Criminal Law Reform: England

The literary movement for the reform of English criminal law began in 1771 with the publication of William Eden's Principles of Penal Law. The parliamentary movement was initiated in 1810 by Samuel Romilly's (unsuccessful) attempt to make three forms of petty theft noncapital crimes, and by the establishment in 1819, on the motion of James Mackintosh, of a select committee of the House of Commons, "to consider so much of the criminal laws as relates to capital punishment in felonies, and to report their observations and opinions upon the same." Both Romilly and Mackintosh were the friends as well as the disciples of the philosopher Jeremy Bentham (1748–1832), whose ideas and writings (published and unpublished) pervaded every proposal for the reform not only of the criminal law but of most other legal and political institutions for more than half a century.

William Blackstone (1723–1780) had not been uncritical of several aspects of the criminal law in the fourth volume of his Commentaries on the Laws of England; but Eden's book, published when the author was only twenty-six, and strongly inspired by Montesquieu and Beccaria, was the first attempt at a critical examination of the law's structure and principles. It was also the first effort to evolve a comprehensive plan for its reform. Although he favored retaining the death penalty for a substantial number of crimes (including maiming, rape, sodomy, arson, and burglary), Eden argued that the severity of penal laws should be controlled first by "natural justice" and second by "public utility," and that punishments should bear some relation to the gravity of offenses. He accordingly identified scores of crimes that should no longer be capital—a bold suggestion at a time when Parliament was still readily adding to their number. Eden disapproved of transportation, on the ground that if it did not kill the convict, it often conferred a benefit on him. He also disapproved of imprisonment, which he considered a dead loss to everyone. On the other hand, he favored flogging, fines, and compulsory labor in public works. Finally, he proposed the outright repeal of all obsolete statutes, and the consolidation of those that were to remain. Nearly all of Eden's reforms (with the exception, of course, of the disuse of imprisonment) were ultimately implemented by Parliament, but the process took more than seventy years.

In 1808, Romilly sought the repeal of a statute imposing the death penalty—one dating from 1565, for stealing "privately" from the person (that is, pickpocketing)—but it was his speech in the House of Commons on 9 February 1810 (printed, with additions, as Observations on the Criminal Law of England as It Relates to Capital Punishments, and on the Mode in Which It Is Administered) that reopened public debate on the state of the criminal law. Romilly's argument was a masterly exposure (still well worth reading) of the fallacies of the orthodox justifications for the law's indiscriminate threats, but relatively infrequent and largely arbitrary imposition, of the death penalty. Since the three statutes whose repeal he unsuccessfully sought covered a considerable proportion of all nonviolent offenses against property, Romilly's proposed reform was a substantial one going to the heart of the existing law.

Mackintosh's committee of 1819 made the first official large-scale investigation into the criminal law and its effects, and its report, with detailed statistical returns of convictions and executions, as well as a chronological review of the statute law, served as a model for official reports on the criminal law for the rest of the nineteenth century. The committee recommended: (1) that twelve obsolete statutes be repealed and fifteen others amended; (2) that Romilly's proposed reform of 1810 (for the repeal of three capital theft offenses) be carried out; (3) that the statute law of forgery be consolidated; and (4) that all forgery offenses other than the actual forging of Bank of England notes, as well as a second conviction for uttering forged notes, should cease to be capital. The fourth of these reforms was strongly supported by bankers and businessmen, who found it virtually impossible to obtain convictions while the offenses remained capital. Although the committee's recommendations met with determined opposition and were at first rejected by Parliament almost all of them were implemented during the 1820s after Home Secretary Robert Peel, keen that the government should control the pace and extent of reform, had in 1823 committed it to an extensive review of the criminal law.