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178

The State of the Criminal Law.

view of showing the inefficiency of the pu-was defeated, although the arguments in favor nishment of death to restrain crime, and of his measure far outweighed the appeals for falls in, therefore, with the present fashion-ancient usages and the expressions of indig

nation against traitors, which were sounded on able opinions on the subject. The facts

the other side of the house. But in the folappear to us well digested; and with some

lowing year, he again brought forward his bill, of the author's conclusions we agree. Thus, and though sadly mutilated by an amendment, speaking of the punishment for treason, he which is now the law of the land, the system says:

of embowelling and of other cruelties was for "We will advert for a moment to the pu- ever extinguished in law, as it had been before nishment incident upon a conviction of high in practice The remainder of this history is treason, not for the sake of exposing its bar- soon told. The executioner was now empower. barities, but because the consideration of ited to hang, to behead, and to quarter the body, may assist us when we come to suin up the re- thus divided, to be at his Majesty's disposal. sults of its severe infliction.—The following In the case of Brandreth and others, who died seems to be the ancient judgment : “ To be at Derby, the Prince Regent mitigated the pe. drawn through the middle of the city to Ty-nalty to hanging and beheading; and when burn, and there hanged by the neck;" then, Thistlewood, Ings, and their party were put to before death. to have the heart cut out the death at the Old Bailey, his late Majesty made head cut off, and the body divided into four a similar order, and both the heads and bodies parts, to be at the king's disposal. The mercy were forthwith privately buried. The good of succeeding generations did not increase. - sense of the legislature, it is to be hoped, will Until a late period, the sentence was, to be soon iinitate the spirit of these gracious redrawn on the hurdle, and hanged; to be cut missions, and erase from their statute book, down whilst alive, and to have the entrails at least, every accompaniment of death.”_ taken out and burnt before the offender's face; 1 pp. 58–60. his head to be then cut off, and body quartered,

1 We fully concur in this hope; no good both head and body to be at the King's dis

end would be answered by the brutal mangposal. Townley was treated in this manner after the rebellion of 1746; but the executioner ling of a traitor's body, either before or after had the humanity to dispatch him before the death. The author's conclusions as to embowelling. The punishment of women was, smuggling are, however, much less satisto be drawn to the place of execution, and factory, as it appears to us he arrives at a burnt. Thus stood the law until the year 1788 result the

180 result the very reverse from that which he as to females, and until 1814 as to males. Not that the sentence was invariably executed with

wishes to prove. rigour. In Townley's case, the executioner “The laws against smuggling afford us a destroyed life before his operations. The cus. very remarkable instance of the gradual adtom of prerious strangulation had prevailed in vance and inefficacy of severity. As soon as the case of women before the alteration of the it became necessary to guard the revenue by a law; and, in the very first instance, the strict course of proceeding more methodical and law of dragging a man along the pavement had consistent than had been the usage amongst been exchanged for drawing him on a hurdle. our despotic monarchs of old times, it was At length, in 1788, a distressing scene occur- soon observed that the vice of smuggling must red in London, at the execution of a woman, be repressed. At first, however, the legislawho fainted when brought to the stake; and ture was content with prescribing forfeiture of the penalty was immediately changed to draw the uncustomed goods, as a penalty for a breach ing and hanging. The sentence, however, of the new laws. And accordingly, the statutes touching males, continued. In 1803, the words of Charles II. and Queen Anne declared, that “ but not until you are dead,” were repeated the illicit goods, and sometimes the ship, to Despard and his associates : they were to be should be confiscated. Smuggling, however, taken down again, and to undergo the savage increased, and the ordinary complaint of the mangling permitted by the old law. But his day was, that the free trader sustained the Majesty remitted the sentence, except hanging most vexatious injuries. It was then resolved and beheading; and a similar prohibition that the pains of felony should succeed, and against anatomy has been issued ever since, by that transportation should be the punishment the command of the sovereign. For, although for the illegal assemblies which had been prothe law sustained an alteration in 1814, the ductive of so much alarm and mischief. The quartering of the corpses of traitors was still chief contraband article at this period was tea; tenaciously maintained. Sir Samuel Romilly, and as we shall see presently, the profit acstruck with this, as well as many other sangui- quired by the smuggler was enormous. The nary ordinances, moved to moderate the pu: minister of the day acquiesced in the appeals nishment to hanging only, the offender being which were made to him for protection; and so previously drawn to the scaffold. At first he convinced was he, that he did not hesitate in

