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 falls in, therefore, with the present fashionable opinions on the subject. The facts appear to us well digested; and with some of the author's conclusions we agree. Thus, speaking of the punishment for treason, he says: We fully concur in this hope; no good end would be answered by the brutal mangling of a traitor's body, either before or after death. of his measure far outweighed the appeals for ancient usages and the expressions of indignation against traitors, which were sounded on the other side of the house. But in the following year, he again brought forward his bill, and though sadly mutilated by an amendment, which is now the law of the land, the system 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 empowerbarities, but because the consideration of it ed to hang, to behead, and to quarter the body, may assist us when we come to sum 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 pedrawn 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 imitate 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; pp. 58-60. his head to be then cut off, and body quartered, both head and body to be at the King's disposal. Townley was treated in this manner after the rebellion of 1746; but the executioner had the humanity to dispatch him before the embowelling. The punishment of women was, to be drawn to the place of execution, and burnt. Thus stood the law until the year 1788 as to females, and until 1814 as to males. Not that the sentence was invariably executed with rigour. In Townley's case, the executioner destroyed life before his operations. The custom of previous strangulation had prevailed in the case of women before the alteration of the law; and, in the very first instance, the strict law of dragging a man along the pavement had been exchanged for drawing him on a hurdle. At length, in 1788, a distressing scene occurred in London, at the execution of a woman, who fainted when brought to the stake; and the penalty was immediately changed to drawing and hanging. The sentence, however, touching males, continued. In 1803, the words "but not until you are dead," were repeated to Despard and his associates: they were to be taken down again, and to undergo the savage mangling permitted by the old law. But his Majesty remitted the sentence, except hanging and beheading; and a similar prohibition against anatomy has been issued ever since, by the command of the sovereign. For, although the law sustained an alteration in 1814, the quartering of the corpses of traitors was still tenaciously maintained. Sir Samuel Romilly, struck with this, as well as many other sanguinary ordinances, moved to moderate the punishment to hanging only, the offender being previously drawn to the scaffold. At first he The author's conclusions as to smuggling are, however, much less satisfactory, as it appears to us he arrives at a result the very reverse from that which he wishes to prove. "The laws against smuggling afford us a very remarkable instance of the gradual advance and inefficacy of severity. As soon as it became necessary to guard the revenue by a course of proceeding more methodical and consistent than had been the usage amongst our despotic monarchs of old times, it was soon observed that the vice of smuggling must be repressed. At first, however, the legislature was content with prescribing forfeiture of the uncustomed goods, as a penalty for a breach of the new laws. And accordingly, the statutes of Charles II. and Queen Anne declared, that the illicit goods, and sometimes the ship, should be confiscated. Smuggling, however, increased, and the ordinary complaint of the day was, that the free trader sustained the most vexatious injuries. It was then resolved that the pains of felony should succeed, and that transportation should be the punishment for the illegal assemblies which had been productive of so much alarm and mischief. chief contraband article at this period was tea; and as we shall see presently, the profit acquired by the smuggler was enormous. The minister of the day acquiesced in the appeals which were made to him for protection; and so 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.' The The State of the Criminal Law. 179 These tables we have not room for at length. They do not, however, bear out Mr. Woolrych's conclusions, as they only commence from the year 1747. As the reasoning of the author on the subject, therefore, ingeniously answers itself, we think we need not attempt to do so our selves. The following account of celebrated highwaymen is amusing; and the work throughout displays considerable talent in arranging and stating facts. 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 rewhich 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 purpose of preventing smuggling, yet smug gling is in that kingdom almost as frequent as in England, and their smugglers are much more desperate than ours; for they march in little armies, are well armed and disciplined, and often engage in battle with the customhouse officers, and their guard of Maltotiers. Notwithstanding this remonstrance, the act passed. This happened in 1736; and the phophecy against a decrease of smuggling was soon verified. Nine years had scarcely elapsed before the whole nation was again in a state of ferment. The formidable bands of men embarked in illicit traffic, so far from being broken, had become more strongly organized. The smuggler was an absolute nom de guerre; children were terrified at the mention of him, and women fled to London, in order to escape the gangs. In this state of things, it was determined to legislate afresh, not with the mind of philosophy, but of anger and mistaken zeal. Two reports were made by a committee appointed by the House of Commons, to inquire into the causes of the most infamous practice of smuggling.' Evidence was taken to a considerable extent, and it was ultimately resolved, that the offence in question should be punished with the most unrelenting rigour. Accordingly, smuggling was made a capital offence, and certain persons named as known contraband dealers were declared attainted as outlaws, unless they should surrender themselves within a given