mittee to inquire into our criminal ,^'^'"!'"I"„
1 • * 1 ,.1 i. ,•• .. tosh's mo-
laws was resisted, that Ctovernment tj^n is car
felt that the case was indefensible, ried.
and that the sense of the House, as ^'^rch 3.
well as the nation, was in favor of the desired
reformation. They only resisted the motion by
a side-wind, in order to gain time, or bring for-
ward a motion themselves, on which they might
get a committee of their own appointment. In
this, however, they were unsuccessful, for, on
a division. Sir James's motion was
carried by a majority of 19 — the xxxlx.'^s
numbers being 147 to 128.='
This was the first decisive victoiy gained in
the Legislature by the advocates of gj
criminal reform, and as such it de- Reflections
serves consideration. It was the o'> ^^'^ sub-
turning-point between two systems. ^^'^^'
For a hundred and fifty years before it. every
successive session of Parliament had been
marked by one or more additions to the cata-
logue of capital crimes, until at length they had
reached the enormous number of two hundred
Since that time, the penal sanction has been
taken away by statute in so many cases, and
the mercy of the Crown exercised so liberally
in others, that for ten years past no persons
have been sentenced to death in Great Britain
but for murder ; and execution has never taken
place, except in willful and cold-blooded cases
of that crime. The number of persons who
suffer the extreme penalty of the law is now
never above fifteen or twenty in a year in En-
gland, and three or four in Scotland ; and the
melancholy spectacle of public executions does
not take place a tenth part as frequently as it
used to do, before Romilly and Mackintosh be-
gan their humane labors.* So far there is great
cause for congratulation on the part of all the
friends of humanity. But the subject is sur-
Sentenced to Death in England and Wales.
Tears.
Sentenced.
Execu-
ted.
Tears.
Sentenced.
Elecu-
tfd.
1816
8'JO
,95
1845
49
12
1817
1302
ll5
1846
56
6
1818
1254
97
1847
51
8
1819
1314
108
1848
GO
12
1820
1236
107
1849
66
15 1
Since 1839 no person has been executed in Eng'andbut
for willful murder ; before ttie change in the law, the mur-
derers were seldom more than a fourth of the numbei
executed. — Porter's Progress {,"" the Nation, 635, tbird
edition.
1819]
HISTORY OF EUROPE.
I'i9
92.
Results of
experience
on the sub-
ject.
rounded with difficulties ; and if there is good
cause for rejoicing in this respect, tliere is equal
ground for apprehension in another. The diffi-
fully arises not from the argument, but the
fact, and tlie results which have actually fol-
lowed this great relaxation of our penal code.
It has been followed by a very great ir crease
both of committals and convictions ;
the former, however, in a consider-'
ably greater proportion than the lat-
ter — indicating that, though the ad-
ministration of the criminal law has
becomb more regular, and there is an increased
inclination on the part of injured persons to
prosecute, and of juries to convict, yet no de-
crease, but, on the contrary, a very great in-
crease v-
crease of commitments, since the lenient sys-
tem first began to be carried into eflect in 1822,
has been most alarming ; for they have swelled
in Great Britain and Ireland during that period
from 27,000 to 74,000, or above 250 per cent. ;
while, in the same period, population has only
advanced from 21,000,000, in the two islands,
to 28,000,000, or about 33 per cent. ; in other
words, crime has increased about eight times as
fast as the numbers of the people.! This is a
sufficiently startling result, the more especially
as the last year (1849) was undisturbed either
by Irish famine or rebellion ; and the free-trade
measures, from which the most general bless-
ings had been predicted for the empire, had
been for three years in full operation in Great
Britain. And as it is well known to all persons
practically engaged in these matters that, so far
from commitments for trial being of late years
ittsued for more trivial crimes than formerly,
the case is just the reverse ; and cases are con-
stantly now disposed of by the police magis-
trates, and chastised by a few weeks' imprison-
ment, for which, thirty years ago, sentence of
death or transportation was pronounced.
In truth, however, this anomaly is more ap-
gj parent than real ; and this disheart-
What has ening result, so far from disproving,
caused the only proves more clearly the justice
apparent q^ <^jJ. James Mackintosh's principles,
anomaly? f, â– , , . ' ^ â– ,
Crmie has mcreased so nnmensely,
chiefly because they. were applied only to the
Convictions in England and Wales ter cent, of
Committals.
Year,.
I'ur Cent.
