¹ 4 Comm. Christian's ed., (1830), p. 245.Google Scholar

² The activities of Robert Hood and his followers gave rise to so many important penal statutes that Coke, 3 Inst. 197Google Scholar, devotes a short chapter to them, which he opens with the following picturesque paragraph: ‘It is an English Proverbe; That many men talk of Robin hood, that never shot in his bow: and because the statutes and records hereafter mentioned cannot well be understood, unlesse it be known what this Robin Hoode was that hath raised a name to these kinde of men called Roberdsmen, his followers, we will describe him.’ Coke represents him as being nothing more than a brigand who lived ‘in woods and deserts, by robbery, burning of houses, felony, waste and spoile, and principally by and with vagabonds, idle wanderers, night walkers, and draw-latches:… And albeit he lived in Yorkshire, yet men of his quality took their denomination of him and were called Roberdsmen throughout all England.’ This description is somewhat misleading, for its takes no account of the social background of the criminality of Hood and his followers. See, on this subject, Ribton-Turner, C. J., History of Vagrants and Vagrancy and Beggars and Begging (1887), pp. 30–31.Google Scholar

³ ‘Though large herds of deer do much harm to the neighbourhood, yet the injury to the morals of the people is of more moment than the loss of their crops. The temptation is irresistible, for most men are sportsmen by constitution: and there is such an inherent spirit for hunting in human nature, as scarce any inhibitions can restrain. Hence, towards the beginning of this century, all this country was wild about deer-stealing. Unless he was a hunter, as they affected to call themselves, no young person was allowed to be possessed of manhood or gallantry. The Waltham blacks at length committed such enormities, that government was forced to interfere with that severe and sanguinary act called the Black Act, which now comprehends more felonies than any law that ever was framed before. And, therefore, a late bishop of Winchester (Dr. Hoadly) when urged to stock Waltham Chase, refused, from a motive worthy of a prelate, replying that “It had done mischief enough already”.’ Bell, 's ed. of 1877, vol. I, pp. 19–20.Google Scholar

⁴ I P. C. (1795), p. 630, sect. 4.

⁵ State Trials, vol. XVI, 1812, Howell, T. B.'s ed., p. 744.Google Scholar This unique collection has not yet been fully exploited, though it is hardly possible to over-estimate its value from a broader historical as well as legal point of view. See, on this subject, the delightful study of Stephen, Leslie: ‘The State Trials,’ in Hours in a Library (1892), vol. III, pp. 306–338.Google Scholar

⁶ Blackstone, , 4 Comm. 34.Google Scholar

⁷ 2 P. C. Emlyn, 's ed. (1736), p. 336.Google Scholar

⁸ This expression may be considered as the equivalent of the phrase, quoted above, from the Waltham Black Act, i.e., ‘every person so offending.’

⁹ 4 Comm. 373.Google Scholar

¹⁰ Foss, E., A Biographical Dictionary of the Judges of England (1870), p. 279.Google Scholar In it Foss also quotes the following passage from Churchill's ‘Rosciad’:—

‘Each judge was true and steady to his trust,

‘As Mansfield wise, and as old Foster just.’

¹¹ For Foster's views on this subject, see below, footnote¹⁴.

¹² 1 Leach, , 66–69Google Scholar, note (a). This decision was also endorsed by Lord Mansfield, in R. v. John Royce (1767) 4 Burr. 2075.Google Scholar

¹³ Both Sims and Midwinter were afterwards reprieved.

¹⁴ Michael Dodson, a nephew of Foster and himself a lawyer, appended to his edition (3rd) of Foster's treatise, a memorandum composed by the latter when he was trying this case, embodying his reasons for not concurring with all the other Judges; see Crown Law (1792), pp. 416–430.Google Scholar This memorandum,—surveying the legal position of principals in the second degree under the main statutes prescribing capital punishment without benefit of clergy,—constitutes a masterly exposition of this intricate branch of English criminal law up to the middle of the eighteenth century. As regards the point at issue, according to Dodson, Foster's exposition amounted ‘to a demonstration, that all those learned judges have mistaken the law. Sims might deserve as severe a punishment as Midwinter; but no punishment which is not authorised by law ought to be inflicted on any man, and the point is, whether the law in this case hath provided the same punishment for both.’ Ibid., pp. iv–v.

¹⁵ The Coal-Heavers Case (1768) 1Google ScholarLeach, , 64.Google Scholar

¹⁶ By using the expression ‘who are guilty’—unknown to the statute—the Judges most probably intended to indicate what according to them was the actual meaning of the expression ‘every person so offending’ occurring in the statute.

