THURSDAY, JANUARY 24, 1901. A CENTURY OF CRIMINAL LAW.

New Zealand Tablet, Volume XXIX, Issue 4, 24 January 1901, Page 16

THURSDAY, JANUARY 24, 1901. A CENTURY OF CRIMINAL LAW.

fOLTA IRE'S observations on his visit to Engliind in 1 72G-2D aie contained in a dozen or more sayings that are as bitter in the mouth as the juice of sorrel. In one of these an clement of truth underlies the sarcasm. ' The hangman,' said he, speaking of his 'cross Channel neighbors, ' should write their history, for he usually settles their disputes.* The soured dramatist-historian alluded to the great number of oifenceß that were in his day visited with the extreme penalty of the law in the British Isles. In his own country and in other Continental nations capital offences were, by comparison, rare. As late as 1757 an Act was passed in France inflicting the penalty of death on the authors of impious works. But the representatives of the French

clergy who met in Paris in that year successfully petitioned the King to repeal the law. Roger de Hoveden tells us in his Chronicle that in England in the twelvth century the death penalty was reserved for the crime of treason, and even then might, if surety was found for the culprit, be commuted by the king. Henry VIII. greatly extended the list of capital offences. At no period in British history were the headsman and the official strangler kept so busy as during the reign of ihe uiuuh-niaiiied liiuiiaioh. Aw umiiy as 71.400 persons — many of them innocent of crime — were executed in England during the thirty-eight years that he cumbered the throne ; and in one year 300 beggars were strangled to death by the common hangman for merely soliciting alms.

A lull followed the wild, red days of Henry VIII The common law was not, considering the times, marked by undue severity. But as the country advanced in prosperity, law-makers — who belonged almost exclusively to the propertied classes — became more and more merciless towards criminals. Property was dear ; human life was cheap. •Penal laws,' says Goldsmith in his Vicar of Wakefield, 1 which are in the hands of the rich, are laid upon the poor ; and all our paltriest possessions are hung round with gibbets.' * From the Restoration to the death of George 111. a period of 160 years,' says Erskine Ma.y in his Constitutional History, ' no less than 187 capital offences were added to the criminal code. . . In the reign of George If., thirty-three Acts were passed creating capital offences ; in fche first fifty years of George 111., no less than sixty-three.' Eighteenth century British feeling pinned Its faith so firmly to the hangman's noose that Edmund Burke once declared that he could obtain the assent of Parliament to any Bill imposing the penalty of death. Referring to the early part of the nineteenth century, Clark says : 'It had long been a received maxim in Great Britain — a maxim advocated by Paley and others of his school — that crimes were most effectually suppressed by the dread of capital punishment, which, though not always inflicted, might yet be held in lerrorem over hardened offenders. Acting upon this theory, the legislature had gradually attached the penalty of death to every species of offence that seemed to threaten the interests of any of the influential classes — landowners, agriculturists, capitalists, traders. By 1809 more than six hundred different kinds of offences had been made capital — a state of the law unexampled in the worst periods of Roman or Oriental despotism.' Sir Samuel Komilly — one of the early nineteenth century reformers of British criminal law — declared that there was no other country in the world * where so many and so large a variety of actions were punishable with loss of life.'

' If a man,' says a recent historian, dealing with the early part of the vanished century, ' injured Westminster Bridge, he was hanged. If he appeared disguised on a public road, he was hanged. If he cut down young trees ; if he shot at rabbits ; if he stole property valued at five shillings ; if he stole anything at all from a bleach-fit Id ; if he wrote a threatening letter to extort money ; if he returned prematurely from transportation — for any of these offences he was immediately hanged.' And hanging in those times did not mean the ' drop ' and the mercifully swift severance of the spinal column : it was an execution of the rude Jack Ketch order, and death came by slow strangulation. The coiner was hanged. The forger was hanged. The pickpocket was hanged. The woman who stole a pair of clogs or a roll of linen was hanged. The hungry man who stole a turnip from a field for himself or his starving family, was hanged. Atone time in I H I O — during the hunger-troubles that followed the close of the Waterloo campaign — a child of ten years of age formed one of a group of fifty-eight persons that lay under sentence of death. Judge II kath voiced the feeling of the 'classes' of his time when he declared from his place upon the bench that there was no hope of regenerating a criminal on this side of the grave, and that for his own sake, and for the safeguarding of society, it was better to hang the caitiff by the neck till he was dead. 'Jn one year (1.520),' says Mulhall, 4 no fewer than forty-six persons were hanged for forging Bank of England notes, some of which were afterwards asserted to be good.' And, according to the same authority, the first half of the nineteenth century witnessed,

in England and Wales, the execution of 2734 persons, only 616 of whom passed through the hangman's hands for the crime of murder.