time. But it is necessary to add, that about the same time, the duty on tea was lowered exactly one half, and a perceptible decline in smuggling transactions was observed even before the passing of the new laws. Now it was in evidence before the committee, that the tea consumed in England amounted to 4,000,000 of pounds annually, and that 3,000,000 had been regularly run or smuggled. It was also shewn that a further reduction of 6d. per pound would so diminish the gains of the smugglers as to lessen the practice materially. Indeed, some persons who had been concerned in the contraband trade, did not hesitate to affirm that the business would be altogether extinguished by such a reduction. But the parliament did not think fit to make this last reduction. They contented themselves with passing their capital enactment, and pro "When Will. III came to the crown, a little in advance of that system of public credit which has so long retarded the progress of civilization, old Mobb, a most industrious labourer in his vocation, was within a few months of his final exit. Old Mobb was he who robbed Judge Jefferies, as he was going to his country seat. The hero of the western assizes had recourse to morality, and talked about soul and body; but it was in the wrong place, for the highwayman answered by shewing the weapon with which he had shot two of his lordship's servants, and so took fifty-six guineas without more trouble. Mobb perished in 1690, being convicted upon thirty-two indictments out of thirty-six. He was succeeded, however, by Whitney, and other famous roadsters,—some of gentle blood, others mere sons of idleness, but chiefly" miserable hardened wretches," as the poor Ordinary used to call them, when all his means of exhausting their impenitence had been eked out. Robbing the mail was now becoming very usual; in fact, it signified little to the freebooter where his plunder lay, provided he had a good horse. And about this time also, Turnham Green, Hounslow Heath, and Bagshot, began to acquire that celebrity for which they were so long afterwards distinguished. I hope,' says a writer of these times, the honest part of the soldiery will forgive me, if I think we have many incorporated in their companies, as fit for the triple tree as any that have graced that structure for a great while.' And he then goes on to say that idleness is the mother of mischief. This circumstance, combined with the consequences of a disbanded soldiery, cannot be too much N 2 180 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 these reigns. It may be observed, however, that executions for robbery were most frequent; that it was not uncommon to charge a man with eight or ten indictments; that it was quite customary to hang daring thieves in chains; and mercy was so little thought of, that the slightest aggravating fact was sufficient to ensure the warrant for execution, even when it A SPEECH WHICH WILL BE DE- MY LORDS,-In introducing the bill which I have the honor to lay before your lordships, I think it right in me to utter a had been intended to grant a reprieve. At few sentences, more in fact for form sake, 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, maimone 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 periodicals 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. 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 innumerous.' 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. Sinollett 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 neof 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 committed a robbery per diem, and terrified the citizens of London exceedingly by saying, that he wanted to kill two men, and then he should not mind being taken; and very soon afterwards there was another congregation of the most formidable gangs. In 1751, it was acknowledged that travelling on the highways was very hazardous, and that it was almost unsafe to walk the streets; and, even at that day, people were not wanting who said, that it was surely a vain attempt to put a stop to such crimes by the halter; and arguing with much sense, they admitted their ignorance of the true cause of the distemper. Think of our persevering obstinacy in 1832! The seven name, years' war, which began in 1756, diverted the public attention from the causes of the late increase of robbers, because the evil was never felt so much during the campaigns with France. But the country had no sooner returned to peace, than the mischief broke out more strongly than ever, and with it the most urgent enquiries into its origin. Hanway, who wrote about this time, declared that he had lived under the most despotic governments of Europe and Asia, yet he was free from violence and the dread of robbery. Here,' says he, I am not so happy the caution with which it is necessary to live, is the heaviest tax I ever paid in any country. I cannot return to my home, not even in my chariot, without danger of a pistol being clapped to my breast.'" country is now enjoying the benefit. Therefore, my lords, if you have agreed to those bills, you are bound, having regard to your own well-being, and to prevent evil-speaking, and the lowering of your lordships house in public estimation, to vote for the lords, that myself and the public, who have present bill; otherwise you will see, my seen that this would be the consequence of the late measures, will think that they and I are wiser than the wisest, more clear sighted than the most clear sighted ;-they will say that your lordships, forming, as you undoubtedly do, a body the most illustrious for intellect, foresight, and genius, besides boundless wealth, power, and influence,-they will say that you could not see what they saw,-what the least considerable person in the kingdom could see,-a paviour perhaps, yes, or a paviour's assistant, or some such person,-thereby shewing a marvel to the world, that a paviour could see better than a lord; aye, or a lord marquis. I have shewn therefore, my lords, that if you have any wish to stand well with the country, and have no wish to fall and be smitten under the paviour's hammer, or the auctioneer's hammer, or some such implement, you will do well to agree to this 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 