¹⁷ In his reference to this case, Dodson was right in observing that ‘This case is exactly similar to the case of Midwinter and Sims; and if Mr. Justice Foster's opinion in that case be well-founded, namely, that the benefit of clergy is taken away only from persons actually committing the offence, it follows necessarily, that three of these men suffered a more severe punishment than the law authorizeth.’ Preface to Foster, 's Crown Law (1792), p. vii.Google Scholar

¹⁸ The ruling given in the Coal-Heavers' Case had also had a direct bearing on certain essential rules of criminal procedure and made the operation of the Black Act still more stringent. See, on this point, below, p. 68.

¹⁹ History of Criminal Law, vol. II, p. 212.Google Scholar

²⁰ The Chief Sources of English Legal History (1926), p. 327.Google Scholar

²¹ See class (7) at p. 57, above.

²² The time period specified by the statute is forty days.

²³ The several facts mentioned in the Act are not to be taken as being parts of the same offence, but are each of them a separate offence. R. v. Baylis and Reynolds (1736)Google Scholar Cas. T. Hard. 292. It would seem that Lord Hardwicke was wrong in interpreting this clause of the Act as if it was irrelevant whether or not the persons were armed. See ibid. note¹.

²⁴ ‘Report from the Select Committee on Criminal Laws’ (1819), 585Google Scholar, in Parliamentary Papers (1819), vol. VIII, p. 1Google Scholar; Minutes of Evidence, pp. 49–50.Google Scholar

²⁵ The Life and Correspondence of Philip Yorke Earl of Hardwicke, Lord High Chancellor of Great Britain, bv Philip C. Yorke (1913), 3 vols. Reference is made to vol. I, p. 132.Google Scholar

²⁶ Gentleman's Magazine (1736), vol. VI, p. 422.Google Scholar

²⁷ For an instructive analysis of 1 Hen. VII, c. 1, see Coke, 3 Inst. 74–77.Google Scholar It is also interesting to note that according to Coke this statute compares disadvantageously with what he calls the good old statutes of carta de foresta. He refers to 1 Hen. VII, c. 1. as ‘this new and ill penned law’ and points out that it was owing to its excessive severity that the Judges interpreted it ‘strictly,’ putting upon it what he calls ‘a favourable construction.’ Obviously his main objections a fortiori may be directed against the Black Act.

²⁸ 2 P. C. (1803), pp. 609–610.

²⁹ 16 Geo. III, c. 30.

³⁰ If the offence is committed by persons unarmed.

³¹ R. v. John Davis (1783) 1Google ScholarLeach, , 271.Google Scholar

³² See, on this subject. 3 Jac. I, c. 13, and 22 & 23 Car. II, c. 25, s. 7.

³³ For the very strict interpretation put upon this clause, see the case of Thomas Ross, tried in 1800 before Chambre J. and afterwards referred to all the Judges for their consideration. In this case it was established that the object of the prisoners was to steal the fish and not to let them escape through the breach in the mound; the Judges therefore concluded that the conviction was wrong, as the clause against breaking the heads, etc. of ponds did not extend to cases where the purpose of the party was to steal the fish, which were protected by another clause of the Act, and that even if the offence proved had been originally within the Black Act it was virtually taken out of it by the subsequent statute of 5 Geo. III, c. 14. Russell, , Crimes and Midemeanours (1819) vol. II, p. 1711.Google Scholar

³⁴ See, for instance, Lecky, , History of England in the Eighteenth Century (1903). vol. VII, p. 317.Google Scholar

³⁵ Though the statute uses the word ‘trees’ in the plural, and other Acts relating to similar offences, such as 6 Geo. III, c. 36, or 6 Gco. III, c. 48,. speak of ‘tree or trees,’ it was maintained that the expression in the Black Act might also be construed singulariter. The reason for this construction was the same as caused it to be considered that though 22 & 23 Car. II, c. 7, s. 2, made it a felony to burn any ricks or stacks of corn, etc. in the night, yet the burning of only one rick, etc., was within the statute. Russell, , Crimes and Misdemeanours (1819), vol. II, p. 1702.Google Scholar

³⁶ See ‘Report from the Select Committee on Criminal Laws’ (1819), 585Google Scholar, in Parliamentary Papers, vol. VIII, p. 1Google Scholar; Minutes of Evidence, p. 45.Google Scholar

³⁷ Ibid., p. 87. This petition, addressed to the Secretary of State at the Home Office, Lord Sidmouth, contained a paragraph which throws a vivid light on an important jurisprudential and social aspect of certain capital statutes to which no adequate attention was paid, particularly by those mainly responsible for the framing of such laws: ‘I beg leave to suggest to your lordship, that I am well assured, when he committed the act for which he stands condemned, (viz., cutting down the trees,) he was not sensible of the heinousness of the offence, or aware of the punishment which awaited it; and I believe very few of the lower orders of the people are acquainted with the terms of the Black Act.’ Ibid., p. 88.