parliament to declare in favour of death or Capital Punishments in England, with Tables transportation. But,' said he, “as our goof Convictions, Executions, &c. By Humphryvernment always chooses to try first the mildW. Woolrych, of the Inner Temple, Barrister est method, therefore the latter method of at Law. Saunders and Benning. 1832. breaking these gangs is proposed by this bill."

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· The State of the Criminal Law.

179 Yet there were still some opinions on the side pounding their charter by indemnity. They of humanity and sound policy,—some who had discovered upon the production of acprobably foresaw the future triumph of those counts, that'smuggling still continued to a great qualities, who felt, that in proportion as much greater excess than could have been exa country approximates to severity, her moral pected when the act of the last session passed,' virtues must of necessity decrease. The bill, and they feared, probably, to impair the re. which only imposed transportation, was cha- venue at a time when both France and Spain racterized by the advocates for mildness, as had assumed a menacing attitude towards one of the most severe and dangerous ever them. The result, therefore, was this : the passed by a British legislature; and I am severity of capital punishment came into opeafraid,' said one of the speakers, it will be ration almost contemporaneously with a defar from answering the end. While our nu-crease of the tea duties. The question, then, merous high duties continue,' he added, as to the consequences of these provisions, • while there are such profits to be got by now remains for consideration; and, in order smuggling, it is in vain to expect we can en to elucidate the matter more clearly, we must, tirely prevent it by the most severe laws we as usual, have recourse to a few tables.'--pp. can make. They keep up (in France) a parti- 75, 76. cular sort of army called Les Maltotiers, for the

These tables we have not room for at purpose of preventing smuggling, yet smuggling is in that kingdom almost as frequent as lengti

mentas length. They do not, however, bear out in England, and their smugglers are much Mr. Woolrych's conclusions, as they only more desperate than ours; for they march in commence from the year 1747. As the little armies, are well. armed and disciplined, reasoning of the author on the subject, and often engage in battle with the custom- therefore ingeniously answers itself we house officers, and their guard of Maltotiers. I think we need not attempt to do so our. Notwithstanding this remonstrance, the act passed. This happened in 1736; and the

selves. phophecy against a decrease of smuggling was The following account of celebrated highsoon verified. Nine years had scarcely elapsed waymen is amusing; and the work throughbefore the whole nation was again in a state of lout displays considerable talent in arranging ferment. The formidable bands of men em barked in illicit traffic, so far from

and stating facts.

being broken, had become more strongly organized. “When Will. III came to the crown, a little The smuggler was an absolute nom de guerre ; in advance of that system of public credit which children were terrified at the mention of him, | has so long retarded the progress of civilizaand women fled to London, in order to escape tion, old Mobb, a most industrious labourer in the gangs. In this state of things, it was de- ! his vocation, was within a few months of his termined to legislate afresh, not with the mind final exit. Old Mobb was he who robbed of philosophy, but of anger and mistaken zeal. Judge Jefferies, as he was going to his country Two reports were made by a committee ap- seat. The hero of the western assizes had repointed by th, House of Commons, to in-course to morality, and talked about soul and quire into the causes of the most infamous body; but it was in the wrong place, for the practice of smuggling. Evidence was taken highwayman answered by shewing the weapon to a considerable extent, and it was ultimately with which he had shot two of his lordship's resolved, that the offence in question should servants, and so took fifty-six guineas without be punished with the most unrelenting rigour. more trouble. Mobb perished in 1690, being Accordingly, smuggling was made a capital convicted upon thirty-two indictments out of offence, and certain persons named as known thirty-six. He was succeeded, however, by contraband dealers were declared attainted as Whitney, and other famous roadsters, some dutlaws, unless they should surrender them- of gentle blood, others mere sons of idleness, selves within a given time. But it is necessary but chiefly“ miserable hardened wretches," to add, that about the same time, the duty on as the poor Ordinary used to call them, when tea was lowered exactly one half, and a percep- all his means of exhausting their impenitence 'tible decline in smuggling transactions was ob- had been eked out. Robbing the mail was now

