Billeder på siden
PDF
ePub

ABOLITION OF THE PUNISHMENT OF DEATH FOR PRIVATELY STEALING FROM THE PERSON.

VIII ELIZ. Cap. IV.

An Act to take away the Benefit of Clergy from

certain Offenders for Felony.

WHERE a certain kind of evil-disposed persons, He that taketh

away privily from the Person of ano

or Goods, not knowing thereof, shall

not have his

Clergy, &c.

commonly called cut-purses, or pick-purses, but indeed by the laws of this land, very felons and thieves, do confeder together, making among themselves, as it were, a brotherhood or fraternity of an art or mystery, to live idly by the secret spoil of the good and true subjects of this realm; (2) And as well at sermons and preachings of the word of God, and in places and time of doing service and common prayer in churches, chapels, closets, and oratories; and not only there, but also in the Princes' palace, house, yea, and presence, and at the places and courts of justice, and in the times of the ministration of the laws in the same, and in fairs, markets, and other assemblies of the people; yea, and at the time of doing of execution of such as been attainted of any The impudent murder, felony, or other criminal cause, ordained chiefly for terror and example of evil doers, do with- and pickout respect or regard of any time, place, or person, or of any fear or dread of God, or any law or punishment, under the cloak of honesty, by their outward apparel, countenance, and behaviour, subtilly, privily, craftily, and feloniously take, the goods of

boldness of cut purses

purses

2 Rol. 154.

divers good and honest subjects, from their persons, by cutting and picking their purses, and other felonious sleights and devices, to the utter undoing and impoverishing of many :

II. Be it therefore enacted by the authority of this present parliament, That no person or persons, which hereafter shall happen to be indicted or appealed for felonious taking of any money, goods, or chattels, from the person of any other, privily without his knowledge, in any place whatsoever, and thereupon found guilty by verdict of twelve men, or shall confess the same upon his or their arraignment, or will not answer directly to the same, according to the laws of this realm, or shall stand wilfully, or of malice, or obstinately mute, or challenge peremptorily above the number of twenty, or shall be upon such indictment or appeal outlawed, shall from henceforth be admitted to have the benefit of his or their clergy, but utterly be excluded thereof, and shall suffer death in such manner and form as they should if they were no clerks.

This law continued unaltered from the year 1565, till the year 1808.

Dr. Paley in his defence of the mode of administering penal law in England, a work published about the year 1785, says:

"There is, however, one species of crimes, the making of which capital, can hardly I think be defended even upon the comprehensive principle just now stated; I mean that of privately stealing from the person. As every degree of force is excluded by the description of the crime, it will be difficult to assign an example, where either the amount or circumstances of

the theft place it upon a level with those dangerous attempts to which the punishment of death should be confined. It will be still more difficult to shew, that without gross and culpable negligence on the part of the sufferer, such examples can ever become so frequent, as to make it necessary to constitute a class of capital offences, of very wide and large extent.”

May 18, 1808.

Sir Samuel Romilly rose to make the motion of which he had given notice, for some amendments of the criminal law. He was aware that from that part of the public, and particularly that part of it whose opinion might be supposed to have most influence upon his conduct, a person who had such amendments to propose could hardly expect praise, but must consider it enough if he meets with excuse. His apology must be, that he had not taken up the matter lightly or on a sudden; that the subject which he had presumed to bring before the house, was one which had occupied his thoughts for many years of his life. He had long ago promised himself, that if ever he should have the honour of a seat in this house, he would bring forward some measures for reforming the criminal law, and, recollecting this, he could not but feel that he ought rather to apologize for having delayed the proposal so long, than for bringing it forward now..

In the criminal law of this country, he had always considered it as a very great defect, that capital punishments were frequent; and were appointed, he could not say inflicted, for so many crimes. No principle could be more clear, than that it is the certainty, much more than the severity of punishments, which renders them efficacious. This had been acknowledged ever since the publication of the works of the Marquis Beccaria; and he heard, he could not himself remember it, that upon the

L

that prerogative, the crown has the painful duty imposed upon it, of selecting those upon whom the judgment of law shall be executed. In London and Middlesex, this is done by the privy council, but upon all the circuits this duty devolves upon the different judges of assize; and is felt by them to be the most painful of their duties. No rules are laid down to govern them in the discharge of it, but they are left to their own discretion, which must necessarily be as various as their different habits, and sentiments, and modes of thinking. It may be the opinion of one judge, that punishments ought to be inflicted most strictly where crimes are most frequent; another, with the same anxiety for the discharge of his duty, thinks that it is most useful to be rigorous when crimes make their first appearance. One judge is most influenced by humanity; another more swayed by a sense of what is due to the safety of the community. And thus, their discretion is apt to be exercised under motives, not only different, but quite contrary. The question was, what should be the remedy? Being sensible that, when a private individual takes upon himself to propose alterations in the law, it becomes him to proceed very cautiously, to do at first too little rather than too much, to alter and yet not seem to innovate, and to have the test of experience in favour of his first essays at improvement, before he proceeds to propose all that he would have established; being strongly impressed with this, he had at first intended only to repeal the statutes, and to propose others in the same words, only with sums equivalent to the value of what was originally fixed by the legislature; and by re-enacting the laws such as by the authors of them they were meant to be, to repeal those statutes which time and a change of circumstances had imperceptibly substituted in their place. But when he found that he would thus be enacting capital punishments for offences, in which there are no circumstances of aggravation, he could not bring his mind to do it, and he determined to propose the simple repeal of all those statutes. As, however, they will require different considerations, he judged it most expedient to bring them one by one, under the review of the house; and he proposed, therefore, to begin with the most objectionable, the 8th of Elizabeth, chap. 4,

which made stealing privately a capital offence, declaring it at the same time to be his intention, and wishing it to be understood, that he will at proper times bring forward a repeal of the others. The unnecessary severity of the 8th of Elizabeth, its absurdity and want of logic, made it a disgrace to the statute book. (Read the preamble and first enacting clause.*) Reciting that the offence was sometimes committed under circumstances which were an aggravation, therefore it enacts that in all cases, and although there was no aggravation, clergy should be taken away. In his time, he never had heard but of one single instance in which an offender, convicted under this statute, suffered death; it was a case upon the northern circuit, where a pick-pocket detected in court, was immediately tried and left for execution. It was a solitary case as far back as he could remember, and even if that had been omitted, it would have been of no great misfortune. Under this statute, from the strict construction which the judges observed of the word "privily," that very violence which would be an aggravation of the offence, if it is not such as to amount to robbery, saves the offender. There was another subject, which he thought required the interposition of the legislature; it was to provide, in certain cases, a compensation to persons tried and acquitted, after having been long detained in prison. At present they have no compensation, except by an action for a malicious prosecution, where the judge is satisfied there was no probable cause. If suspicion of having committed a crime falls upon an individual in the labouring class of the people, whose family depends upon his daily wages for subsistence, he may lie eight months in gaol; for that is sometimes the interval between the summer and lent assizes; and in the four northern counties, he may be imprisoned above a year. His family in the mean time is, probably, consigned to the workhouse, and when he returns home after an acquittal which completely establishes his innocence, he finds them ruined in their health or corrupted in their morals. If, for the convenience or utility of the public, private property is ever interfered with by the authority of parlia

Ante page 143.

« ForrigeFortsæt »