³⁸ Ibid., p. 6. Accordingly, the Committee recommended that penal laws that had not been implemented in Middlesex for more than a century, in the counties round London for sixty years, and in the extensive district of the Western circuit for fifty, might safely be concluded to be either unsuitable or superfluous and ought therefore to be expunged from the statute book. Ibid., p. 5. This was undoubtedly a very imaginative and arresting proposal. In England, however,—according to DrAllen, C. K.—‘Age cannot wither an Act of Parliament, and at no time, so far as I am aware, has it ever been admitted in our jurisprudence that a statute might become inoperative through obsolescence.’ Law in the Mating (1939), p. 393.Google Scholar Possibly the Committee's proposal was an offspring of the doctrine of desuetude which was accepted in some cases up to the end of the eighteenth century, and according to which ‘if a statute had been in existence for any considerable period without ever having been put into operation, it might be treated as null.’ See Allen, ibid. footnote ⁴, p. 394. Apparently in Scotland, Acts can go into disuse by a posterior contrary custom; Allen quotes in support of this statement the opinion of the great Scottish jurist and comparative lawyer, Stair, , Inst., 12Google Scholar; and that of Erskine, , Principles of the Law of Scotland, 6.Google Scholar

³⁹ R. v. John Paty (1770) 1Google ScholarLeach, , 72.Google Scholar The sentence was later commuted to transportation and upon a strong application from the county, a free pardon was ultimately granted. The Courts, however, refused to put a restrictive construction upon this part of the clause; thus in the case of Robert Mott, tried at the Old Bailey September Session in 1783 and convicted of wounding a gelding, Hotham B., acting on the authority of the John Paty Case, overruled an objection in arrest of judgment; 1 Leach, 73, note (a). Similarly in the case of R. v. James Whitney, the Judges to whom the case was referred for consideration determined that asses were cattle within the meaning of the Act: 1 M. C. C. (1824) 3. In the case of R. v. Sarah Chapple, pigs were held to be cattle within the meaning of the Act; Russ. & R. (1804) 77.

⁴⁰ In the case of John Haywood, the horse was rendered useless to the owner, and continued so at the time of the trial, the offender having driven a nail into the frog of the horse's foot; it was stated, however, that it would be perfectly sound again in a short time. Judgment was respited after conviction, on the doubt whether,—as the horse was likely to recover and the wound was obviously not a permanent injury,—the offence was within the statute. The Judges held the conviction right and considered the word ‘wound’ to be used in contradistinction to a permanent, injury, such as maiming; East, 2 P. C. 1076–77, § 20.

⁴¹ See R. v. Pearce (1789) 1Google ScholarLeach, 527Google Scholar, and R. v. Shepherd (1790) 1Google ScholarLeach, , 539.Google Scholar

⁴² East, 2 P. C. 1074, § 16; and Russell, , On Crimes, II, 1687–88.Google Scholar

⁴³ 22 & 23 Car. II, c. 7, s. 2.

⁴⁴ See above, footnote³⁵.

⁴⁵ It should be noted that as regards the essential part of the offence in question, i.e., the ‘setting fire to.’ the Black Act did not go beyond the rules laid down by the Common Law. This meant that there must be an actual burning, neither an intention, nor even an attempt to burn a house by setting it on fire being an offence within the Act, unless a part of it was burned; however, it was not necessary that any part of the house should be wholly consumed by fire, the offence being complete even if the fire was put out, or went out by itself. Also, the burning had to be malicious and wilful, failing which it was only a trespass. On the other hand, this malicious and wilful burning need not correspond exactly with what the party had intended and set out to accomplish. See Coke, 3 Inst. 66Google Scholar; Hale, , 1Google Scholar P. C. 566, 568, 569; Hawkins, , 1Google Scholar P. C. 298, ch. 39, sects. 16 and 17; East, 2 P. C. 1019, ch. 21, § 3, and 1020, ch. 21, § 4.