served even before the passing of the new laws. | becoming very usual; in fact, it signified · Now it was in evidence before the committee, little to the freebooter where his plunder lay, that the tea consumed in England amounted provided he had a good horse. And about this to 4,000,000 of pounds annually, and that time also, Turnham Green, Hounslow Heath, 3,000,000 had been regularly run or smuggled. and Bagshot, began to acquire that celebrity

It was also, shewn that a further reduction for which they were so long afterwards disof 6d. per pound would so diminish the gains tinguished. I hope,' says a writer of these of the smugglers as to lessen the practice ma- times, the honest part of the soldiery will terially. Indeed, some persons who had been forgive me, if I think we have many incorpo.concerned in the contraband trade, did not rated in their companies, as fit for the triple hesitate to affirm that the business would be tree as any that have graced that structure for altogether extinguished by such a reduction. a great while.' And he then goes on to say But the parliament did not think fit to make that idleness is the mother of mischief. This this last reduction. They contented themselves circumstance, combined with the consequences with passing their capital enactment, and pro-l of a disbanded soldiery, cannot be too much

180

State of the Criminal Law. A Speech of a Lord Chancellor in 1834.

considered in legislating upon the offence of robbery. It is not necessary for us to dwell upon A SPEECH WHICH WILL BE DEthese reigns. It may be observed, however, that LIVERED BY A LORD CHANCEL.. executions for robbery were most frequent; that LOR. IN THE YEAR 1834 it was not uncommon to charge a man with eight or ten indictments; that it was quite customary to hang daring thieves in chains ; | My LORDS,-- In introducing the bill which and mercy was so little thought of, that the I have the honor to lay before your lord. slightest aggravating fact was sufficient to en-I ships. I think it right in me to utter a sure the warrant for execution, even when it

few sentences, more in fact for form sake, had been intended to grant a reprieve. At length, in 1730, in the midst of the peace,

than from any necessity which exists for matters assumed a very threatening aspect :

vindicating the measure now before you. “ Thieves and robbers were now become more It is simply a short bill“ for the Abolition desperate and savage than ever they had ap- of Attorneys, Solicitors, Barristers, Judges, peared since mankind was civilized. In the and other Vermin.” Now, my lords, any exercise of their rapine, they wounded, maim

one of you possessing the smallest possible ed, and even murdered the unhappy sufferers

quantity of discernment-even my noble through a wantonness of barbarity." The pe- quan riodicals of those days also propagated the and learned friend now on my left, or the alarm. Gangs of rogues used to rush into noble marquis in my eye-not that I mean houses masked, and there they would commit for one moment to say that they have not great outrages, so that there was a reign of both of them, jointly and severally, a great terror. Notwithstanding the number of cri- deal of discernment; much more, indeed, minals condemned at the Old Bailey,' said Mr. I than the humble individual now addressing Urban (Gent. Mag. 1735, p. 162), "street robbers and house-breakers abound and are very

you—more particularly when their own in. numerous.' This was immediately after the terest is concerned ;--but all that I mean hanging of several robbers at Tyburn, attended to say is, that a child of three years old, and by a guard of fifty soldiers. Smollett was not much more the noble marquis, could not far from the mark when he attributed this state fail to see that the present bill is but a ne. of things to degeneracy, corruption, and the