Yci.r,-. 1 I'er Cent. |
180.5
60.43
1830
70.72
IHIO
61.35
1835
71.04
1815
R2.46
1841
73.05
1820
67.23
1815
71.60
1825
69.01
1849
75.49
t COMMIT.MENTS FOR SERIOUS CllIMES IN GREAT BniT-
AiN AND Ireland.
Tears.
England.
Sent-
bind.
Irvlnnj.
Total.
''"'I
iiHtioM or
lioll!.
nn,onn
J 822
1823
1824
1S25
1826
1845
1846
1847
1848
1849
12,241
12,263
13,608
14,437
14,104
24,303
2.'-., 107
2H,H,S3
30,340
27.806
1,601
1 ,733
1,802
1 ,876
1,099
3,.5.37
4,060
4,635
4,009
4,357
13,251
14,632
15,2.18
15,515
16,318
16,606
18,402
31,209
38,522
4 1 ,082
27,183
28,628
30,718
31,828
34,481
44,.').3n
47,668
64,677
73,780
74.162
21,
28,f
-Ports
R's Prov
I'HX ofl
He IWntion
, third ed
ion
p. 8,635
M7. 668, and ['nrl. Rriurn
Vol.. I —I
punishment of death, and not followed out, as
they should have been, through the whole ram-
ifications of offenses, and the penalties attached
to them. His fundamental principle was, that
certaintij of punishment is the only effectual
mode of deterring from crime, and that this can
never be attained unless the feelings of the peo-
ple coincide with the law, and co-operate in its
execution. No reasonable being can douot f lie
soundness of this principle ; but, to be effecti\ e,
it should be applied universally. When the cap-
ital sentence is taken away from a great vari-
ety of offenses, if certainty of secondary punish-
ment is not imposed in its stead, the temptatiiJii
to the commission of crime, from the hope cf
comparative impunity, is of course increased.
Unfortunately, however, many causes have con-
tributed to render secondary punishments in the
British empire more uncertain and ineffective,
at the very time when the punishment of death
has in all cases, excepting willful murder, been
taken away. One class trusted to education lo
arrest the progress of crime ; forgetting that in
England the educated criminals were already
double of the uneducated, and in Scotland four
and a half to one.* Another rested their hopes
on the effect of the improvement of prison dis-
cipline in reforming the criminals, an illusion
of all others the greatest ; for experience has
now abundantly proved that neither solitary
confinement, nor long imprisonment, nor any
amount of moral and religious instruction with-
in the walls of a prison, has the least effect in
amending the lives of prisoners in their own
country, when they are discharged from it. In
the mean while, the great increase of prisoners
transported, who swelled from a few luindreds
to nearly five thousand annually, and the ex-
tremely injudicious step of sending them all,
without any intermixture of untainted settlers,
to Van Diemen's Land — the most remote colo-
ny of Great Britain, and the least accessible to
free colonists — rendered transportation there so
great an evil, and so much an object of dread
to other colonies, that a general resistance to
the reception of convicts was manifested, and
for several years none, excepting young women,
Avere removed to the colonies. Thus transpor-
tation, after being pronounced as a sentence,
was not carried into effect; the jails soon be-
came incapable of holding the multitudes crowd-
ed within their walls; government quietly let
* Table showing the instruction or criminals over the
British empire in 1841 and 1848 :
Neitlier
rend nor
write.
Imper-
foill.v.
Well.
Supe-
Tntnl ed
uc.it.-d.
Totnl
iiued.i-
rnted.
1841.
England ..
Scotland ..
Ireland ...
1848.
Enijland ..
Srolland..
Ireland . . .
9,220
606
7,152
9,601
13,732
2,248
3,084
17,111
2,253
654
5,631
2,664
-
126
42
61
18,171
2,831
8,733
20,076
3,985
0,220
696
7,152
9,691
—I'lirl. Rcttimx, 1641-8.