British legislators, however, had o'ervaulted their purpose. 'The terrors of the law,' says Erskine May, ' far from preventing crime, inteifered with its just punishment. Society revolted against barbarities which the law prescribed. Men wronged by crimes shrank trom. the shedding of blood and forbore to prosed te ; jnri"« fnvgnf, fheir oafh«: ;ind acquitted prisoners against evidence ; judges recommended the guilty to mercy. Not one in twenty of the sentences was carried into execution. Hence arose uncertainty — one of the worst defects in criminal jurisprudence. Punishment lost at once its terrors and its example. . . Crime was unchecked ; but, in the words of Horace Walpole, the country became " one great shambles '' ; and the people were brutalised by the hideous spectacle of public executions.' The law was in this parlous state when, in the early years of the nineteenth century, Sir Samuel Romilly began his cautious and tentative efforts for the reform of the British criminal code. In IKOB he succeeded in having mere pocket-picking, and in 1810 petty thefts from bleaching grounds, removed from the category of capital offences. His efforts to save other petty pilferers from the grip of the hangman were unavailing. But he stirred the depths of public conscience somewhat. Sir James Mackintosh, in 1820, slightly diminished the number of nominal death penalties that disfigured the statute-book. So did Sir Robert Peel. But Peel left to the official strangler the punishment of over forty different kinds of forgery, and his dilettante and yellow-gloved ' reform ' scarcely diminished the effective severity of the law. So late as 1820, the poor, blundering conspirators, Thistlewood and his companions, were first hanged and then beheaded. The last execution for forgery took place on December ,51, 1829. But the death-penalty for this crime cumbered the statute-book till 1K32 ; and even then the forging or altering of wills or of powers of attorney for transferring stock was still left ' a hanging matter.' In ls:>2 capital punishment was abolished for coining and sheep-stealing. Two years later, in 1831, hanging in chains ceased by Act of Parliament. The pillory was abolished in the first year of Queen Victoria's reign. Thereafter, the reform of the criminal code moved forward afc a brisk pace. According to the Report of the Capital Punishments Society, published in IS io, upwards of 1400 persons had been choked oil" by the hangman in England and Wales in the prewous thirty-five years for crimes which had at tiie date of that Report ceu>ed to be capital. Arson, forgery, burglary, and rape remained nominally capital offences till l.xvi. On August 27 of that year the last execution for ahemplcl murder Look place at Chester. But the Criminal Law Consolidation Acts of the same year (18(il) confined the death penalty to the crimes of treason and wilful murder. The hr>t public execution in England — that of Michael Barrett, an allcuod Fenian, for the Clerkenwell explosion — took place on May 2(1, LSGS. In the same year an Act was passed directing the carrying out of the death penalty within the walls of prisons. This put an end to the indecent orgies that had for so long been associated with public executions in the British Isles, and for the first time in the vanished century the last dire penalty of the law was surrounded with the solemnity and decorum which should ever accompany the administration of judicial punishments.

Two other notable reforms in the methods of dealing with crime during the departed century may be noted here. These are (1) the establisbment of an efficient metropolitan police-force in 1829. These replaced the 'drunken and decrepid watchmen and scoundred thief-takers' — themselves ' companions and confederates of thieves ' — to whom the task of preventing crime in London had been so long entrusted. A constabulary was organised by Peel in Ireland in 1H:)6 ; and three years h\ter provision was made for the establishment of a police force in English counties and boroughs. (2) In the early part of the nineteenth century the prison treatment of criminals in the British Isles uas savage, tyrannous, and cruel in the extreme. For misdemeanants of respectable character the prisons of the time were so many living hells. The name of Elizabeth Fry will ever be associated with the English prison reform of

the early nineteenth century, as that of John Howard will be with that of the eighteenth. And yefc so late as September 15, 1853, the London Times declared that 'the prison of Birmingham was the theatre of scenes which filled the public with horror and affright. Facts which, if described by Dickens, would be regarded as a piece of romance, actually occurred in one of the prisons in IS.">3.' Milder and gentler modes of prison treatment were, however, unitormiy adopted in time. fVbolie fnnntripß wpvo thp pioneer* of t,ho reforming- and gentler system of treatment of criminals. We neecf only refer in passing to the labors of St. Vincent de Paul among the galleys of Bayonne, Marseilles, and Bordeaux. Several congregations of religious of both sexes have been long instituted for the care of criminals : the Brothers of St. Joseph, the Lazarist Fathers, the Sisters of the Good Shepherd, the Sisters of Mary and Joseph, etc. In Austria female criminals, instead of being sent to prison, are placed under the care of religious. More than two and a half centuries ago Pope Innocent X. laid in Rome the foundations of the first great model prison — the ' Carceri Nuove'— which Howard, the great British philanthropist, declared, more than a century later, to be one of the best regulated establishments of the kind that he had seen. Pope Clement XL (who reigned from 1700 to 1721) founded the famous reformatory for juvenile offenders which |ia the model of those that are in existence in every civilised country at the present day. Pope Clement XII. (1730-1740) extended the system to female delinquents. William Smith, Gem-beer, and other authorities on the history of prison discipline show how the system which originated with the Popes spread to Milan, Belgium, and America.

In Die same \\a\ C.itholie countries led the way in the establishment of reformatory penal colonies — the Portuguese and Spaniards in their settlements in Africa, aiuf the French in Guiana, under the care of the Jesuit Fathers and the Sisters of Charity of St. Vjnchnt de Paul. The whole history of prison systems lias, perhaps, nothing which can e(]ual in horror the cynic cruelties and nameless horrors of British transportation to Australia, Tasmania, and Norfolk Island. It endured like a lonij aurony from 17H7 till the permanent abolition of this mode of disposing of the criminal population of the Pwitish Isles in 1S(?S. Its abolition— which was in a -jreat measure due to the ceaseless efforts of two distinguished Catholic ecclesiastics— Dr. ru.ATHORNK, Vicar-General of Sydney, and Bishop Wjllsox. of Tasmania — terminated what was probably the most cruel and shot kiii» penal system of the nineteenth century.