cessary consequence of the other measures want of police in the internal part of the king

which I have introduced, and of which the dom.' Accordingly, the evil went on. In 1737, Turpin, the famous man of that name,

country is now enjoying the benefit. Therecommitted a robbery per diem, and terrified fore, my lords, if you have agreed to those the citizens of London exceedingly by saying, bills, you are bound, having regard to your that he wanted to kill two men, and then he own well-being, and to prevent evil-speakshould not inind being taken; and very soon ing, and the lowering of your lordships afterwards there was another congregation of house in public estimation, to vote for the the most formidable gangs. In 1751, it was acknowledged that travelling on the highways

present bill; otherwise you will see, my was very hazardous, and that it was almost un

lords, that myself and the public, who have safe to walk the streets; and, even at that day, seen that this would be the consequence of people were not wanting who said, that it was the late measures, will think that they and

surely a vain attempt to put a stop to such I are wiser than the wisest, more clear crimes by the halter ;' and arguing with much sighted than the most clear sighted ;— they sense, they admitted their ignorance of the will say that your lordships, forming, as true cause of the distemper. Think of our

you undoubtedly do, a body the most illuspersevering obstinacy in 1832! The seven years' war, which began in 1756, diverted the

trious for intellect, foresight, and genius, public attention from the causes of the late in

besides boundless wealth, power, and increase of robbers, because the evil was never fluence,- they will say that you could not see felt so much during the campaigns with France. what they saw,—what the least consider. . But the country had no sooner returned to able person in the kingdom could see,-a peace, than the mischief broke out more I paviour perhaps, yes. or a paviour's assiststrongly than ever, and with it the most urgent

mant, or some such person,- thereby shewing enquiries into its origin. Hanway, who wrote about this time, declared that he had lived un

a marvel to the world, that a paviour could der the most despotic governments of Europe see better than a lord ; aye, or a lord marand Asia, yet he was free from violence and quis. I have shewn therefore, my lords, the dread of robbery. •Here,' says he, 'I am that if you have any wish to stand well with not so happy: the caution with which it is ne- the country, and have no wish to fall and cessary to live, is the heaviest tax I ever paid | be smitten under the paviour's hammer, or in any country. I cannot return to my home, I the auctioneer's hammer, or some such im. not even in my chariot, without danger of a

plement, you will do well to agree to this pistol being clapped to my breast.'”

bill. Well, my lords, what is this bill? Nothing can be simpler, except, perhaps,

Speech of a Chancellor.New Bills in Parliament : Law of Debtor and Creditor. 181 the noble marquis. We all know that I shall we enjoy our own good things; or to use lawyers are vermin. I have always called a familiar adage, with which a noble Earl, a them so in private, and in public also, since friend of mine, is well acquainted," the fewI have had the honor of addressing your er the better cheer." Thus, my lords, have lordships; and you should give me some I fully vindicated the present measure, if credit when I remind you I am a lawyer vindication were needed, which it is not ; myself. I have lived all my life with them, and if your lordships agree to this, I shall but I have done with them now; they were only make one more proposition to you my ladder, my lords,--that is, my ladder that is, I should say, two more proposi. of ascent-mark the difference - not my tions- in which, God knows, I have not ladder of descent-I have no intention of my own interest in view: the first and going down again ; and mark this also, that foremost being a bill “to vest the AppointI have no intention of letting any one else ment of all future Lawyers in the Lord High get up; so, my lords, down goes the ladder, Chancellor;" and the last and lastmost (if which was, I assure you, a most rotten one, there be such a word) being a bill“ for and decayed in all its parts. I had in fact creating the humble individual addressing some awkward slips from it, but it has you Perpetual Lord High Chancellor.” lasted my time; although, with my goodwill, it shall last no longer. Therefore,