lawyers are vermin. I have always called them so in private, and in public also, since I have had the honor of addressing your lordships; and you should give me some credit when I remind you I am a lawyer myself. I have lived all my life with them, but I have done with them now; they were my ladder, my lords, that is, my ladder of ascent-mark the difference-not my ladder of descent-I have no intention of going down again; and mark this also, that I have no intention of letting any one else get up; so, my lords, down goes the ladder, which was, I assure you, a most rotten one, and decayed in all its parts. I had in fact some awkward slips from it, but it has 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 shall we enjoy our own good things; or to use a familiar adage, with which a noble Earl, a friend of mine, is well acquainted, "the fewer the better cheer." Thus, my lords, have I fully vindicated the present measure, if vindication were needed, which it is not: and if your lordships agree to this, I shall only make one more proposition to you— that is, I should say, two more propositions-in which, God knows, I have not my own interest in view: the first and foremost being a bill "to vest the Appointment of all future Lawyers in the Lord High Chancellor ;" and the last and lastmost (if there be such a word) being a bill "for creating the humble individual addressing you Perpetual Lord High Chancellor." resolved to abate the nuisance altogether, NEW BILL FOR THE AMENDMENT OF THE LAW OF DEBTOR AND [Continued from p. 153.] Official Assignees. and have brought in the present measure, for which there is good authority; for if I hate one thing more than another, it is innovation and experiments, as I have always told your lordships. The fact is, there is a precedent for the very plan I have now in27. That a number of persons, being mertroduced; and if antiquity smelleth sweet chants, brokers, or accountants, shall be chosen in your lordships' nostrils, it will be, beyond by the Lord Chancellor to act as official as compare, 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 perdeath, or possibly decapitating; or accord-sonal, of the petitioner, shall in every case be 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, such bank as the said commissioners shall livered and paid by such official assignee into or any other name which ornithology supplies 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 the best suited to their own offences. They time during which he shall have so retained starved their clients; let them now be starved themselves. I have provided for myself and friends, and the more thin and emaciated all other lawyers become, the more the same Provided always, that until assignees shall be chosen by the creditors of each person so petitioning, such official assignees so to be appointed to act with the assignees to be chosen by the creditors of each person so 182 New Bills in Parliament: Law of Debtor and Creditor. petitioning shall be enabled to act, and shall be deemed to be to all intents and purposes whatsoever a sole assignee of the estate of each person so petitioning as aforesaid. Assignees of Petitioning Debtor's Estate. 28. That at the meeting appointed by such commissioner, or any adjournment thereof, assignees of the petitioning debtor's estate and effects shall be chosen to act with the official assignee, and all creditors who have proved debts to the amount of ten pounds and upwards, shall be entitled to vote in such choice; and also any person authorised by letter of attorney from any such creditor or creditors, upon proof of the execution thereof, either by affidavit sworn before a Master in Chancery, ordinary, or extraordinary, or by oath before and in case of creditors residing out of England, by oath before a magistrate where the party shall be residing, duly attested by a notary public, British minister or consul, and the choice shall be made by the major part value of the creditors so entitled to vote; provided that such commissioner shall have power to reject any person so chosen who shall appear to him unfit to be such assignee as aforesaid, and upon such rejection a new choice of another assignee or assignees shall be made as aforesaid. in 31. That when any person shall have presented his petition as aforesaid, all his personal estate and effects, present and future, shall become absolutely vested in and transferred to the assignees or assignee for the time being, by virtue of their appointment; and as often as any such assignee shall die, or be lawfully removed, and a new assignee duly appointed, all such personal estate as was then vested in such deceased or removed assignee, shall, by virtue of such appointment, vest in the new assignee, either alone or jointly with the existing assignees, as the case may require, without any deed of assignment for that pur pose. 32. That when any person shall have filed his petition as aforesaid, all his present and future real estate, whether in the United Kingdom of Great Britain and Ireland, or in any of the dominions, plantations, or colonies belonging to his Majesty, shall vest in such persons, assignee or assignees for the time, by virtue of his or their appointment, without any deed of conveyance for that purpose; and as often as any such assignee or assignees shall die, or be lawfully removed or displaced, and a new assignee or assignees shall be duly appointed, such of the aforesaid real estate as shall remain unsold or unconveyed, shall, by virtue of such appointment, vest in the new assignee or assignees, either alone or jointly with the existing assignees, as the case may require, without any conveyance for that pur pose. Transfers of Property. 29. That in case any assignee of the estate and effects of any petitioner so appointed as aforesaid, shall be unwilling to act, or in case of the death, incapability, disability, misconduct, 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, 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 hands, 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. of such appointment, and as regards all other nally commenced the same. places, within twelve months from the date thereof. |