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576

CAPITAL

PUNISHMENT

from 1382 (5 Ric. II. stat. 5) until 1677 (29 Chas. II. c. 9). By this time its beneficial effect had been exhausted, For this purpose the legislature had adopted the civil law since no clergyable offences remained capital crimes. At the end of the 18th century the criminal law of all of the Roman empire, which was not a part of the English Europe was ferocious and indiscriminating by its adminiscommon law (Stephen, Hist. Cr. Law, 438-469). The severity of barbarian and feudal laws was miti- tration of capital punishment for almost all forms of gated, so far as common-law offences were concerned, by grave crime; and yet owing to poverty, social conditions, the influence of the Church as the inheritor of Christian and the inefficiency of the police, such forms of crime were traditions and Roman jurisprudence. The Roman law far more numerous than they now are. The policy and under the empire did not allow the execution of citizens righteousness of the English law were questioned as early except Lex Porcia. But the right of the emperors to as 1766 by Goldsmith through the mouth of the vicar of legislate per rescriptum principis enabled them to Wakefield : “ Nor can I avoid even questioning the disregard the ordinary law when so disposed. The 83rd validity of that right which social combinations have novel of Justinian provided that criminal causes against assumed of capitally punishing offences of a slight nature. clerics should be tried by the judges, and that the convicted In cases of murder their right is obvious, as it is the duty cleric should be degraded by his bishop before his con- of us all from the law of self-defence to cut off that man demnation by the secular power, and others of the novel who has shown a disregard for the life of another. Against gave the bishops considerable influence, if not authority, such all nature rises in arms; but it is not so against him over the lay judiciary. In Western Europe the right who steals my property.” He adds later: “ When by given by Imperial legislation in the Eastern empire was indiscriminate penal laws the nation beholds the same utilized by the Papacy to claim privilege of clergy, i.e., punishment affixed to dissimilar degrees of guilt, the that clerks must be remitted to the bishop for canonical people are led to lose all sense of distinction in the crime, punishment, and not subjected to civil condemnation at and this distinction is the bulwark of all morality.” The opinion expressed by Goldsmith was strongly all. The history of benefit of clergy is given in Pollock and Maitland, Hist. English Laiv, vol. i. pp. 424-440, and supported by Bentham, Romilly, Basil Montagu, and Stephen, Hist. Cr. Law, 463. By degrees the privilege Mackintosh in England, and resulted in considerable was extended not only to persons who could prove ordina- mitigation of the severity of the law. In 1819 about 180 tion or show a genuine tonsure, but all persons who had crimes were capital. As the result of the labour of these sufficient learning to be able to read the neck-verse (Ps. li. eminent men and their disciples, and of Sir Robert Peel, v. 1). Before the Reformation the ecclesiastical courts had there are now only four crimes capitally punishable in ceased to take any effective action with respect to clerks England,—high treason, murder, piracy with violence, and accused of offences against the king’s laws; and by the destruction of public arsenals and dockyards (12 Geo. III. time of Henry VII. for the old process of compurgation in c. 24). An attempt to abolish the death penalty for this use in these courts was substituted burning on the hands last offence was made in 1837, but failed, and has not since been renewed. In the case of the last two offences under the order of the king’s judges. The effect of the claim of benefit of clergy is said to sentence of death need not be pronounced, but may be have been to increase the number of convictions, though recorded (4 Geo. IV. c. 48). High treason is rarely proseit mitigated the punishment; and it became, in fact, cuted as such, but dealt with as treason felony, and since a means of showing mercy to certain classes of indi- 1838 sentence of death has in practice been executed only viduals convicted of crime as a kind of privilege to the for murder. The change in the severity of the law is best illustrated educated, i.e., to all clerks whether secular or religious (25 Edw. III. stat. 3); and it was allowed only in case of a by the following statistics :— first conviction, except in the case of clerks who could Death Sentences. Sentences Executed. produce their letters of orders or a certificate of ordination. Years. For all For For all For To prevent a second claim it was the practice to brand Crimes. Murder. Crimes. Murder. murderers with the letter M, and other felons with the 12 52 14 1601 1831 ] Tyburn T, and Ben Jonson was in 1590 so marked for 6 33 9 931 1833 manslaughter. 6 5 25 116 1838] The times of Henry VIII. were marked by extreme 15 15 28 29 1862 severity in the execution of criminals. After the formaDuring the twenty years from 1879 to 1898, 1278 persons were tion of English settlements in America the severity of the law was mitigated by the practice of reprieving persons committed for trial in England for murder, being an average of sentenced to death on condition of their consenting to 64. The highest number was in 1884 (79), and the lowest in 1892 transportation to the American colonies, and entering into Of those tried in 1898, 27 were convicted, 11 were executed (all bond service there. The practice seems to have been males), 15 had their sentence commuted to penal servitude for life. The judicial statistics do not show whether any persons charged borrowed from Spain, and to have been begun at the murder were convicted of manslaughter. end of the 16th century (39 Eliz. c. 4). It was in full with Twenty persons charged with murder were sent to Broadmoor as force immediately after the Restoration, and is recognized criminal lunatics. Of these 5 were found insane on arraignment, in the Habeas Corpus Act of 1677, and was applied by 11 were found guilty, but insane, and 4 were certified insane by the Cromwell after his campaign in Ireland, and to the Home Office before or after trial. It is difficult to reconcile these with those of the convictions, except by supposing that the Cameronians during Claverhouse’s campaign in south-west figures persons found guilty, but insane, are not included m the conScotland. In the 18th century the courts were empowered victions. to sentence felons to transportation instead of to execution, The common-law method of punishing male traitors was and this state of the law continued until 1857 (6 Law ferocious in the extreme. According to Walcot’s case Quarterly Review, p. 388). The power to sentence to (1696) 1 Eng. Rep. p. 89, the proper sentence was “quod transportation applied only to felonies with benefit of ibidem super bigam (herdillum) ponatur et abinde clergy; and in 1705, on the abolition of the necessity of usque ad furcas de [Tyburn] trahatur, et ibidem per collum proving capacity to read, all criminals alike became entitled suspendatur et vivus ad terram prosternatur et quod secreta to the benefit previously reserved to clerks. Benefit of clergy 1 Each of these years followed upon legislation mitigating severity was finally abolished in 1827 as to all persons not having of punishment. privilege of peerage, and in 1841 as to peers and peeresses.