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CHAP. V.

Sir James Mackintosh's Resolutions for the Improvement of the Crimi

nal Code : nature and grounds of the Opposition to them : they are rejected-Bills on the same Subject introduced by the GovernmentTwo Bills taking away Capital Punishment from certain OffencesBill empowering the Judges to record Judgment of Death, without pronouncing il-Bill concerning the Interment of any persons found Felo de se-Change in the Law of Principal and Factor- New Marriage Law: Discussion and Rejection of the Clause making Marriage voidable-Delays in the Court of Chancery-Appellate Jurisdiction Proposed Bills for the Recovery of Small Debts-Conduct of the Lord Advocate in Borthwick's Case.

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cution of the vote to which the 15, relating to threatening letters ; Commons had come in the preced- of 27 Geo. 2, c. 19, relating to the ing year, that they would in this Bedford-level; of 3. Geo. 3, c. 16, session take into consideration the relating to Greenwich pensioners; . means of increasing the efficacy of of 22 Geo. 3, c. 4, relating to cutthe criminal laws by abating their ting serges; and of 24 Geo. 3, c. rigour, submitted, on the 21st 24, relating to convicts returned of May, nine resolutions to the from transportation, as subjects House. The purport of these reso- persons convicted of the offences lutions was: That it was expe- therein specified, to the punishdient to take away the punishment ment of death :-That it was exof death in the case of larceny pedient to take away the punishfrom ships, from dwelling houses, ment of death in the cases of horse and on navigable rivers :That it stealing, sheep stealing, and cattle was expedient to repeal so much of stealing, of forgery, and of uttering the statute 9 Geo. 1, commonly forged instruments :- That in the called the Black Act, as creates ca- ease of all the aforesaid offences, pital felonies, excepting the crimes which are not otherwise sufficiently of setting fire to a dwelling house, punishable by law, the punishments and of maliciously shooting at an of transportation for life or years, individual; so much of the sta- or of imprisonment with or without tute 26 Geo. 2, c. 33, commonly hard labour, should be substituted called the Marriage Act, as creates for death, in such proportions and capital felonies; so much of the with such latitudes of discretion in statute 21 Jac. 1. c. 26, relating to the judges, as the nature and magfines and recoveries ; of 6 Geo. 2, nitude of the respective offences e. 37, relating to cutting down might require ;-That it was expe

dient to make provision, that the • See Ann. Reg. Vol. LXIV. p. 86. judges should not pronounce sen

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tence of death in those cases where without any notice given to the they had no expectation that such House of the objects of his resolusentence would be executed ;-and tions, they should be called on to that it was fit to take away the give a distinct opinion upon so forfeiture of goods and chattels in many important alterations of the the case of suicide, and to put an law? Suppose the House to affirm end to those indignities to which the resolutions that night, and the remains of the dead are ex- afterwards to find themselves unaposed, in the cases of suicide and ble to assent to the bills brought high treason. Sir James, with his in pursuant to them, would not usual eloquence, expatiated on the that be an inconvenient situation general principles, on which the for the House to be placed in? necessity of mitigating our crimi- Was there nothing inconvenient in nal code is ordinarily enforced, and the rejection of a bill brought in illustrated the propriety of the to remedy defects, which the jourparticular changes which he had nals of the House would show to recommended.

have been fully and clearly adMr. Peel, while he acceded in mitted? The right hon. secretary general to the principles expressed then discussed the merits of several by the mover, objected to the of the proposed alterations; and, course which he had followed. while he announced the intention He contended, that the proper of government to bring in bills for mode of proceeding would have carrying some of them into effect, been to have asked leave to bring he showed that others of them in a bill upon each of the heads were of very doubtful expediency. included in the resolutions, and He concluded by moving the prethat great inconveniences might vious question. be the result of following the Sir James Mackintosh, though course now proposed. The House, several of his friends expressed by assenting to the resolutions, their opinion that he now sought to would affirm all the propositions pledge parliament, without suffilaid down in them; and yet a cient deliberation, to too many des bill, brought in pursuant to those tailed measures, persisted in taking propositions, might ultimately be the sense of the House upon his found not worthy of being sup- first resolution. The previous ported throughout. While the question was carried upon it by a resolutions professedly followed the majority of 86 to 76. report of the committee on crimi During the subsequent period of nal law, they in truth comprehended the session, four acts were introcases not referred to in that report. duced and passed, mitigating in The offences of stealing sheep, some particulars, the severity of cattle, and horses were not referred our penal code. By one of these, * to in the report, and yet the resolu- the 6 Geo. 2nd, cap. 37, against untutions proposed to take away the lawfully and maliciously breaking capital punishment from them. or cutting down the banks of rivers That the hon. and learned gentle- or sea-banks, whereby lands shall man had been misled by the report, be overflowed or damaged, as also was plain ; and being so misled as unlawfully and maliciously cutting to facts and cases wholly omitted in that report, was it fair that July.

