Criminal Law Reform: England - Legislation, 1823–1849

The review promised by Peel resulted in very substantial improvements in the form of the law, but only in relatively minor reductions in its severity and arbitrariness. Peel was accordingly able to secure the support of the judiciary in carrying a considerable body of legislation through Parliament. Three hundred and sixteen acts of Parliament were consolidated in four statutes, which covered nearly four-fifths of all offenses (the Larceny Act, 1827, 7 & 8 Geo. 4, c, 29, consolidating ninety-two statutes; the malicious Injuries to Property Act, 1827, 7 & 8 Geo. 4, c, 30, consolidating forty-eight statutes; the Offences against the Person Act, 1828, 9 Geo. 4, c. 32, consolidating fifty-six statutes; and the Forgery Act, 1830, 11 Geo. 4 & 1 Will. 4, c. 66, consolidating 120 statutes). Peel's acts also totally repealed obsolete statutes, filled small gaps in the law, and made other minor amendments; but being merely consolidating statutes, they did not incorporate the common law rules. Thus, the Larceny Act contained no definition of larceny (which was not provided until 1916); the Forgery Act, no definition of forgery (not provided until 1913); and the Offences against the Person Act, no definitions of murder, manslaughter, assault, or rape (only rape has since been defined, and then not until 1976). This legislation did not therefore amount to codification, as Bentham and his followers would have wished, and as Edward Livingston was contemporaneously projecting for Louisiana. Nor did it do much to mitigate the severity and arbitrariness of the law relating to capital punishment. Even in 1830 Peel, against the wishes of the banking and commercial community, favored retention of the death sentence for forgery, although no one was in fact executed for this offense after that date.

Only four reforms were effected in the substance, as opposed to the form, of the law under Peel's leadership. First, in 1823, two of the three capital offenses of theft that Romilly had singled out in 1810 were repealed, as well as another eight whose abolition had been proposed by Mackintosh's committee. Four more were repealed in 1825, and two others (larceny in booths and larceny in churches), in 1827. Second, another statute of 1823 provided that death sentences should not be pronounced if the judge intended to recommend a reprieve. This meant that the judge had to decide openly for, rather than privately against, the carrying out of the death sentence. This statute thus increased the number of cases in which the death penalty was commuted. Third, in 1827 Parliament abolished the technicalities of benefit of clergy (a medical jurisdictional rule that had been manipulated so as to give, unless a statute otherwise provided, what was in effect a conditional discharge to every felon on his first conviction) and the distinction between grand and petty larceny, with the result that a second conviction for the theft of more than twelvepence was no longer capital. The practical consequence was not any reduction in the number of death sentences carried out but rather that such thefts became triable at quarter sessions, which was much more convenient for prosecutors than trial at assizes. Fourth, many changes were introduced in the scale of punishments for lesser offenses, which had the same effect.

The formation of Earl Grey's Whig reform ministry in November 1830 made possible more radical changes. In 1832 William Eden's son, George Eden, president of the board of trade and master of the mint, successfully sponsored the Coinage Offences Act, 1832, 2 & 3 Will. 4, c. 34 (repealed), which not only consolidated the existing law but also carried through the drastic reform of abolishing the death penalty for all counterfeiting offenses. During the next two years, and in the face of opposition from Peel and the judges, the death sentence was abolished for several forms of four offenses (larceny, housebreaking, forgery, and robbery), being replaced by mandatory sentences of transportation, either for life or for not less than seven years.

In 1835 the appointment as home secretary of Lord John Russell, a disciple of Romilly and a member of Mackintosh's committee, stimulated another reform. Between April and July 1837, Russell carried ten reforming bills through parliament, seven of them directly concerned with the death penalty. The total number of capital offenses was thereby reduced from thirty-seven to sixteen, nearly all of those that remained involving some element of violence against the person. The principle that no offense against property alone should be punishable by death, for which the reformers had long contended, was at last implemented. In the same year a motion in the House of Commons seeking the abolition of the death penalty for all crimes "save those of actual murder" failed by a single vote. By 1839 the only offenses still subject to the death penalty were treason, riot, arson of naval ships and of naval and military stores, murder and other offenses involving attempts on or risks to life, rape, buggery, sexual intercourse with girls under ten years of age, and robbery and burglary when accompanied by personal violence—much the same list as that proposed by Eden in 1771. Rape ceased to be a capital crime in 1840.

The opposition of twelve of the fifteen judges notwithstanding, Russell also carried in 1836 a bill that allowed counsel or solicitor (attorney) representing a defendant charged with a felony to address the jury on his behalf. (Previously he might only examine and cross-examine witnesses.) The law and practice governing proceedings before magistrates (both committal proceedings and summary trial), however, remained in its unreformed state until John Jervis, as attorney general, took the matter in hand, piloting through Parliament in 1848 and 1849 three statutes that laid down basic procedures and procedural standards for those jurisdictions. This reform made it politically possible to increase the number of minor offenses that might be tried summarily (a process inaugurated by the Criminal Justice Act, 1855, 18 & 19 Vict., c. 126) and, as a consequence, the number of offenders who were in fact prosecuted. And in 1847 the first step was taken toward creating a separate jurisdiction for young offenders, when it was provided that children under fourteen (after 1850, under sixteen) charged with simple larceny could be tried summarily with their parents' consent. This procedure was extended to all offenses, other than homicide, in 1879, but it was not until 1908 that juvenile courts, held at different times from those for adults, were established.