We constantly refer to the laws of Draco, the Archon of Athens, as a code of unequalled cruelty; under whose operation, crimes of the highest order, and the most trifling offences, were punished, with equal severity. Draco punished murder with death, and he punished idleness with death. The laws of England punished murder with death, and they punished theft, over the value of twelve pence, with death. What is the necessity of going back to the time of Draco, 624 years before Christ, for examples of inhuman, and absurdly inconsistent legislation?
The Marquis of Beccaria, in his treatise, De Delitti e Delle Pene, seems to have awakened legislators from a trance, in 1764, by propounding the simple inquiry—Ought not punishments to be proportioned to crimes, and how shall that proportion be established? A matter, so apparently simple, seems not to have been thought of before.
Sir Samuel Romilly, Sir James Mackintosh, and Sir Robert Peel are entitled to great praise, for their efforts to soften and humanize the criminal code of Great Britain.
The distinction, between grand and petty larceny, was not abolished, until 1827, when, by the act 7th and 8th Geo. IV. chap. 29, theft was made punishable by transportation, or imprisonment and whipping. By this statute, robbery from the person, burglary, stealing in a dwelling-house to the value of £5, stealing cattle, and sheep-stealing are made punishable with death. So that the punishment was, even then, the same, for murdering a man, and stealing a sheep, or £5 from a dwelling-house. Death, by this statute, was also the punishment for arson, for setting fire to coal mines, and ships; and for riotously demolishing buildings or machinery.
In the following year, 1828, by the act 9th Geo. IV. ch. 31, death is made the punishment, for murder, maliciously shooting, cutting and maiming, administering poison, attempting to drown, suffocate, &c., and for rape and sodomy. By this act, more than fifty statutes, relative to offences against the person, are repealed.
The act 11th Geo. IV. and 1st Will. IV. ch. 66, passed in 1830, abolishes capital punishment, in all cases of forgery, excepting forgery of the royal seals, exchequer bills, bank notes, wills, bills of exchange, promissory notes, or money orders, transfers of stock, and powers of attorney. Death remained the penalty for all these forgeries, in 1830, and, for all other forgeries, transportation and imprisonment.
Two years after, in 1832, another step was taken. By 2d Will. IV. ch. 34, capital punishment was abolished, and transportation and imprisonment substituted, for all offences, relative to the coin. This was a prodigious stride.
This gave us a great hope, that misguided murderers might finally be suffered to live in security, at least, from the halter: for no object had been of greater moment with the British nation, than the coin of the realm, and the death penalty had often been exacted from those, who had dared to clip or counterfeit that sacred representative of majesty. The principle is well established, that men, who fly from one extreme, in contraria currunt. We trusted, therefore, that extremely lenient legislation would supervene, upon its very opposite.
We had great confidence in a system of “indefatigable teasing,” as Butler calls it. In the same year, 1832, by 2d and 3d Will. IV. ch. 62, capital punishment was abolished, in cases of stealing from a dwelling-house to the value of £5, and sheep-stealing; and by the same act, ch. 123, capital punishment was abolished, in all cases of forgery, excepting in the cases of wills, and powers of attorney for stock.
In 1833, by 3d and 4th Will. IV. ch. 44, capital punishment was abolished in case of dwelling-house robbery; repealing so much of the larceny act of 1827.