⁴⁶ See R. v. Gastineaux (1786) 1Google ScholarLeach, , 417.Google Scholar

⁴⁷ R. v. Empson (1781) 1Google ScholarLeach, , 224Google Scholar; see also R. v. Weston (1782) 1Google ScholarLeach, , 247.Google Scholar

⁴⁸ Principles of Penal Law (2nd ed. 1771). p. 255.Google Scholar Eden is remembered in history as a close friend of Pitt and a very able ambassador to France and the Netherlands, where he concluded important commercial treaties. He also played a conspicuous rôle in furthering the movement for the reform of criminal law and the penal system in the eighteenth century. In this field he was undoubtedly a pioneer. Together with Blackstone and Howard he was instrumental in procuring a leading statute concerning the prison system of the country, while his book Principles of Penal Law is the first modern English treatise on the subject of penal law and criminal policy. Eden was strongly impressed by Cesare Beccaria and was much more critical of the penal system then prevailing in England than his contemporary Blackstone. Sec Dictionary of National Biography, VI, 362Google Scholar, and SirHoldsworth, William, History of English Law, vol. XII, pp. 364–365.Google Scholar

⁴⁹ See above, Coal-Heavers' Case, p. 59.Google Scholar

⁵⁰ 1 Leach, , 357.Google Scholar

⁵¹ At the conference Gould J. mentioned the Coal-Heavers' Case, and Eyre B. said that several might be guilty of the same act of shooting ‘as if a string were tied to the trigger, and they all pulled it.’ See 1 Leach, , 359Google Scholar, note (a). When afterwards, in the case of R. v. Young and Others, , Buller J. said: ‘Three persons were indicted on the Black Act, for shooting at the prosecutor: they were all charged with the single act; and the indictment was held by all the Judges of England to be sufficient,’Google Scholar he was most probably referring to the conference held on the case of Gibson, Mutton and Wiggs; (1789) 3 T. R. 105.Google Scholar

⁵² Belated by East, 1 P. C. 414, ch. VIII, § 7.

⁵³ Thus in the case of Page and Harwood tried under 1 Jac. I, c. 8, which enacted that ‘every person which shall stab or thrust,’ etc., shall suffer death without benefit of elergy, two persons were present aiding and abetting a third person who made the thrust. These two persons ‘though agreed to have been principals in manslauter at common-law, were admitted to their clergy. For,… though in judgment of law every one present and aiding is a principal, yet in the construction of this statute which is so penal, it shall be extended only to such as really and actvally made the thrust; not to those who in construction of law only may be said to make it.’ Foster, , Crown Law, pp. 355–356.Google Scholar See also the case of Evans and Finch, tried under 39 Eliz., c. 15, for robbery in a dwelling-house. Ibid., pp. 356–357.

⁵⁴ R. v. Robinson (1796) 2Google ScholarLeach, , 749.Google Scholar The case was tried by Lawrence J. and was afterwards referred for consideration to all the Judges, their opinion upon it being delivered by Buller J. A very able and learned defence was put up for the prisoner by hit counsel, Randall Jackson. Ibid. pp. 756–764.

⁵⁵ Whereas the clause described the offence ‘that if any person or persons (whether armed or disguised or not), shall knowingly send any letter without any name subscribed thereto, or signed with a fictitious name, demanding money, ransom, or other valuable thing,’ the preamble of the statute reads: ‘several ill-designing and disorderly persons have of late associated themselves under the name of Blacks,… and have likewise solicited several of His Majesty's subjects, with promises of money, or other rewards, to join with them, and have sent letters in fictitious names, to several persons, demanding venison and money, and threatening tome great violence (our italics), if such, their unlawful demands, should be refused, or if they should be interrupted in, or prosecuted for such, their wicked practices, and have actually done great damage to several persons, who have either refused to comply with such demands, or have endeavoured to bring them to justice, to the great terror of His Majesty's peaceable subjects.’

⁵⁶ 2 Leach, , 765.Google Scholar On the rôle played by preambles in the interpretation of statutes during the period with which we are now concerned, see SirDwarris, Fortnnatus, A General Treatise on Statutes, etc. (2nd ed. 1848), pp. 503–508, 659–660 and 664.Google Scholar From some of the observations in this treatise it would appear that the counsel for the defence's objection in the case of Robinson was on the whole not so unjustified.

⁵⁷ This was subsequently altered by the enactment of 2 Geo. II, c. 25.

⁵⁸ See the cases of Jepson and Springett, of Heming and of Lloyd; East, 2 P. C. 1115 ch. 23, § 2; 1116; and 1122–23, ch. 23, § 5, respectively.