+*+ my lords, and for these sufficient reasons to me, much thinking of these things, I am resolved to abate the nuisance altogether, NE

cether NEW BILL FOR THE AMENDMENT and have brought in the present measure,

OF THE LAW OF DEBTOR AND for which there is good authority; for if I

CREDITOR. hate one thing more than another, it is in

[Continued from p. 153.] novation and experiments, as I have always told your lordships. The fact is, there is a

Official Assignees. precedent for the very plan I have now introduced; and if antiquity smelleth sweet chants, brokers, or accountants, shall be chosen

27. That a number of persons, being merin your lordships' nostrils, it will be, beyond by the Lord Chancellor to act as official ascompare, savory and sweet smelling. In signees in all cases of such petitions, one of the reign of one of the Saxon kings-which which said official assignees shall in all cases I forget, nor does it matter one penny

be an assignee of such petitioner's estate and piece-it was enacted, that any one might

effects, together with the assignee or assignees slay a lawyer or a wolf, the reward, or

to be chosen by the creditors, such Official

assignee to give such security to be subject to head-money, being much larger for the such rules to be selected for such estate, and former noxious animal. So that you see, to act in such manner as the aforesaid commy lords, here is an exact precedent in missioner shall from time to time direct ; the point, except as to the mode of the death : personal estate and effects and the rents and the slaying contemplated by the Saxon bill profits of the real estate, and the proceeds of was either by hanging or wounding to the

sale of all the estate and effects, real and per

sonal, of the petitioner, shall in every case be death, or possibly decapitating; or accord.

received by such official assignee alone, save ing to others, shooting with arrows; or as | when it shall be otherwise directed ; and all later writers have it, leaving two of these stocks in the public funds, or of any public lawyer-animals together, in which case, ac- company, and all monies, exchequer bills, cording to these latter authorities, it was in- indentures, bonds, or other public securities, variably found they destroyed one another:

| and all bills, notes, and other negotiable inthus not aiming at a pigeon and killing a crow;

struments, shall be forthwith transferred, debut at one blow killing two crows, or rooks,

livered and paid by such official assignee into

such bank as the said commissioners shall or any other name which ornithology supplies

nology suppoes direct ; and if any such assignee shall neglect for a cruel destructive bird of prey, feeding to make such transfer, delivery, or payment, on his innocent neighbour's substance. My every such assignee shall be liable to be charged bill, my lords, however, prescribes but one in his accounts with such sum as shall be mode of death-viz. that of sheer starva- equal to interest at the rate of twenty per cention; which, after mature reflection. I think tum per annum, on all such money for the

time during which he shall have so retained the best suited to their own offences. They

| the same : Provided always, that until assigstarved their clients; let them now be

nees shall be chosen by the creditors of each starved themselves. I have provided for person so petitioning, such official assignees myself and friends, and the more thin and so to be appointed to act with the assignees to emaciated all other lawyers become, the more be chosen by the creditors of each person so

N 3

182, . . New Bills in Parliament: Law of Debtor and Creditor. petitioning shall be enabled to act, and shall | 31. That when any person shall have prebe deemed to be to all intents and purposes sented his petition as aforesaid, all his personal whatsoever a sole assignee of the estate of each estate and effects, present and future, shall person so petitioning as aforesaid.

become absolutely vested in and transferred to Assignees of Petitioning Debtor's Estate.

