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CHAP. V.

Sir James Mackintosh's Resolutions for the Improvement of the Criminal 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 Offences Bill empowering the Judges to record Judgment of Death, without pronouncing it-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.

IR James Mackintosh, in prose

Commons had come in the preceding year*, that they would in this session take into consideration the means of increasing the efficacy of the criminal laws by abating their rigour, submitted, on the 21st of May, nine resolutions to the House. The purport of these resolutions was: That it was expedient to take away the punishment of death in the case of larceny from ships, from dwelling houses, and on navigable rivers:-That it was expedient to repeal so much of the statute 9 Geo. 1, commonly called the Black Act, as creates capital felonies, excepting the crimes of setting fire to a dwelling house, and of maliciously shooting at an individual; so much of the statute 26 Geo. 2, c. 33, commonly called the Marriage Act, as creates capital felonies; so much of the statute 21 Jac. 1. c. 26, relating to fines and recoveries; of 6 Geo. 2, e. 37, relating to cutting down

* See Ann. Reg. Vol. LXIV. p. 86.

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banks of rivers; of 27 Geo. 2, c.

of 27 Geo. 2, c. 19, relating to the Bedford level; of 3. Geo. 3, c. 16, relating to Greenwich pensioners; of 22 Geo. 3, c. 4, relating to cutting serges; and of 24 Geo. 3, c. 24, relating to convicts returned from transportation, as subjects persons convicted of the offences therein specified, to the punishment of death:-That it was expedient to take away the punishment of death in the cases of horse stealing, sheep stealing, and cattle stealing, of forgery, and of uttering forged instruments:-That in the case of all the aforesaid offences, which are not otherwise sufficiently punishable by law, the punishments of transportation for life or years, or of imprisonment with or without hard labour, should be substituted for death, in such proportions and with such latitudes of discretion in the judges, as the nature and magnitude of the respective offences might require;-That it was expedient to make provision, that the judges should not pronounce sen

tence of death in those cases where they had no expectation that such sentence would be executed;-and that it was fit to take away the forfeiture of goods and chattels in the case of suicide, and to put an end to those indignities to which the remains of the dead are exposed, in the cases of suicide and high treason. Sir James, with his usual eloquence, expatiated on the general principles, on which the necessity of mitigating our criminal code is ordinarily enforced, and illustrated the propriety of the particular changes which he had recommended.

Mr. Peel, while he acceded in general to the principles expressed by the mover, objected to the course which he had followed. He contended, that the proper mode of proceeding would have been to have asked leave to bring in a bill upon each of the heads included in the resolutions, and that great inconveniences might be the result of following the course now proposed. The House, by assenting to the resolutions, would affirm all the propositions laid down in them; and yet a bill, brought in pursuant to those propositions, might ultimately be found not worthy of being supported throughout. While the resolutions professedly followed the report of the committee on crimi nal law, they in truth comprehended cases not referred to in that report. The offences of stealing sheep, cattle, and horses were not referred to in the report, and yet the resolututions proposed to take away the capital punishment from them. That the hon. and learned gentleman had been misled by the report, was plain; and being so misled as to facts and cases wholly omitted in that report, was it fair that

without any notice given to the House of the objects of his resolutions, they should be called on to give a distinct opinion upon so many important alterations of the law? Suppose the House to affirm the resolutions that night, and afterwards to find themselves unable to assent to the bills brought in pursuant to them, would not that be an inconvenient situation for the House to be placed in? Was there nothing inconvenient in the rejection of a bill brought in to remedy defects, which the journals of the House would show to have been fully and clearly admitted? The right hon. secretary then discussed the merits of several of the proposed alterations; and, while he announced the intention of government to bring in bills for carrying some of them into effect, he showed that others of them were of very doubtful expediency. He concluded by moving the previous question.

Sir James Mackintosh, though several of his friends expressed their opinion that he now sought to pledge parliament, without sufficient deliberation, to too many de tailed measures, persisted in taking the sense of the House upon his first resolution. The previous question was carried upon it by a majority of 86 to 76.