⁵⁹ However, it must be mentioned that concomitantly with this judicial tendency to prevent the suspension of this clause through a too rigid interpretation of it, great care was also taken not to extend its operation too far, particularly in view of the highly penal consequences of infringing the relevant law. The following are the salient points of this restraining trend: first, it was determined that the clause might only be put into effect if an actual demand were made, and not when letters had been sent with a view or intent to extort money but without directly demanding it. Secondly, a distinction was established between a letter and ‘writing,’ the latter being excluded from the clause of the Black Act. Thirdly, no case was to be considered to be within the statute if the writer made himself known in the letter, even though he did not append his name. Fourthly, it was also settled that the act of delivering a threatening letter was outside the scope of 9 Geo. I, c. 22, even were the letter delivered by the husband of the writer.

⁶⁰ Blackstone, , 4 Comm. 304.Google Scholar But it was expressly laid down by the Judges that he could not exercise this right for the purposes of injustice and oppression, for the words of the statute are ‘… And for the better and more impartial trial of any indictment or information…’ See R. v. Mortis (1771) 1Google ScholarLeach, , 73.Google Scholar

⁶¹ 4 Comm. 18.Google Scholar

⁶² The difference in these estimates is to be explained by the fact that the legislature was continually adding to the number of capital offences throughout the whole of the eighteenth century. Thus in the reign of George II thirty-three Acts were passed creating capital offences,—roughly one for every year of the reign. In the first fifty years of the reign of George III, that is in the years 1760–1810, no less than sixty-three capital Acts were incorporated in the Statute Book; the number of capital offences which these statutes created was of course much greater.

⁶³ See for instance the trial of Richard Parvin and his six associates who were convicted under this Act of murder and deer-stealing and executed in 1723; The Complete Newgate Calendar, ed. by Crook, G. T. (1926), vol. II, p. 306.Google Scholar

⁶⁴ See, for instance, the stimulating remarks of W. E. Wahlberg, a distinguished Austrian professor of criminal law and procedure, in his Criminalistische und nationalökonomische Gesichtspunkte, Wien (1872), pp. 96–101Google Scholar, concerning what he calls ‘das ökonomische Prinzip im Strafreohte.’

⁶⁵ 37 Geo. III, c. 70, owed its origin to the mutiny at the Nore in 1797. It is interesting to note that when Pitt introduced this bill he did not intend to make the offence in question more than an aggravated misdemeanour, to be punished by fine, imprisonment or transportation. And when Serjeant Adair made his speech urging the capital penalty, Pitt expressed doubts ‘whether an increase of punishment was likely to be attended with the success the learned gentleman seemed to expect,’ and further declared ‘that it would carry with it more terror, but whether the execution of it would be more effective he doubted.’ When the bill came into committee, however, Sir John Mitford, afterwards Lord Redesdale, and at that time Solicitor-General, proposed the words ‘guilty of felony… without benefit of clergy’; the Commons were on the whole against the more moderate punishment proposed by Pitt, and the government did not oppose Mitford's suggestion. See Parl. Hist. (1797–1798), vol. XXXIIIGoogle Scholar, cols. 810and815resp. 37 Geo. III, c. 70, was continually prolonged and was finally made permanent by 57 Geo. III, c. 7.

⁶⁶ Parl. Hist. (1800–1801), vol. XXXV, cols. 770, 771 and 773.Google Scholar

⁶⁷ ‘Among the several cloudy appellatives,’—wrote Bentham, that somewhat impatient and radical, but very great, legal reformer,—‘which have been commonly employed as cloaks for misgovernment, there is none more conspicuous in this atmosphere of illusion than the word Order.’ Works, Bowring's edition, vol. II, p. 441.

⁶⁸ First in 1726 by 12 Geo. I, c. 20.

⁶⁹ 31 Geo. II, c. 42.

⁷⁰ Yorke, P. C., The Life and Correspondence of Philip Yorke, Earl of Hardwicke, Lord High Chancellor of Great Britain (1913), vol. I, p. 135.Google Scholar

⁷¹ In his classical exposition of the relation between Law and Public Opinion in England, A. V. Dicey makes the following observation on the subject of emergency laws: ‘It is far, indeed, from being true that laws passed to meet a particular emergency, or to satisfy a particular demand, do not affect public opinion; the assertion is at least plausible, and possibly well founded, that such laws of emergency produce, in the long run, more effect on legislative opinion than a law which openly embodies a wide principle. Laws of emergency often surreptitiously introduce or reintroduce into legislation, ideas which would not be accepted if brought before the attention of Parliament or of the nation.… Laws, indeed, passed for a limited or practical purpose—described as they are by the far too complimentary term of tentative legislation—exert the greater moral influence because they fall in with our English preference for dealing only with the special matter actually in hand, and with our profound reverence for precedent. Yet this apparent prudence is, in reality, often no better than the height of rashness. A principle carelessly introduced into an Act of Parliament intended to have a limited effect may gradually so affect legislative opinion that it comes to pervade a whole field of law.’ (1930), pp. 45–46.