Ill France, it appears from M. flucrry's tabks that in
all the eighty-four departments, without exception, the
amount of crime is in proportion to the amount of in-
struction ; while in Prussia, where education i.s more
fjonciral than in any other country in the world, bcinfi
enforced by government on every citizen with a family,
tliejiroportion of serious crimes to the jiopiilation \» twelve
limrx grrrilcr than in France, where half llie people can
iicitlicr r
130
HISTORY OF EUROPE.
rCHAP. It
Ihpin
liail bt'tMi uiulor^ionr ; and llu\v wvtc soon liaok
ill thrirolil liauiits, (•oiniuittiiii; new criinos, and
pivin^ tlu'ir old assiH-iatt-s t!i(> most oncoura-
•rinj: accounts of tlic case witli wliidi, by a little
address, liberation from the severest sentence
of transportation could be obtained*
The true principles to follow in dealinsj with
94 secondary punishments as with that
True prin- of death, is to render them as cer-
:ipies on tain as possible, and to consider im-
iiie subject, prisonment at home as only a i)rcpa-
ration for, and means of teaching a trade to,
those who are ultimately to be transported.
For juvenile offenders, and trifling cases, a very
short imprisonment, as of a week, or a flogging,
should be inflicted, merely with a view to ter-
ror. For a second offense of any sort, or a first
of more serious, a prolonged imprisonment, as
of nine months or a year, should be the penalty,
during which the convict should be carefully
instructed in a trade. For the next offense,
transportation should invariably he inflicted,
and as inrariahhj carried into execution. And if it
be objected that the colonists will not receive
the convicts, the answer is, that no such diffi-
culty was experienced, till, by the abolition of
the assignment system, and keeping convicts
in gangs, and sending them all in overwhelm-
ing multitudes to one colony, it became an ob-
ject of dread, rather than ambition, to all oth-
ers ; that this difficulty will at once be over-
come by engaging, on the part of Government,
to send three untainted colonists for one con-
vict to any colony which will receive the latter ;
or establishing an entire new penal colony, to
which all untainted persons emigrating at the
expense of Government might be sent ; a sys-
tem which would at once convert all the re-
fractory colonies into petitioners for a portion
of the fertilizing stream ; and that, if it should
prove otherwise, Australia is large enough to
afford room for the establishment of new penal
colonies, regarding which no consent need be
asked for thousands of years to come.t
Another subject of general interest was dis-
93 cussed in Parliament this year, which
Clandestine was that of the succors clandestine-
s'i<^<-or& ly furnished by the Briti,sh to the in-
Engiish to'' surgents in South America. Ever
the^South since the contest between the splen-
American did colonies of Spain and the mother
insurgents, country had begun in 1810, of which
an account has been given in a chapter of the
' Hist, of author's former work,' it had been re-
Europe, garded with warm interest in Great
c. ixvii. Britain: partly in consequence of the
strong and instinctive attachment of its inhab-
itants to the cause of freedom, and sympathy
with all who are engaged in asserting it ; part-
ly in consequence of extravagant expectations
* At the spring circuit at Glasgow, in April, 1848, out
of 117 ordinary criminals indicted, there were 22 who had
been convicted at that place within two years previously,
and sentenced to various periods of transportation, none
under seven years ; and the previous sentence was stated
In the indictment as an aggravation of the offense. The
same was the case for several years, and obtains, though
in a lesser degree, to this day.'
t In the essay on " Crime and Transportation," in the
author's Miscellaneous Essays, vol. i., p. 547, this very
important and interesting subject is discussed more at
length, and i 1 detail, thai is practicable in a work of gen-
eral history.
formed and fominted by interested parties, a?
to the vast field that, by the independence of
these colonics, would be opened to British com-
merce and enterprise. As long as the war in
Europe lasted, this sympathy was evinced only
by an anxious observance of the struggle; for
the (ihysical resources of the country were en-
tirely absorbed in the terrific contest with >ia-
poleon. But when peace succeeded, and the
armies of all tlie European states were in great
part reduced, the interest taken in the cause of
South American independence began to assume
a more practical and eflicient form. Great num-
bers of officers from all countries, wearied of
the monotony of pacific life, or tempted by the
high rank and liberal pay offered them in South
America, began to go over to the ranks of the
insurgents, and ere long rendered their forces
greatly more formidable than they had previous-
ly been. The English, prompted by the love
of freedom, wandering, and adventure, which
seems to be inherent in the Anglo-Saxon char-
acter, were soon pre-eminent in this respect ;
and the succors they sent over ere long assum-
ed so formidable an appearance as attracted the
serious notice of the Spanish government. Not
only did great numbers of the Peninsular vet-
erans, officers and men, go over in small bod-
ies, and carry to the insurgents the benefit of
their experience and the prestige of their fame,
but a British adventurer, who assumed the title
of Sir Gregor M'Gregor, collected a considera-
ble expedition in the harbors of this countiy,
with which, in British vessels and under the
British flag, he took possession of Porto Bello,
in South America, then in the undisturbed pos-
session of a Spanish force, a country at peace
with Great Britain. This violent aggression
led to strong remonstrances on the part of the
Spanish government, in consequence of which
Government brought in a Foreign i p^^^j -^^^
Enlistment Bill, which led to violent june 28,
debates in both Houses of Parlia- 1819, xi.
ment.' l^Sl, 1382.