4. Geo. 4th, c. 46: passed 4th

hop-binds growing on poles in plan- engines, tools, instruments, and tations of hops - the 27th Geo. utensils used in the same manu2nd, cap. 19, against maliciously facture and machinery: and it destroying any bank, mill, engine, enacted, in like manner, that perflood-gate, or sluice, erected for sons convicted under any of these draining and preserving the North three laws should be liable, at the Level (part of Bedford Level) and discretion of the Court, to be transadjoining lands - and the 3rd ported beyond the seas for life, or Geo. 3rd, cap. 16, against known for any term not less than seven ingly and willingly personating or years, or to be imprisoned only, or falsely assuming the name and to be imprisoned and kept to hard character of persons entitled, or labour in the common gaol or house supposed to be entitled, to any out- of correction, for any term not expension, or allowance of money, ceeding seven years. from the commissioners or gover

Another law * restored the benors of the royal hospital for sea- nefit of clergy to the offences inmen at Greenwich, “ in order to cluded within the following acts receive the money due, or supposed--the 22nd Car. And, c. 5, against to be due, on such out-pension"- stealing cloth from the rack, and were repealed, so far as they de- stealing or embezzling the king's prived persons convicted under ammunition and stores the 10th them of the benefit of clergy ; and, and 11th Wil. 3rd, c. 23 (as altered in lieu of the capital punishment, by 1st Geo. 4th, c. 117), against it was enacted that persons so con- burglary, house-breaking, or robvicted, "should be liable, at the bery, in shops, warehouses, coachdiscretion of the Court, to be trans- houses, and horse-stealing; and the ported beyond the seas for life, or 24th Geo. 2nd, cap. 45, against for any term not less than seven robberies and thefts upon navigable years, or to be imprisoned only, or rivers, ports of entry or discharge, to be imprisoned and kept to hard wharfs and quays adjacent. Adoptlabour in the common gaol or house ing, instead of death, the same of correction, for any term not ex- species and degrees of punishment ceeding seven years."

The same

as were had recourse to in the preact also took away the penalty of vious innovation, it enacted, that death inflicted by the 4th Geo. 3rd, every person who should be lawcap. 37, against“ stealing, cutting, fully convicted of cutting, taking, and destroying linen yarn, linen stealing, or carrying away any cloth, or manufactures of linen cloth or other woollen manufacyarn, and the looms, tools, and im- tures, from the rack or tenters in plements used therein—by the the night-time ; or of stealing or 22nd Geo. 3rd, cap. 40, against embezzling his majesty's ammudestroying woollen, silk, linen, nition, sails, cordage, or naval or and cotton manufactures, and the military stores; or of privately tools, tackle, and utensils used stealing any goods or chattels in therein ;"--and by the 28th Geo. any shop, warehouse, coach-house, 3rd, cap. 55, against cutting and or stable; or of stealing any goods destroying frame-work-knitted wares, or merchandise in any ship, pieces, stockings, and other like articles, and breaking, destroying, • 4. Geo. Ath. c. 53 ; passed July 8th and damaging frames, machines, 1823

barge, lighter, boat, or other vessel rised to abstain from pronouncing or craft, upon any navigable river judgment of death, and, instead or canal, or in any port of entry or thereof, to order such judgment to discharge, or in any creek be- be entered, which accordingly shall longing to any such river, canal, be entered of record in the usual or port, or from any dock, wharf, form, and in the same manner as or quay adjacent to any such river, if judgment of death had actually canal, or port; or of procuring, been pronounced in open Court; counselling, aiding, or abetting any and that such record shall have the such offender-should be liable, at like effect, and be followed by all the discretion of the Court, to be the same consequences, “as if such transported beyond the seas for life, judgment had actually been proor for any term not less than seven nounced in open Court, and the years, or to be imprisoned only, or offender had been reprieved by the to be imprisoned and kept to hard Court." labour in the common gaol or house The mode of interment, which of correction, for any term not ex- a long-continued custom had caused ceeding seven years."