⁷² See above, p. 67.

⁷³ Above, p. 69. See, for instance, the following statutes: 27 Geo. II, c. 15; 10 Geo. II, c. 32 (s. 6); 9 Geo. III, c. 29 (s. 2); 12 Geo. III, c. 24 (s. 1); 33 Geo. III, c. 67 (s. 5); while the first relates to the offence of sending threatening letters, the remainder introduced the absolute capital sentence for new types of the offence of wilfully setting on fire.

⁷⁴ In his treatise on The Procedure of the House of Commons (1908), 2 vols.Google Scholar, Professor J. Redlich repeatedly emphasizes that ‘the procedure of the House of Commons, its order of business, was worked out, so to speak, as the procedure of an opposition, and acquired once for all its fundamental character’ (vol. I, p. 57).Google Scholar In this connection he also quotes the information given by a Parliamentary committee that no less than eighteen different questions, each with its corresponding division, were required for the passage of a bill through the House, without reckoning those of the committee stage; Redlich adds that this was the normal framework of the discussion on a bill, irrespective of all the conceivable variations of subsidiary motions, instructions, and motions for adjournment. Ibid. pp. 64–65.

⁷⁵ This remarkable tendency of the eighteenth century Parliaments to pass capital statutes is vividly reflected in the following two stories. In his great speech of 1819, Sir James Mackintosh mentioned the following fact which was imparted to him by Burke: once when the latter was about to leave the House, one of the messengers called him back, on which Burke replied that he was going on urgent business. ‘Oh,’ replied the messenger, ‘it will not keep you a single moment: it is only a felony without benefit of clergy!’ Burke also assured Mackintosh, that ‘although, as may be imagined, from his political career, he was not often entitled to ask favour from the ministry of the day, he was persuaded his interest was at any time good enough to obtain their assent to the creation of a felony without benefit of clergy.’ Parl. Deb. (1819), vol. XXXIX, col. 787.Google Scholar The other story we owe to Sir Thomas Fowell-Buxton, who heard it from Wilberforce, and related it to the House in the following terms: ‘Sir William Meredith happened one day to go into a committee-room, for the purpose of writing a letter; at one corner of which he observed a gentleman seated at a table, and seemingly asleep, to whom a clerk was reading a piece of parchment, which looked like an Act of Parliament. Sir William was continually interrupted by a kind of chorus, with which every paragraph concluded: “Shall suffer death without benefit of clergy.” At length SirWilliam, said, “What may this heinous offence be which you are visiting with so terrible a penalty ?”Google Scholar —“Why, Sir,” replied the legislator, “we country gentlemen have suffered much by depredations on our turnips—we have at length determined to put a period to the practice; and my good friend the minister has been so obliging as to allow me to make it death without benefit of clergy” ’ Parl. Deb. (N.S.) (1821), vol. V, col. 928.Google Scholar

⁷⁶ In this connection it should be noted that according to Dicey the very reactionary Combination Act of 1800 ‘precisely corresponded with the predominant beliefs of the time.’ According to the same author, the repressive legislation of 1819, embodied in the six well-known Acts ‘may have been unwise, but it was an attempt to meet a serious crisis and was the natural outcome of the public opinion which in 1819 and 1820 determined the action of Parliament.’ Dicey, , Law and Public Opinion in England (1930), pp. 99 and 103 resp.Google Scholar On the influence exercised by public opinion on the unreformed House of Commons, see also Porritt, E., The Unreformed House of Commons (1909), vol. I, pp. 267–282.Google Scholar

⁷⁷ (1817), Chap. IX ‘Of Crimes and Punishments,’ pp. 406–428Google Scholar; this book was first published in 1785 and went through a considerable number of editions, fifteen of which appeared during the author's lifetime. According to the D. N. B., XV, 103, Paley got £1,000 for his MS. from Faulder, who still made a good bargain. Paley's work was adopted as a Cambridge text-book.

⁷⁸ Parl. Deb. (1810), vol. XV, cols. 366–371.Google Scholar

⁷⁹ Paley's great influence may be judged from the fact that Romilly devoted a great part of his speech to refuting the latter's doctrine, though this very refutation had the effect of further strengthening the opposition to his scheme. For an illustration of this point it is intructive to read the following passage from the speech made by Windham, In reply to Romilly's exposition: ‘The system of morality contained in Dr. Paley's works was founded on the nature and moral fitness of mankind, and until man should become a different being from what he is at present, that system would continue to be the wisest and the justest for the guidance and government of mankind.’ Ibid. col. 371.