On the part of Government, it was argued
by the Earl of Liverpool, Lord Bath- 95.
urst, and Lord Castlereagh : "As the Argument
law at present stands by the 9th and of Minister?
29th Geo. 11., and the 9th Geo. III., the Foreign
it is made felony, without benefit of Enlistment
clergy, to seduce subjects of this ^'"•
country to enlist in the service of foreign pow
ers. These enactments are quite general, and
apply to all foreign countries without exception,
and have no special reference to the raising
troops for the service of the Pretender, though
they were probably conceived with that view
Soon after the late peace was concluded, it wa?
discovered that several British officers had left
this country to take service with the insurgents
of South America. At first, while the number
was inconsiderable, the Government did not
consider it necessary to notice their engage-
ments. AVhen, however, the number increased,
it was notified to officers on half-pay, that if
they enlisted in foreign service they would lose
their half-pay. This notice, however, had not
the desired effect. The enlistment of recruits
for South America went on openly : several
large bodies embarked in British harbors for
that country, and lawyers thought it doubtfiil
whether the existing .\cts of Parliament could
1819]
HISTORY OF EUROPE.
VT
Contir.'ied
reach them. It became necessary, therefore,
to do somelliing more efficient; and this was
alike called for by our position as a neutral pow-
er, and by the special engagements under which
we stood with Spain relative to the South
American insurgents.
"By the treaty of 1814 with the cabinet of
Madrid, Great Britain had expressly
become bound to furnish no succors
to the Spanish insurgents, and the
Government declared their resolution to ob-
serve a strict neutrality; and a proclamation,
founded on this principle, was issued in 1817,
warning his Majesty's subjects not to accept
any military commissions from, nor give any
aid to, either of the parties. This principle was
strictly acted upon by the British Government ;
and although some British officers were serv-
ing by license in the Spanish army, it was un-
derstood they w^ere not to act against the in-
surgents, and this understanding had been en-
forced in two instances. A change of the law,
however, had become necessary, because the
severity of the penalty denounced in it render-
ed it impossible to carry it into execution. It
is proposed in the present act to take away the
capital sanction, and declare persons enlisting
in foreign service guilty of misdemeanor only,
and to declare the supplying the belligerents
with warlike stores, and equipping vessels for
warlike purposes, the like offense. The law
thus mitigated, in conformity with the spirit of
the age, may be really carried into effect, so as
to show that we are really in earnest in the
neutrality we have declared.
" Such a determination is one which is not
to be regarded as a temporary, but a
ConUnued Permanent resolution — a declaration
of the policy which, in all similar cir-
cumstances, has regulated just and considerate
neutral states, and which it is incumbent on
this country in an especial manner steadily to
adhere to. It is expressly provided for by the
treaty with Spain in 1814; br.t, irrespective of
that treaty, it is incumbent on us by the eter-
nal principles of justice, and the acknowledged
maxims of international law. It is impossible
to say we are at peace or amity with a country,
the subjects of which are entitled to make war
at pleasure with the subjects of our own coun-
try. Such a species of hostility is war in its
very worst form; for it is war without its laws,
its restraints, its direction, or its objects. It is
not national hostility directed to public purposes,
but private piracy aiming at nothing but indi-
vidual plunder. Can we permit armaments fit-
ted out in this country to attack the peaceable
colonies or possessions of another country, or
to aid its insurgents in severing themselves
from its dominion^ This case has actually oc-
curred in the recent seizure of Porto Bello, a
town of New Spain, by an expedition command-
ed by a person who assumed the title ofSirGreg-
or M'Gregor. If this was sanctioned against
Porto Bello, might it not equally be done against
Corunna, Cadiz, or Madrid itself^ Was this
consistent with justice ] Was it not, on the
contrary, saYictioning the grossest injustice !
Of all states in the world, Great Britain is the
one which has the most decided iiiti^rest to re-
sist the promulgating of su<;li doctrines ; for not
only is Ireland the perpetual field of domestic
discontent and foreign tampering, but her colo-
nies in every part of the world at once invite ag-
gression, and render defense almost 1 opeless.
