The severity of the punishment, which at present attaches to crimes regarded by mankind as of an inferior nature, and which affect property in a trivial manner, is also deserving the most serious attention. It is only necessary to be acquainted with the modern history of the criminal prosecutions, trials, acquittals, and pardons in this country, in order to be completely convinced that the progressive increase of delinquents, and the evils experienced by Society from the multitude of petty crimes, result in a great measure from this single circumstance.
It will scarcely be credited by those, whose habits of life do not permit them to enter into discussions of this sort, that by the Laws of England, there are above one hundred and sixty different offences which subject the parties who are found guilty, to death without benefit of Clergy. This multiplicity of capital punishments must, in the nature of things, defeat those ends, the attainment of which ought to be the object of all Law, namely, The Prevention of Crimes.
In consequence of this severity, (to use the words of an admired Writer,) "The injured, through compassion, will often forbear to prosecute: Juries, through compassion, will sometimes forget their oaths, and either acquit the guilty or mitigate the nature of the offence: and Judges, through compassion, will respite one half the convicts, and recommend them to Royal Mercy."[2]
The Roman Empire never flourished so much as during the æra of the Portian Law, which abrogated the punishment of death for all offences whatsoever. When severe punishments and an incorrect Police were afterwards revived, the Empire fell.
It is not meant, however, to be insinuated that this would be, altogether, a proper system of Criminal Jurisprudence to be adopted in modern times.
In the present state of society it becomes indispensably necessary, that offences, which in their nature are highly injurious to the Public, and where no mode of prevention can be established, should be punished by the forfeiture of life; but these dreadful examples should be exhibited as seldom as possible: for while on the one hand, such punishments often defeat the ends of Justice, by their not being carried into execution; so on the other, by being often repeated, they lose their effect upon the minds of the People.[3]
However much we glory (and we ought to glory) in the general excellence of our Criminal Law, yet there is no truth more clear and obvious than this:—"That this code exhibits too much the appearance of a heterogeneous mass, concocted too often on the spur of the occasion (as Lord Bacon expresses it):—and frequently without that degree of accuracy which is the result of able and minute discussion, or a due attention to the revision of the existing laws; or how far their provisions bear upon new and accumulated statutes introduced into Parliament; often without either consideration or knowledge, and without those precautions which are always necessary, when laws are to be made which may affect the property, the liberty, and perhaps even the lives of thousands."
Some steps have indeed, been taken in Parliament, since this work first appeared, towards a general revision of our Statute Law;[4] and which, it is hoped, will ere long be adopted. Whenever the time shall arrive that the existing laws, which form the present Criminal Code, shall be referred to able and intelligent men effectually to revise, consolidate, and adjust the whole, in a manner best suited to the present state of Society and Manners, the investigation will unquestionably excite no little wonder and astonishment.
Penal laws, which are either obsolete or absurd, or which have arisen from an adherence to rules of Common Law when the reasons have ceased upon which these rules are founded; and in short, all Laws which appear not to be consonant to the dictates of truth and justice, the feelings of Humanity, and the indelible rights of Mankind should be abrogated and repealed.[5]