revisers and codifiers in other countries where the common law prevails, and were frequently cited, and their recommendations often adopted, by the able revisers of the New York Statutes—which last have served as the model for revisers in other States of the American Union.

I am now to speak more particularly of Sir James Mackintosh, one of the brightest ornaments of the liberal party of Great Britain. This eminent Scotsman was born of humble parentage, in 1765. At the University of Aberdeen he met Robert Hall, the celebrated Baptist divine, to whom he became warmly attached, "because," as Sir James says, "I could not help it." He adds, that he "was fascinated by his brilliancy and acumen, in love with his cordiality and ardor, and awe-struck by the transparency of his conduct and the purity of his principles." Their class-mates called them Plato and Herodotus. They traveled the whole field of ancient and modern metaphysics and philosophy hand in hand, debating every point as they went, till in Plato and Edwards, in Aristotle and Berkley, in Cicero and Butler, in Socrates and Bacon, there was scarcely a principle they had not examined, and about which they had not enjoyed a keen encounter of their wits. The heat engendered by these friendly controversies fused more completely into one their congenial natures. Such an attachment, formed in the springtime of youth, was sure to endure; and though, in subsequent life, they moved in widely different spheres, their intimacy continued throughout their long career.

Being destined for the medical profession, Mackintosh took his degree at Edinburgh, and went up to London to practice. George III, then exhibiting symptoms of insanity, the subject of his illness and of making his son Regent was agitating Parliament when Mackintosh arrived in the metropolis. Doctor Mackintosh, instead of prescribing for the diseases of the king, wrote a pamphlet in favor of the claims of the prince; leaving the constitution of the monarch to take care of itself, while he attended to the constitution of the monarchy. The king suddenly recovered, when, it being no longer necessary to administer medicine either to the Crown or the Constitution, the Prince of Wales returned to his mistresses, and Mackintosh went to Leyden to complete his studies, where he lounged away a few months, reading Homer and Herodotus, to the great neglect of Galen and Hippocrates. Returning to England, he plunged into matrimony before he had sufficient practice to buy an anatomical skeleton for his office. Happily, his wife sympathized in his literary tastes, and, at once detecting the defects of his character, "urged him to overcome his almost constitutional indolence."

The French revolution, which ruined so many fortunes, made his. In 1791, he published a volume entitled "Vindiciæ Gallicæ, or, a Defense of the French Revolution and its English Admirers against the Accusations of the Rt. Hon. Edmund Burke." The very title-page immediately carried off the first edition, and the acute reasoning, brilliant declamation, and classic style of this vigorous but immature production gave currency to three editions at the end of four months. There was a great deal of heady strength in both these essays. Mackintosh's was like a river sweeping to the ocean, covered with sparkling foam. Burke's like the long, heavy swells of that ocean, whose crests are pelted by the winds and dance in the sun. Both authors set up for prophets; and, like other inspired and less famous men, they mistook the illusions of their fancy and the suggestions of their imagination for the visions of the seer and the teachings of the divine inflatus. Burke was nearer right as to the result of the then pending revolution; but Europe would now account Mackintosh the best prophet. This volume gave Mackintosh an introduction to Fox and the other Whig chiefs, and he became their warm friend. Soon after, falling into the captivating society of Burke, his teachings combined with the sanguinary turn of French affairs to considerably modify the views put forth in his Vindiciæ.

Throwing physic to the dogs, Mackintosh entered Lincoln's Inn, and was called to the bar in 1795. But, though the study of the law was more congenial to his tastes than medicine, his practice in his new profession was scarcely more extensive than in the old. In truth, he was too indolent, too desultory in his efforts, too fond of literature and abstract speculation, to excel in any pursuit requiring close application and orderly habits, rendering his whole life a series of brilliant but mere inchoate performances. In 1798, he proposed to deliver a series of lectures in Lincoln's Inn, on the Law of Nature and of Nations. The doors were closed against him, because of his supposed Jacobinical principles—the Benchers of that conservative corporation not wishing to have the doctrines of the Vindiciæ Gallicæ promulgated in their halls. Mackintosh published his introductory lecture to refute the charge of Jacobinism, and it was so tinctured with Burkeism, and so philosophical and eloquent, that it captivated Pitt, who persuaded the Chancellor to recommend the opening of the Inn. It was done, and Mackintosh entranced a learned audience throughout his gorgeous course.

His next attractive performance was the defense of Peltier, a French refugee, the editor of the Ambigu, for an alleged libel on Napoleon, the First Consul. His oration (for it partook little of the character of a speech at the bar) in vindication of the liberty of the press was pronounced by Lord Ellenborough, the chief justice, to be the most eloquent address ever delivered in Westminster Hall. Madame de Stael sent it through Europe in a French translation, and it secured for its author a continental reputation. And in our day and country it is read by thousands who have hardly heard of any other production of his tongue or pen. His lectures and his oration not only gave him celebrity, but, what he needed quite as much, a little money; and they brought him an offer of a judicial station at Bombay. Still pressed by pecuniary embarrassments, after much reluctance, he consented to be banished, with his wife and children, from his native land, to an inhospitable clime amongst a strange people. For nearly eight years he discharged his judicial duties with fidelity, but through every month of those years he sighed for his country and its healthy breezes, his associates and their brilliant society. He relieved the tedium of his expatriation by making some researches into Oriental institutions, by founding a literary club at Bombay, and by indulging, in his desultory way, in classical and philosophical pursuits. His study and administration of the criminal laws of India turned his attention to the subject which occupied so large a share of his subsequent Parliamentary life—the penal code of England.