On the whole, there is no exaggeration in saying that, at the dawn of the nineteenth century, England was passing through an epoch of criminality darker than any other in her annals; the resurrectionist atrocities of Burke and Hare, the more inhuman villanies of Williams and Bishop the cold-blooded depravity of Vaughan and his accomplices, and the other lurid crimes which belong to this age, surpass in enormity anything before or since.
Such then was the desperate state of society at the dawn of the century. What arrangements did the country make to protect itself against the consequences of this accumulation of crime? What organization was provided for the enforcement of order, and for the protection of life and property? For its first line of defence England trusted to the supposed deterrent effect of a rigorous penal code; the more humane and effectual method, prevention, being lost sight of in the mistaken belief that it was possible to extirpate crime by the severity with which it was punished, a belief that survived in face of the fact, that as punishment increased in bitterness, so did offences grow in frequency and in violence.
The penal laws were written in blood. Colquhoun estimated that there were 160 different offences which were punishable by death, without benefit of clergy: a man could be hanged for larceny from the person if the value of the article stolen was more than one shilling: Townsend stated before the parliamentary commission of 1816, that he had known as many as forty people hanged in one day: on another occasion seven persons, four men and three women, were convicted at Kingston of being concerned in robbing a pedlar, "they were all hanged in Kent Street, opposite the door." Such indiscriminate infliction of the extreme penalty of the law could serve no useful purpose,[163] on the contrary it undoubtedly aggravated the very offences it was intended to check. The punishment for a trivial theft being identical with that meted out for the most heinous crime, all sense of proportion in the different degrees of moral guilt was lost. "As well be hanged for a sheep as for a lamb" represented a point of view not unnatural under the circumstances, and expressed the actual mental attitude of the average criminal.
It can easily be demonstrated that an inverse ratio exists between the efficiency of police and the severity of sentences.[164] The more difficult the commission of crime is made, the less necessity will there be for deterrent measures that savour of vindictiveness. The intimate knowledge that an effective police have of the habitual criminal class is not only a safeguard against the conviction of the innocent, but renders it possible to deal leniently with the juvenile, and with the casual, offender. Within reasonable limits, the fear of almost certain detection is a far stronger deterrent than the distant prospect of severe punishment. Sir Samuel Romilly speaking in the House of Commons in 1810 said, "if it were possible that punishment, as a consequence of guilt, could be reduced to an absolute certainty, a very slight penalty would be sufficient to prevent almost every species of crime, except those which arise from sudden gusts of ungovernable passion. If the restoration of the property stolen, and only a few weeks, or even but a few days imprisonment, were the unavoidable consequence of theft, no theft would ever be committed. No man would steal what he was sure he could not keep."
Romilly made strenuous efforts to persuade the government to reduce the number of offences punishable by death, but without immediate success. Sir James Mackintosh followed in his footsteps, and in 1822 proposed to the House that measures should be adopted "for increasing the efficiency of the Criminal Law by mitigating its vigour." It is worthy of remark that, at this time, Peel opposed the principles advocated by Mackintosh and Romilly, though seven years afterwards he was the author of the Act that gave effect to a part of Romilly's ideal, "a vigilant and enlightened police, and punishments proportioned to the offender's guilt."
The savage rigour of the penal code defeated its own ends in many ways. People would not give evidence that might condemn a man to such barbarous treatment; juries would not always convict, even when the evidence was perfectly clear.
Consequently the law often became a dead letter, and the prospective criminal had many inducements to tempt him to break it; for, in the first place, he probably would never be caught; and in the second place, the chances were, that the jury would evade the responsibility of giving a verdict, that might lead to a sentence, that would be an outrage to their humanity.
With crime so increasingly prevalent, there might have been some justification for great severity of punishment, if it had been found by experience that strong repressive measures had invariably been followed by a permanent reduction in the number of criminals; but this is not the lesson that history has taught. It is true that exceptional cases have arisen from time to time in which signal severity meted out to a prominent offender has proved the safest and best course. Prompt and exemplary punishment, even in excess of his deserts, inflicted on a ringleader, has often been the only way to enforce discipline or to prevent the spread of dangerous mutiny; but such cases are rare, and owe their success as deterrents to their rarity, and to the attention that they excite at the time; whereas a consistent course of excessive severity has never been a lasting success, unless combined with powerful preventive measures,[165] and then such a course is no longer necessary. Highway robbery and sheep-stealing were common when they were capital offences, now they are seldom heard of, and the thieving that invariably went on at the foot of the gallows was sufficient proof that the popular belief in the deterrent value of public executions was a popular fallacy.[166]
The futile cruelty of the frequency with which capital punishment was inflicted was equalled if not exceeded by the manner in which the secondary punishments were administered. Transportation was introduced[167] in the reign of Charles II., but at first was not, strictly speaking, a legal punishment, but rather an exercise of the royal clemency towards those in "the King's Mercy"; and it may be said to have taken the place in the social scheme of the old system of outlawry which, in former times, enabled a capital felon to save his life by abjuring the realm.
Labourers were required to develop the resources of America and the West Indies, and to this end criminals under sentence of death were often pardoned on the understanding that they transported themselves to those colonies. Several convicts, however, were clever enough to secure the pardon and yet avoid fulfilment of the condition on which it was granted. By 1717 so many of these persons were at large, that arrangements were made[168] by which felons were to be kept in prison until they could be handed over to agents, who were required to give security that the undesirables in question were really deported. Fifty years later the practice of transportation was common, and had come to be esteemed as an easy and profitable means of getting rid, once and for all, of offenders caught transgressing the laws made by society for its protection. Though called transportation the system really amounted to perpetual slavery; it could nominally be inflicted for fourteen years, but was almost invariably for life. The convicts were handed over to contractors at so much a head, and shipped off to America to work on the plantations: many died on the voyage, thus reducing the profits of the traffic; in fact a Bristol contractor complained that if another plague broke out on his ship he would have to give up the business. To prevent this waste, an Act was passed in 1767[169] which provided that, for the future, contractors should take the convicts immediately they were sentenced, for fear that they should deteriorate during their sojourn in prison, and consequently fetch less money.