At the same time, Romilly received a letter of congratulation from Dugald Stewart, who wrote as follows: ‘Indeed, I have more than once lost my temper in discussing the merits of that part of his (Paley's ) book, with some of your countrymen, who were disposed to look up to him as an oracle both in politics and in morals. Your reply to him is, in my opinion, quite unanswerable.’ Quoted by Romilly, in his Memoirs (1840), vol. II, p. 305.Google Scholar

The influence of Paley's doctrine was so weighty, however, that as late as 1836 the Commissioners who drafted the Second Report on Criminal Law found it necessary to precede their recommendations on the reform of criminal law by a lengthy critical examination of Paley's opinions. For, as they put it, ‘they are all that could be said for the practice by an eminently acute and skilful reasoner; and because they are the arguments chiefly relied upon by those who have defended it when subjected to Parliamentary discussion.’ See ‘Second Report from His Majesty's Commissioners on Criminal Law’ (1836), 343Google Scholar, in Parliamentary Papers (1836), vol. XXXVI, p. 183.Google Scholar

⁸⁰ The two leading principles of Paley's penal doctrine are as follows: ‘The crime must be prevented by some means or other; and consequently, whatever means appear necessary to this end, whether they be proportionable to the guilt of the criminal or not, are adopted rightly, because they are adopted upon the principle which alone justified the infliction of punishment at all.’ According to Paley there are two methods of administering penal justice; the first; ‘assigns capital punishment to a few offences, and inflicts it invariably’; the second ‘assigns capital punishments to many kinds of offences, but inflicts it only upon a few examples of each kind.’ Secondly,—‘By the number of statutes creating capital offences, it (the law) sweeps into the net every crime which, under any possible circumstances, may merit the punishment of death; but, when the execution of this sentence comes to be deliberated upon, a small proportion of each class are singled out, the general character, or the peculiar aggravations of whose crimes render them fit example of public justice. By this expedient, few actually suffer death, whilst the dread and danger of it hangs over the crimes of many.’ Principles of Moral and Political Philosophy (1817), pp. 407, 410, and 411–412 resp.Google Scholar

⁸¹ Parl. Deb. (1811), vol. XIX, Appendix, cols. LXV–LXIX.Google Scholar Referring to the administration of capital statutes concerning lareeny, Sir William Grant said: ‘This universal confederacy amongst the middling classes of society not to punish these offences by death: this conduct of the higher orders in dispensing with the law, is to me conclusive evidence that in the advanced state of civilization in this country, the punishment of death is too severe for this crime.’ Ibid. col. LXVII.

⁸² See Journals of the House of Commons (1770–1772), vol. XXXIII, pp. 442a and 612a.Google Scholar See also the debates in the Commons (1772) recorded in the Parl. Hist. (1771–1774), vol. XVII, cols. 448–453.Google Scholar This move was initiated by Sir Wiliam Meredith and was supported among others by Charles James Fox. Burke also took an active part in it.

⁸³ Parliamentary Papers (1819), vol. VIII, p. 1.Google Scholar The chairman of the Committee was Sir James Mackintosh; Wilberforce, Scarlett, Fowell-Buxton, Brougham and Lord John Russell were among the members. The scientific and practical value of the Committee's Report is altogether exceptional, and it constitutes a permanent contribution to modern criminal science and penal policy. Professor Jerome Hall praises its ‘thoroughness… and the modernity of its approach,’ and justly says that ‘It is a document of rare importance for anyone interested in the effect of public opinion upon the actual operation of legal rules.’ Theft, Law and Society, Boston (1935), p. 102.Google Scholar

⁸⁴ The Quarterly Review was founded to counteract the intellectual influence of the famous organ of the Whigs, , the Edinburgh Review.Google Scholar Though on certain contemporary questions its outlook was more liberal than that of the ultra-Tories, its views on penal problems did not differ substantially from those of Ellenborough, Lord and Eldon, Lord; the Edinburgh ReviewGoogle Scholar on the other hand strongly supported the efforts at reform of Romilly and his successors. The influence of these two periodicals on the shaping of public opinion was considerable. According to Halévy, their combined circulation in 1814 was 20,000 copies, history of the English People (1924), vol. I, p. 443.Google Scholar

⁸⁵ See ‘Report from the Select Committee on Criminal Laws, etc.’ Quarterly Review (1821), vol. XXIV, No. XLVII, pp. 195–270.Google Scholar This article appeared unsigned, but we have been able to ascertain that it came from the pen of John Miller, of Lincoln's Inn, the learned and able author of a series of highly interesting articles both on penal matters and on the subject of Law Reports and the codification of the law. Miller later included the paper quoted above in a slightly modified form in his book An Inquiry into the present State of the Statute and Common Law of England (1822), pp. 87–332.Google Scholar