the assignees or assignee for the time being,

by virtue of their appointment; and as often 28. That at the

meeting appoint-I as any such assignee shall die, or be lawfully ed by such commissioner, or any adjourn removed, and a new assignee duly appointed, ment thereof, assignees of the petitioning | all such personal estate as was then vested in debtor's estate and effects shall be chosen to such deceased or removed assignee, shall, by act with the official assignee, and all creditors virtue of such appointment, vest in the new who have proved debts to the amount of ten assignee, either alone or jointly with the expounds and upwards, shall be entitled to vote isting assignees, as the case may require, in such choice; and also any person autho- without any deed of assigninent for that purrised by letter of attorney from any such cre- pose ditor or creditors, upon proof of the execution 32. That when any person shall have filed thereof, either by affidavit sworn before as his petition as aforesaid, all his present and Master in Chancery, ordinary, or extraordi- future real estate, whether in the United nary, or by oath before

and Kingdom of Great Britain and Ireland, or in in case of creditors residing out of Eng- any of the dominions, plantations, or colonies land, by oath before a magistrate where the belonging to his Majesty, shall rest in such party shall be residing, duly attested by a persons, assignee or assignees for the time, by notary public, British minister or consul, and virtue of his or their appointment, without the choice shall be made by the major part in any deed of conveyance for that purpose ; and value of the creditors so entitled to vote; pro as often as any such assignee or assignees shall vided that such commissioner shall have power die, or be lawfully removed or displaced, and to reject any person so chosen who shall appear a new assignee or assignees shall be duly apto him unfit to be such assignee as aforesaid, pointed, such of the aforesaid real estate as and upon such rejection a new choice of shall remain unsold or unconveyed, shall, by another assignee or assignees shall be made as virtue of such appointment, vest in the new aforesaid.

assignee or assignees, either alone or jointly 29. That in case any assignee of the estate with the existing assignees, as the case may and effects of any petitioner so appointed as | require, without any conveyance for that puraforesaid, shall be unwilling to act, or in case

pose. of the death, incapability, disability, miscon

Transfers of Property. duct, or absence from the realm of any such 33. That where according to any laws now assignee, it shall be lawful to and for any in force, any conveyance or assignment of any creditor or creditors of such petitioners to real or personal property of such debtor would apply to the said commissioners to appoint a require to be registered, inrolled, or recorded new assignee or assignees, with like powers in any registry office in England, Wales, or and authorities as are given by this Act to the Ireland, or in any registry office, court, or assignee or assignees hereinbefore mentioned ; other place in Scotland, or any of the domiand that the said commissioner shall have nions, plantations, or colonies belonging to power to remove such assignees and to ap- his Majesty, that in every such case such cerpoint such new assignee or assignees, and to tificate as hereafter is described of the appointcompel any assignee who shall be so removed, I ment of an assignee or assignees shall be reand the heirs, executors, or administrators of gistered in the registry office, court or place any deceased assignee, to account for and de- wherein such conveyance or assignment as last liver up to the said court, or as the said aforesaid would require to be registered, incourt shall order, all such estate and effects, rolled, or recorded, and the registry hereby books, papers, writings, deeds, and other directed shall have the like effect to all intents evidences relating thereto, as shall remain in and purposes as the registry, inrolment, or his or their bands, to be applied for the pur- record of such conveyance or assignment as poses of this Act.

last aforesaid would have had ; and the title of 30. That whenever such assignee or assig- any purchaser of any such property as last nees shall die or be removed, or a new as- aforesaid for valuable consideration, filing the signee or assignees shall be appointed in pur- petition, who shall have duly registered, insuance of the provisions of this Act, no action rolled, or recorded the purchase deed previous at law or suit in equity shall be thereby abated, to the registry hereby directed, shall not be but the court in which any action or suit is invalidated by reason of such appointment of depending, may, upon the suggestion of such an assignee or assignees as aforesaid, or the death or removal and new appointment, allow vesting such property in him or them consethe name or names of the surviving or new quent thereupon, unless the certificate of such assignee or assignees to be substituted in the appointment shall be registered as aforesaid place of the former ; and such action or suit within the times following (that is to say) as shall be prosecuted in the name or names of regards the United Kingdom of Great Britain the said surviving or new assignee or assignees, and Ireland, within two months from the date in the same manner as if he or they had origi. I of such appointment, and as regards all other nally commenced the same.

places, within twelve months from the date "thereof.

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