" The same case has occurred in formei
times with other countries, and been
always met by the steady resistance ^ ^?- , .
r 1-1, i 1 T , rvr,„ ConcluQed
for which we now contend. In 1792
a treaty was concluded between Great Britain
and the United States, by which it was stipu-
lated that the subjects of neither power should
accept commissions in the service of any prince
or state at war with the other. The govern-
ment of the United States, when the war broke
out between this country and France, immedi-
ately passed a law prohibiting the enlisting of
their citizens in the service of any foreign
prince or power, or furnishing them with ships
or warlike stores ; and this act, which punish-
ed any infringement of its provisions by fine or
imprisonment, though at first temporary, was
afterward made permanent. In 1818 the Amer-
icans extended this law to any power, whether
recognized or not, expressly in order to meet
the case of the succors sent to the Spanish in-
surgents in the southern parts of their conti-
nent. It is true that volunteering into foreign
service was permitted in the reigns of Eliza-
beth, Charles I., and James II. ; but then it was
only because the services entered into were
those of states at war with the avowed enemies
of Great Britain, and at a time when the viru-
lence of religious warfare rendered hostilities
as ceaseless between Catholics and Protestants
as ever they had been between Mussulmans
and Christians. But can this be predicated of
our old and faithful allies the Spaniards, whe
have stood by our side in the terrible Peninsu-
lar struggle during seven years with Napoleon â–
And are we prepared, as the first proof of oui
gratitude to them for the devoted fidelity with
which they fulfilled their engagements toward
us during war, to aid their enemies, i pari. Dci>.
on the return of peace, in dismem- xi- 1378,
bering their dominions !'" ^â– ^*"-
On the other hand, it was contended by Lord
Holland, Lord Lansdowne, and Mr. jqq
Tierney : " The present bill has been Answer by
brought forward, not on any general ti>e Oppo-
ground of policy, for it is directly con- ^'tion.
trary to the practice of England in its best days,
but solely in consequence of a specific applica-
tion from the court of Spain. Had, tl:en, that
power any right to make that demand, either
upon the ground of the general law of nations,
or the terms of any particular treaty ; and if
she had not, are there any reasons of justice or
expedience which call upon us to depart from
the undoubted law, and still more undoubted
feeling, of this country for above a century
back? Both questions must i)e answered in
the negative. The Gernuui jurists, particularly
Martens, say that it is perfectly consistent with
neutrality to give every assistance to either
of the belligenMits, excejit warlike expeditious.
This princi|)lc has i)een constantly actcnl upon
in this country. It was done, and to a very
great extent, in the reign of Elizabeth, when
the Dutch were struggling for their indejiend-
ence ; and in that of James, when Gustaviis
Adolphus was contending, on the ))lains of G<>r-
many, fiir the cause of religious freedom all over
the world. Could it be said that the efforts <»l
/d2
H I S T O R Y O F E II R O I' E.
[Chap l\
u\M\'Hh\M> to siipiiorl tlio cause of South Amcr-
ioau iiulopcMuliMifc were warlike ex|)iHlitions, in
the siMisc of llio tiormaii jurist ! ' Every slate,'
says Martens, 'lias a rijjlit to give liberty of
raisiuu troops in its donunions, and inarching
them through the country, and may grant to one
state what it refuses to another, without in-
I'ringing its neutrality.' It is in vain to say this
is a novel and unheard-of doctrine ; it has been
constantly acted upon in this country. Queen
Elizabeth allowed her subjects to enlist to any
extent in the service of the Dutch common-
wealth, though never in that of Philip of Spain ;
and James I., a great jurist, though certainly no
iiero, allowed 2S00 soldiers to be laised for tiie
service of Gustavus Adolphus, while he remiiin-
eJ undisturbed in his relations of amity with
the Emperor, against whom they acted. It may
be asserted, without fear of contradiction, that
for four centuries, and down to the year 1793,
wljen the Netherlands were engaged in a revolt
against Joseph II., there never was a period in
which British subjects were not engaged in
giving succor, as individuals, to other states ;
and no instance can be shown in which govern-
ment interfered in the manner now proposed to
prevent them.
" But it is said the government of Spain is en-
titled to particular rights by the treaty
ConUnued. ^^ ^^^'^' already alluded to. Not a
hint on this subject had been given
when the treaty was signed ; but now, after the