An Account of the most important Public Records of Great Britain, and the Publications of the Record from various printed Books and MSS. Cooper, Esq. Baldwin and Cradock. 1832. . . . 420 ART. IX.-CLAIM OF SIR AUGUSTUS D'ESTE. Papers elucidating the Claims of Sir Augustus D'Este, containing, 1. Genealogical Tables showing the descent of Sir Augustus on the maternal side from various Sovereign Houses of Europe, and printed for the pur- pose of demonstrating the validity of the Marriage contracted by his Parents with respect to feodal and territorial succession in Germany, pp. 4.-2. The Case submitted to Dr. Lushington and Mr. Richards, with the opinions of those gentlemen thereupon, pp. 16.- 3. Diplomatic Note or Exposé of those Claims trans- mitted to Earl Grey, pp. 36.-4. A Letter to a Noble Lord from Sir John Dillon, explanatory of Proceedings adopted in relation to these Claims in the Court of *** The Title and Index to Vol. VII. are given with this Number. THE LAW MAGAZINE. ART. I-SECONDARY PUNISHMENTS. 1. Report from the Select Committee on Secondary Punishments, together with the Minutes of Evidence, an Appendix of Papers, and an Index. Ordered by the House of Commons to be printed, 27th Sept. 1831. 2. Facts relating to the Punishment of Death in the Metropolis. By EDWARD GIBBON WAKEFIELD, Esq. London. 1831. THE subject of criminal law has of late years occupied so large a share of public attention, both on account of the improvements which it has undergone, and of the large and increasing number of convictions, which, in spite of these improvements, annually occur, that we need not offer any apology for recurring to a matter of such paramount importance to the welfare of the community as the state of its penal jurisdiction. It is, indeed, true that as in this country, the criminal law is simpler in character, less voluminous in bulk, and furnishes a smaller proportion of the business of the courts, than the civil law, it is not cultivated with so much care by the principal members of the profession, or the most learned writers on legal subjects. Nevertheless, in acknowledging all the importance of civil law, we must not forget that it owes its authority and jurisdiction, nay its very existence, to criminal law; for without some penal process in the last resort, to enforce its commands, the decrees of a civil tribunal would be powerless and ineffectual. Without a civil law, a society might exist in a rude and uncivilized state, but without a criminal law it could not exist at all. Crimes, or infractions of law for which a punishment is appointed, may be prevented in two different methods. The first is when a person intends to commit a crime, but cannot. find an opportunity for carrying his purpose into effect: to which class belong all precautions taken by the proprietor for guarding his property, such as bolts, bars, private watchmen, &c. The only preventive of this kind which falls within the care of the whole community is police, a subject on which the most disgraceful prejudices have been entertained in this country, partly awakened and encouraged for party purposes, and partly arising from mistaken notions as to liberty, which consists, not (as is often supposed) in a mere absence of restraint, but in the undisturbed enjoyment of legal rights, alone to be derived from the efficient protection of government. This cause has, however, recently made an immense advance in consequence of the institution of a metropolitan police, whose powers, if a vigorous war is ever to be carried into the fastnesses of the London thieves, are either too limited for the end to which they are to be applied, or the policemen are too sparing in the exercise of them. Altogether this branch of the public administration admits of very great improvement and extension in this country, a question which we cannot stay to consider in this place, but must pass to the second kind of preventives of crime, or those which deter a man from the commission of an offence, when it can be done without interruption. These are inflictions of pain on the offender when legally convicted, in various forms, and to such an amount as more than counterbalances the pleasure derived from the commission of the offence; so that no man in his senses would commit the crime, if it were certain that the punishment would follow it. The object, therefore, of all penal law is to arrange the system of punishments in such a manner that all persons may be deterred from committing the prohibited acts, not by any sense of the difficulty of the undertaking, but by a fear of the consequences which they will entail. The means used for this purpose, are either the taking away of the criminal's life, or the inflicting on him some other less pain, mental or bodily. The penalty of death is threatened by our law in numerous cases where it is never inflicted ; so that, of the whole number of capital convictions, the executions are a very small part; and generally it may be said that the legal punishment is only suffered to take its course in cases of treason, murder, wounding with intent to murder, arson, rape, sodomy, aggravated and extensive forgery, and housebreaking and highway robbery accompanied with violence. In the last session of parliament a petition, numerously signed, was presented to the House of Lords, praying that the punishment of death might be confined to crimes attended with violence in their commission. To this absurd proposal the Chancellor very properly objected that it tended to foster the prevalent error, that punishment is retaliation, by declaring that personal violence is only to be inflicted in return for personal violence; an error, it may be remarked, further countenanced by the misinterpretation of a well-known text of Scripture (which, even if its meaning were different, would not be binding on modern legislators), "Whoso sheddeth man's blood, by man shall his blood be shed." For this command, admitting it to be applicable to the government of England, merely authorizes the execution of murderers, but does not forbid the execution of other offenders. It says that murderers shall die, but does not say that incendiaries and traitors shall not die. Another objection to this suggestion which would inflict punishment on a retaliatory principle is, that one of the most dangerous crimes, and most difficult of detection, and therefore most calling for severe penalty, is arson, in which there is no violence either offered or committed; and therefore according to this strange rule, nothing that can justify the infliction of death. The same may be said of treason, which, as being a crime which strikes at the root of all society, of everything for which laws are made or administered, can surely not be considered as a less offence than burglary with violence, than arson, or even than murder itself.2 We confess that none of the arguments which we 1 See Law Magazine, Vol. VI. p. 515. 2 On the other hand, it is not every crime in which the extreme of violence is committed, that ought to be visited with capital punishment. An instance of this, recognized by the laws of all civilized nations, is manslaughter; and we would that have hitherto met with, have convinced us of the expediency of abolishing the punishment of death in this country; nor on the other hand does it appear to us to be a subject of such importance as both parties in this controversy agree to consider it. In England, so long as the present penal system is continued, death is the only efficient punishment for savage and desperate persons of the lowest order. All the others, as we shall presently show, they would justly treat with entire disregard. If there was any other punishment in this country formidable to all classes and varieties of criminals, the maintenance of capital punishments would become a matter of comparative indifference. Having offered these few remarks on the subject of capital punishment, we shall proceed to the class of preventives of crimes which do not consist in the deprivation of life, or (as they are usually termed) secondary punishments. On this entire subject, embracing the nature and kinds of secondary punishments in this kingdom, the mode of their infliction, the rules according to which they are apportioned, their comparative severity and efficiency, their effects on the minds both of the sufferers and the community at large, and the improvements of which they are susceptible, copious information is to be found in the evidence taken before a committee of the house of Commons on secondary evidence which sat during the spring and summer of 1831; and although the Committee appear from their questions not to have possessed a very distinct or comprehensive knowledge of the subject of their enquiries, and have neither made any report nor agreed to any resolutions on the matters referred to their investigation; still the evidence of the various persons examined by them, sheds a great light on the working of our penal system. Of the witnesses thus examined, not the least intelligent or useful is Mr. E. G. Wakefield, whose work, named at the head of we could add (so far at least as this country is concerned) infanticide; a crime wanting in all the attributes which distinguish the murder of adults, viz. the wickedness of the motive, the danger to the community, the feeling of alarm and insecurity which it occasions reasons by which all people are unconsciously swayed, when a young woman is indicted for this offence, and which render trials for childmurder little more than solemn contrivances for decorously evading the harsh and impolitic enactments of the law. |