⁸⁶ Miller also refutes the argument invoked by the 1819 Committee that as the Black Act was hardly ever used, it had thus become obsolete and ought to be repealed: ‘When those to whom the task of legislation is committed have once determined an act to be a crime, and fixed the penalty which the circumstances of the country where it is to be enforced, in their judgment require to be set against it, there is no reason why it should not be inflicted though it occurs only once in a century.… It surely accords better with the character, dignity and interest of an enlightened people, to provide with as much deliberation as human foresight will permit, for all the accidents or diseases to which the body politic is accessible, than to indulge the illusion that health and quietness will always last, and have the remedy to seek as well as administer when the disorder has actually overtaken it.’ Ibid. pp. 115 and 116–117.

⁸⁷ Parl. Deb (1819), vol. XL, cols. 1525 and 1533Google Scholar; Parl. Deb. (N.S.) (1820), vol. I, cols. 227–237.Google Scholar

⁸⁸ 1 Geo. IV, c. 116. Of Lord Eldon, Walter Bagehot wrote in one of his brilliant essays: ‘As for Lord Eldon, it is the most difficult thing in the world to believe that there ever was suoh a man. It only shows how intense historical evidence is, that no one really doubts it. He believed in everything which it is impossible to believe in—in the danger of Parliamentary Reform, the danger of Catholic Emancipation, the danger of altering the Court of Chancery, the danger of altering the Courts of Law, the danger of abolishing capital punishment for trivial thefts, the danger of making landowners pay their debts, the danger of making anything more, the danger of making anything less.’ Literary Studies (1910), vol I, p. 150.Google Scholar

Conservatism in legal matters, however, particularly in England, is most definitely a much more complicated phenomenon than it might appear from the above quoted passage. If an attempt is made to follow the whole of the history of legal progress, instead of concentrating only on certain striking episodes, it soon becomes apparent that conservatism played an indispensable rô1e in these legal developments. See, on this subject, the wise and well-balanced remarks of the late ProfessorDillon, John F., of Yale University, in his book The Laws and Jurisprudence of England and America, London (1894), pp. 292–307Google Scholar, where he discusses this intricate but highly important subject under the arresting title of ‘The compensations of conservatism.’ Furthermore, it would be wrong to consider the Eldonian approach to legal reform as typical of the conservatives' attitude to these questions. His notorious hostility to any changes was not only the product of his personal, altogether exceptional, obstinacy, but it was also largely determined by certain political and social events of his time. These powerful and threatening events shaped the outlook of many other distinguished men besides Lord Eldon and it is therefore not fair to consider their opinions as being synonymous with the political philosophy and the general outlook peculiar to conservatism.

⁸⁹ Quarterly Review (1821), vol. XXIV, No. XLVII, p. 232.Google Scholar

⁹⁰ Parl. Deb. (N.S.) (1823), vol. IX, cols. 409–410.Google Scholar ‘Were there any persons,’ asked Mackintosh, ‘called Blacks from whom any danger was to be apprehended at the present time? And if not, what did the existence of such a statute prove, but the unfortunate pertinacity with which bad laws when once adopted were adhered to?’ He also denied that the making of the Black Act perpetual in any way proved its indispensability. First, because Bills were less thoroughly discussed at that time, and secondly, because the legislature was most probably influenced in its decision to make the Black Act permanent by the remarkable case of a man named Baunard, who sent a threatening letter to the Duke of Marlborough only a few months before.

⁹¹ See ProfessorWoodward, E. L., The Age of Reform, 1815–1870; Vol. XIIIGoogle Scholar of the ‘Oxford History of England,’ ed. by Professor G. N. Clark.

⁹² Macaulay was undoubtedly right in associating the Whig party with the initiation and the furtherance of this cause. See his flamboyant speech to the electors of the city of Edinburgh, in 1839, in Macaulay, Lord's Complete WorksGoogle Scholar, ed. by Trevelyan, Lady (1866), vol. VIII, p. 159.Google Scholar

⁹³ Trevelyan, G. M., British History in the Nineteenth Century and After (1943), p. 195.Google Scholar

⁹⁴ Thursfield, J. R., Peel (1928), pp. 19–20.Google Scholar

⁹⁵ In 1819, 1821 and 1823.

⁹⁶ Parl. Deb. (N. S.) (1823), vol. IX, cols. 420–429.Google Scholar

⁹⁷ 4 Geo. IV, c. 54.