It was, however, in the administration of the criminal law that the harsh temper of the times reached its zenith. Both as regards procedure and penalties, justice then dealt hardly indeed with persons accused of crimes. In cases of felony, for instance, the prisoner could not, down to 1836, be defended by counsel, and had, therefore, to speak for himself. Now think what this meant! The whole proceedings, from arrest to judgment, were—for the matter of that they still are—highly artificial and technical. The prisoner, often poor and uneducated, was generally unaccustomed to sustained thought. The indictment, which was only read over to him, was often almost interminable in length, with a separate count for each offence, and all the counts mixed and varied in every way that a subtle ingenuity could suggest. Defences depended as largely for their success upon the prisoner taking advantage of some technical flaw (which, in many cases, had to be done before pleading to the indictment), as upon his establishing his innocence upon the facts. But what chance had an illiterate prisoner of detecting even a fundamental error when he was not allowed a copy of the document? In fact, in the words of Mr. Justice Stephen, the most eminent living authority upon the history of our criminal law,’ it is scarcely a parody to say that from the earliest times down to our own days the law relating to indictments was much the same as if some small proportion of the prisoners convicted had been allowed to toss-up for their liberty.’

There might, further, be the grossest errors of law, as laid down by the judge to the jury, or of fact upon the evidence, without the prisoner having any remedy. Neither the evidence nor the judge’s directions appeared upon the face of the ‘record,’ and it was only for some irregularity upon the record that a writ of error would lie. A curious practice, however, gradually sprang up, whereby substantial miscarriage of justice was often averted. If a legal point of any difficulty arose in any criminal case heard at the Assizes, or elsewhere, the judge respited the prisoner, or postponed judgment, and reported the matter to the judges. The point reserved was then argued before the judges by counsel, not in court, but at Serjeants’ Inn, of which all the judges were members. If it was decided that the prisoner had been improperly convicted, he received a free pardon. It was this tribunal which was in 1848 erected into the Court for Crown Cases Reserved.

The outcry against capital punishment for minor felonies was still in full blast. The history of this legislation is extremely curious. The value of human life was slowly raised. It had, thanks to the noble efforts of Sir Samuel Romilly, ceased to be a capital offence to steal from a shop to the amount of 5s.; but public opinion was still more enlightened than the laws. A humane judge compelled to pass sentence of death upon a woman convicted of stealing from a dwelling-house to the value of 40s., shocked when the wretched victim fainted away, cried out, ‘Good woman, good woman, I don’t mean to hang you. I don’t mean to hang you. Will nobody tell her I don’t mean to hang her?’ Jurors perjured themselves rather than subject anybody to this awful penalty. In 1833 Lord Suffield, in the House of Lords, declared, ‘I hold in my hand a list of 555 perjured verdicts delivered at the Old Bailey in fifteen years, for the single offence of stealing from dwelling-houses; the value stolen being in these cases sworn above the value of 40s. but the verdicts returned being to the value of 39s. only.’ Human life was, then, appraised at 5l. But juries were equal to the occasion. Disregarding the actual amount stolen, they substituted for the old verdict ‘Guilty of stealing to the value of 39s.’—‘Guilty of stealing to the value of 4l. 19s.’ Here is an illustration. A man was convicted at the Old Bailey of robbing his employers to the amount of 1,000l. The evidence was overwhelming. Property worth 200l. was found in his own room; 300l. more was traced to the man to whom he had sold it. The jury found him guilty of stealing to the amount of 4l. 19s. He was again indicted for stealing 25l., and again convicted of stealing less than 5l. In the remaining indictments the prosecutors allowed him to plead guilty to the same extent. In the same way, for years prior to 1832, when the death penalty for forgery was abolished—except in the cases of wills and powers of attorney relating to the public funds—juries refused to convict. ‘Prisoner at the bar,’ said Chief Baron Richards to a man acquitted at Carnarvon Assizes for forging Bank of England notes, ‘although you have been acquitted by a jury of your countrymen of the crime of forgery, I am as convinced of your guilt as that two and two make four.’ And the jury privately admitted that they were of the same opinion. In short, the severity of the penal code was a positive danger to the community. Professed thieves made a rich harvest by getting themselves indicted capitally, because they then felt sure of escape. The sentence, moreover, could not be carried out. It became usual in all cases except murder to merely order it to be recorded, which had the effect of a reprieve. Here are some figures. In the three years ended December 31, 1833, there were 896 commitments in London and Middlesex on capital offences and only twelve executions. In 1834, 1835, and 1836 there were 823 commitments and no executions. With the first year of the Queen a more merciful régime was begun. Six offences—forgery in all cases; rioting; rescuing murderers; inciting to mutiny; smuggling with arms; and kidnapping slaves—were declared not capital. But it was not until 1861 that all these blots were finally erased from the Statute Book.

Among other mediæval barbarities, the dissection of a murderer’s body was not abolished until 1861, but it was made optional in 1832. Hanging in chains was done away with in 1834. The pillory, a punishment limited to perjury since 1816, was altogether abolished in 1837. The stocks had been generally superseded by the treadmill ten years earlier. Common assaults and many misdemeanours were, on the other hand, much more leniently dealt with in those days than they are in our own. As late as 1847 a case occurred in which a ruffian pounded his wife with his fists so that she remained insensible for three days. Yet, since he used no weapon, he could only be convicted of a common assault and imprisoned without hard labour.

But it was not perhaps an unmixed evil that the powers of the magistrates were then very limited. The ‘Great Unpaid,’ as they were then universally known, were a bye-word. Their proceedings, both at Petty and Quarter Sessions, were disgraced by ignorance, rashness, and class prejudice. Summary jurisdiction was then, fortunately, only in its infancy.

CHAPTER XIX.
CONCLUSION.

The consideration of the country as it was would not be complete without some comparison with the country as it is. But I will make this comparison as brief as possible.

In the Church, the old Calvinism is well-nigh dead: even the Low Church of the present day would have seemed, fifty years ago, a kind of veiled Popery. And the Church has grown greater and stronger. She will be greater and stronger still when she enlarges her borders to admit the great bodies of Nonconformists. The old grievances exist no longer: there are no pluralists: there is no non-resident Vicar: the small benefices are improved: Church architecture has revived: the Church services are rendered with loving and jealous care: the old reproaches are no longer hurled at the clergy: fat and lazy shepherds they certainly are not: careless and perfunctory they cannot now be called: even if they are less scholarly, which must be sorrowfully admitted, they are more earnest.