(though unsupported by express The custom of pronouncing sen- anthority) to be regarded as law, tence of death upon great numbers, was in many respects revolting to upon whom, from the circum- every natural feeling. To remove stances attending their crimes, this stain from our national usages, there was scarcely a chance that a law * was passed, which enacted it would be actually inflicted, was that, for the future, it should not rightly deemed to be an imper- be lawful for any coroner, or other fection in our system : since it officer having authority to hold inmuch diminished the solemnity of quests, to issue any warrant or a proceeding so awful as that of other process directing the remains passing final doom upon a fellow of persons, against whom a finding creature ought ever to be. To of felo de se should have been had, remedy this evil, a law was passed, to be interred in any public highwhich enacted, that whenever any way; but that such coroner or person shall be convicted of any other officer should give directions felony except murder, as shall by for the private interment of the law be excluded the benefit of remains of such person felo de se clergy in respect thereof, and the (without any stake being driven Court shall be of opinion that, through the body of such person) under the particular circumstances in the church-yard or other burialof the case, the offender is a fit ob- ground of the parish or place, in ject of the royal mercy, the Court which the remains of such person may, if it shall think fit, direct the might, by the laws or customs of proper officer to ask, “ whether England, be interred, if the verdict such offender hath any thing to say, of felo de se had not been found why judgment of death should not against him; such interment to be be recorded against him ;” that if made within 24 hours from the the offender shall allege nothing finding of the inquisition, and to sufficient in law to arrest or bar take place between the hours of such judgment, the Court is autho- nine and twelve at night. The

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• 4. Geo, 4th c. 48 : passed July 4th.

* 4. Geo. Ath. c. 62: passed July 8.

act, however, gave no authority for clause in it provided, that the marperforming any of the rights of riage of a minor by licence, without Christian burial on such interment; the consent of the parent or guarand contained a salvo of the laws dian, should be voidable by suit, and usages relating to the burial instituted by proper parties within of such persons, in all other respects twelve months from its solemnizathan those which we have men- tion. This clause was vehemently tioned.

opposed by the archbishop of York, In consequence of petitions from the bishop of Chester, and lord the merchants of London and of Ellenborough. One objection was, Liverpool, a committee was ap- that the precaution might be depointed to take into consideration feated either by going to Scotland the state of the law between prin- or the continent, or by marrying cipal and agent. Upon this report, a by bans : but the principal topic of bill was passed, enacting,* that per- argument was of a religious nasons entrusted with goods for the ture. To make marriage voidable purposes of sale, and in whose names was, they contended, contrary to such goods were shipped, either the Christian code. The divine by themselves or by others, should legislator directed, that “a man be deemed the true owners thereof, shall leave father and mother, and so far as to entitle the consignees cleave unto his wife, and they of the goods to a lien thereon in twain shall be one flesh." He had respect of advances made by them, said also, “ what God hath joined without notice, to the apparent together, let not man put asunder:" sbippers, in like manner as if the and had ordained, that wives should latter had been the real owners. not be put away, save for adultery.

The numerous formalities, re- Taking these texts together, it quired for the celebration of mar- was obvious that the law of man riage by the law of the preceding ought to be made agreeable to the year, had excited much clamour, expressed law of God. Marriages especially among the lower classes were at present solemnized by the of people: and the effect of that, law of God, and by the law of man. which had been intended merely It was worse than a mockery to as a preventive of clandestine and say, that a man might be married improper matrimonial connexions, with all the sanctities which rehad produced a great diminution in ligion could confer upon the con« the annual number of marriages. tract,--and yet, that, after a miIn the very beginning of the pre- nister of the gospel had pronounced sent session, the evil was removed him married in the name of the for the time, by repealing nearly all Father, the Son, and the Holy the provisions of the late aet; and Ghost, the caprice of parents should a committee of the lords was ap- undo so solemn a compact. As to pointed to frame a permanent bill the moral tendency of the clause, on this important subject. A bill, what else was it in effect, than to founded on the report of that com- gratify the pride and avarice of mittee, was introduced by the parents, at the cost of the ruin archbishop of Canterbury. One and degradation of an innocent

female and the bastardizing of her 4 Geo. 4th, c. 83.

children? † 4 Geo. 4th, c. 76.

The Lord Chancellor observed,

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