The tenure of the judges was now assured; and their salaries were charged permanently on the civil list.

The law had secured their independence of the crown: but the spirit of the times leagued them closely with its authority. No reign was more

graced by the learning and accomplishments of its judges. They were superior to every corrupt influence but all their sympathies and predilections were with power. The enemies of Lord Mansfield

asserted that he was better calculated to fill the office of prætor under Justinian, than to preside as chief criminal judge of this kingdom, in the reign of George III." Neither Lord Mansfield himself, nor any other judge, deserved so grave a censure: but, with the illustrious exception of Lord Camden, the most eminent magistrates of that reign were unfriendly to liberty. Who so allied to the court,– so stanch to arbitrary principles of government,-so hostile to popular rights and remedial laws, as Lord Mansfield, Lord Thurlow, Lord Loughborough, Lord Eldon, and Lord Ellenborough? The first and last of these so little regarded their independence, in the exercise of the chief criminal judicature of the realm, that they entered the cabinet, as ministers of the crown; and identified themselves with the excutive government of the day. What further illustration is needed of the close relations of the judgment-seat with power? But no sooner had principles of freedom and responsible government gained ascendency, than judges were animated by in

Wraxall Mem., ii. 307.

dependence and liberality. Henceforward they administered justice in the spirit of Lord Camden; and promoted the amendment of the laws, with the enlightenment of statesmen.

punish

The deepest stain upon the policy of irresponsible government, is to be found in the history The criof the criminal law. The lives of men minal code. were sacrificed with a reckless barbarity, worthier of an Eastern despot, or African chief, than Capital of a Christian state. The common law was ments. guiltless of this severity: but as the country advanced in wealth, lawgivers grew merciless to criminals. Life was held cheap, compared with property. To hang men was the ready expedient of thoughtless power. From the Restoration to the death of George III., a period of 160 years,- -no less than 187 capital offences were added to the criminal code. The legislature was able, every year, to discover more than one heinous crime deserving of death. In the reign of George II., thirtythree Acts were passed creating capital offences: 2 in the first fifty years of George III., no less than sixty-three.3 In such a multiplication of offences all principle was ignored: offences wholly different in character and degree, were confounded in the indiscriminating penalty of death. Whenever an

1 'Penal laws, which are in the hands of the rich, are laid upon the poor; and all our paltriest possessions are hung round with gibbets.'-Goldsmith's Vicar of Wakefield.

2 Speech of Sir W. Meredith, 1777; Parl. Hist., xix. 237.

Lord Grenville's Speech, April 2nd, 1813, on Sir S. Romilly's Shoplifting Bill; Hans. Deb., 1st Ser., xxv. 535. This excellent speech, however, is scarcely reported in Hansard, but was printed separately by the Capital Punishments Society.

offence was found to be increasing, some busy senator called for new rigour,' until murder became, in the eye of the law, no greater crime than picking a pocket, purloining a ribbon from a shop, or pilfering a pewter-pot. Such law-makers were as ignorant as they were cruel. Obstinately blind to the failure of their blood-stained laws, they persisted in maintaining them long after they had been condemned by philosophers, by jurists, and by the common sense and humanity of the people. Dr. Johnson,— no squeamish moralist,-exposed them:2 Sir W. Blackstone, in whom admiration of our jurisprudence was almost a foible, denounced them.3 Beccaria, Montesquieu, and Bentham demonstrated that certainty of punishment was more effectual in the repression of crime, than severity: but lawgivers were still inexorable. Nor within the walls of Parliament itself, were there wanting humane and enlightened men to protest against the barbarity of our laws. In 1752, the Commons passed a bill to

4

1 Mr. Burke sarcastically observed, that if a country gentleman could obtain no other favour from the government, he was sure to be accommodated with a new felony, without benefit of clergy. Paley justified the same severity to unequal degrees of guilt, on the ground of the necessity of preventing the repetition of the offence.'— Moral and Political Philosophy, Book vi. ch. ix.

2. Whatever may be urged by casuists or politicians, the greater part of mankind, as they can never think that to pick a pocket and to pierce the heart are equally criminal, will scarcely believe that two malefactors, so different in guilt, can be justly doomed to the same punishment.'-Rambler, i. 114; Works, iii. 275. In this admirable essay, published in 1751, the restriction of death to cases of murder was advocated.

It is a kind of quackery in government, and argues a want of solid skill, to apply the same universal remedy, the ultimum supplicium, to every case of difficulty.'-Comm., iv. 15.

Bentham's work, 'Théorie des Peines et des Récompenses,' appeared in 1811.

commute the punishment of felony, in certain cases, to hard labour in the dockyards: but it was not agreed to by the Lords. In 1772, Sir Charles Bunbury passed a bill through the Commons, to repeal some of the least defensible of the criminal statutes: but the Lords refused to entertain it, as an innovation.2 In 1777, Sir W. Meredith, in resisting one of the numerous bills of extermination, made a memorable speech which still stands out in judgment against his contemporaries. Having touchingly described the execution of a young woman for shop-lifting, who had been reduced to want by her husband's impressment, he proceeded: I do not believe that a fouler murder was ever committed against law, than the murder of this woman, by law;' and again: the true hangman is the member of Parliament: he who frames the bloody law, is answerable for the blood that is shed under it.'3 But such words fell unheeded on the callous ears of men intent on offering new victims to the hangman.*

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Warnings more significant than these were equally neglected. The terrors of the law, far from Uncerpreventing crime, interfered with its just tainty of punishment. Society revolted against bar-ment. barities which the law prescribed. Men wronged

1 Comm. Journ., xxvi. 345; Lords' Journ., xxvii. 661.

punish

2 Parl. Hist., xvii. 448; Comm. Journ., xxxiii. 695, &c.; Speech of Sir W. Meredith, 1777.

3 Parl. Hist., xix. 237.

4 Sir William Meredith said: When a member of Parliament brings in a new hanging Bill, he begins with mentioning some injury that may be done to private property, for which a man is not yet liable to be hanged; and then proposes the gallows as the specific and infallible means of cure and prevention.'

by crimes, shrank from the shedding of blood, and forbore to prosecute: juries forgot their oaths and 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. Criminals were not deterred from crime, when its consequences were a lottery: society could not profit by the sufferings of guilt, when none eould comprehend why one man was hung, and another saved from the gallows. The law was in the breast of the judge; the lives of men were at the mercy of his temper or caprice.2 At one assize town, a 'hanging judge' left a score of victims for execution: at another, a milder magistrate reprieved the wretches whom the law condemned. Crime was not checked: 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.

Such was the state of the criminal law, when Sir

Sir Samuel Romilly's bills, 18081818.

Samuel Romilly commenced his generous labours. He entered upon them cautiously. In 1808, he obtained the remission of capital punishment for picking pockets. In 1810, he vainly sought to extend the same clemency to other

1 Blackstone Comm., iv. 15.

2 Lord Camden said: 'The discretion of the judge is the law of tyrants. It is always unknown: it is different in different men: it is casual, and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion to which human nature is liable.'-St. Tr., viii. 58.