During the subsequent period of the session, four acts were introduced and passed, mitigating in some particulars, the severity of our penal code. By one of these,* the 6 Geo. 2nd, cap. 37, against unlawfully and maliciously breaking or cutting down the banks of rivers or sea-banks, whereby lands shall be overflowed or damaged, as also unlawfully and maliciously cutting

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hop-binds growing on poles in plantations of hops the 27th Geo. 2nd, cap. 19, against maliciously destroying any bank, mill, engine, flood-gate, or sluice, erected for draining and preserving the North Level (part of Bedford Level) and adjoining lands-and the 3rd Geo. 3rd, cap. 16, against knowingly and willingly personating or falsely assuming the name and character of persons entitled, or supposed to be entitled, to any out pension, or allowance of money, from the commissioners or governors of the royal hospital for seamen at Greenwich, "in order to receive the money due, or supposed to be due, on such out-pension" were repealed, so far as they deprived persons convicted under them of the benefit of clergy; and, in lieu of the capital punishment, it was enacted that persons so convicted, "should be liable, at the discretion of the Court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned only, or to be imprisoned and kept to hard labour in the common gaol or house of correction, for any term not exceeding seven years." The same act also took away the penalty of death inflicted by the 4th Geo. 3rd, cap. 37, against "stealing, cutting, and destroying linen yarn, linen cloth, or manufactures of linen yarn, and the looms, tools, and implements used therein-by the 22nd Geo. 3rd, cap. 40, against destroying woollen, silk, linen, and cotton manufactures, and the tools, tackle, and utensils used therein;"--and by the 28th Geo. 3rd, cap. 55, against cutting and destroying frame-work-knitted pieces, stockings, and other like articles, and breaking, destroying, and damaging frames, machines,

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engines, tools, instruments, and utensils used in the same manufacture and machinery and it enacted, in like manner, that persons convicted under any of these three laws should be liable, at the discretion of the Court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned only, or to be imprisoned and kept to hard labour in the common gaol or house of correction, for any term not exceeding seven years. Another law restored the benefit of clergy to the offences included within the following acts

the 22nd Car. 2nd, c. 5, against stealing cloth from the rack, and stealing or embezzling the king's ammunition and stores-the 10th and 11th Wil. 3rd, c. 23 (as altered by 1st Geo. 4th, c. 117), against burglary, house-breaking, or robbery, in shops, warehouses, coachhouses, and horse-stealing; and the 24th Geo. 2nd, cap. 45, against robberies and thefts upon navigable rivers, ports of entry or discharge, wharfs and quays adjacent. Adopting, instead of death, the same species and degrees of punishment as were had recourse to in the previous innovation, it enacted, that every person-who should be lawfully convicted of cutting, taking, stealing, or carrying away any cloth or other woollen manufactures, from the rack or tenters in the night-time; or of stealing or embezzling his majesty's ammunition, sails, cordage, or naval or military stores; or of privately stealing any goods or chattels in any shop, warehouse, coach-house, or stable; or of stealing any goods wares, or merchandise in any ship,

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barge, lighter, boat, or other vessel or craft, upon any navigable river or canal, or in any port of entry or discharge, or in any creek belonging to any such river, canal, or port, or from any dock, wharf, or quay adjacent to any such river, canal, or port; or of procuring, counselling, aiding, or abetting any such offender-should be liable, at the discretion of the Court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned only, or to be imprisoned and kept to hard labour in the common gaol or house of correction, for any term not exceeding seven years."

The custom of pronouncing sentence of death upon great numbers, upon whom, from the circumstances attending their crimes, there was scarcely a chance that it would be actually inflicted, was rightly deemed to be an imperfection in our system: since it much diminished the solemnity of a proceeding so awful as that of passing final doom upon a fellow creature ought ever to be. To remedy this evil, a law was passed,* which enacted, that whenever any person shall be convicted of any felony except murder, as shall by law be excluded the benefit of clergy in respect thereof, and the Court shall be of opinion that, under the particular circumstances of the case, the offender is a fit object of the royal mercy, the Court may, if it shall think fit, direct the proper officer to ask, "whether such offender hath any thing to say, why judgment of death should not be recorded against him;" that if the offender shall allege nothing sufficient in law to arrest or bar such judgment, the Court is autho

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

rised to abstain from pronouncing judgment of death, and, instead thereof, to order such judgment to be entered, which accordingly shall be entered of record in the usual form, and in the same manner as if judgment of death had actually been pronounced in open Court; and that such record shall have the like effect, and be followed by all the same consequences, "as if such judgment had actually been pronounced in open Court, and the offender had been reprieved by the Court."

The mode of interment, which a long-continued custom had caused (though unsupported by express authority) to be regarded as law, was in many respects revolting to every natural feeling. To remove this stain from our national usages, a law* was passed, which enacted that, for the future, it should not be lawful for any coroner, or other officer having authority to hold inquests, to issue any warrant or other process directing the remains of persons, against whom a finding of felo de se should have been had, to be interred in any public highway; but that such coroner or other officer should give directions for the private interment of the remains of such person felo de se (without any stake being driven through the body of such person) in the church-yard or other burialground of the parish or place, in which the remains of such person might, by the laws or customs of England, be interred, if the verdict of felo de se had not been found against him; such interment to be made within 24 hours from the finding of the inquisition, and to take place between the hours of nine and twelve at night.-The

* 4. Geo, 4th. c. 52; passed July 8.

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act, however, gave no authority for performing any of the rights of Christian burial on such interment; and contained a salvo of the laws and usages relating to the burial of such persons, in all other respects than those which we have mentioned.

In consequence of petitions from the merchants of London and of Liverpool, a committee was appointed to take into consideration the state of the law between principal and agent. Upon this report, a bill was passed, enacting, that persons entrusted with goods for the purposes of sale, and in whose names such goods were shipped, either by themselves or by others, should be deemed the true owners thereof, so far as to entitle the consignees of the goods to a lien thereon in respect of advances made by them, without notice, to the apparent shippers, in like manner as if the latter had been the real owners.

The numerous formalities, required for the celebration of marriage by the law of the preceding year, had excited much clamour, especially among the lower classes of people: and the effect of that, which had been intended merely as a preventive of clandestine and improper matrimonial connexions, had produced a great diminution in the annual number of marriages. In the very beginning of the present session, the evil was removed for the time, by repealing nearly all the provisions of the late act; and a committee of the lords was appointed to frame a permanent bill on this important subject.+ A bill, founded on the report of that committee, was introduced by the archbishop of Canterbury. One

4 Geo. 4th, c. 83. + 4 Geo. 4th, c. 76.

clause in it provided, that the marriage of a minor by licence, without the consent of the parent or guar dian, should be voidable by suit, instituted by proper parties within twelve months from its solemnization. This clause was vehemently opposed by the archbishop of York, the bishop of Chester, and lord Ellenborougb. One objection was, that the precaution might be defeated either by going to Scotland or the continent, or by marrying by bans: but the principal topic of argument was of a religious nature. To make marriage voidable was, they contended, contrary to the Christian code. The divine legislator directed, that "a man shall leave father and mother, and cleave unto his wife, and they twain shall be one flesh." He had said also, "what God hath joined together, let not man put asunder:" and had ordained, that wives should not be put away, save for adultery. Taking these texts together, it was obvious that the law of man ought to be made agreeable to the expressed law of God. Marriages were at present solemnized by the law of God, and by the law of man. It was worse than a mockery to say, that a man might be married with all the sanctities which religion could confer upon the contract, and yet, that, after a minister of the gospel had pronounced him married in the name of the Father, the Son, and the Holy Ghost, the caprice of parents should undo so solemn a compact. As to the moral tendency of the clause, what else was it in effect, than to gratify the pride and avarice of parents, at the cost of the ruin and degradation of an innocent female and the bastardizing of her children?

The Lord Chancellor observed,

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