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preserved, although the act remedying the evil had passed in 1731 (4. Geo. II. c. 26.), but altered and considerably enlarged, a new argument being added. Now, as there is a note referring to the statute which had removed the grievance, it should seem that Mr Emlyn had altered the Preface soon after it was first published, but had died before it was finally corrected for publication.* The learned editor of the work before us, following the inaccuracies of the edition 1742, gives the Preface of 1742, with the date of 1730, and the name of the author affixed, although he only signed M. N. to the first edition of it. + We ought to add, that the greater part of the first extract which we are about to give was added to the publication in 1742, and is not to be found in the original edition.
It has been esteemed an advantage of our law, that it does not inflict various and cruel deaths: that which is inflicted for treason, is the only one which has any appearance of severity; and even there, in the execution, it is generally the same with other capital cases. But yet it must also be observed, that our laws are very liberal of the lives of offenders, making no distinction between the most atrocious and heinous felonies, and those of a less degree. If a man commit a single robbery, hanging is the punishment inflicted by law; if he commit robbery and murder, with never so many cruel circumstances, the punishment is still the same, and no more. So little regard is had in proportioning the punishment to the offence, that the law makes no difference between picking a man's pocket and cutting his throat; between stealing his horse, and firing his house about his ears. How far this is either just or prudent, is left for every man's own reason to determine. It is certainly a strong temptation to an highwayman to add murder to robbery, when by that means he runs less danger of a discovery, and no danger of a severer punishment.'
However, not to enter into a discussion of the lawfulness, or justice, of taking away life for every kind of offence, a consideration which, the learned Spelman observes, has not its due weight in later ages, yet methinks so long experience might have taught us how ineffectual it is to answer the purposes for which it is designed.
*It is certain, however, that he lived several years after the date of the statute; for the Pleas of the Crown were edited by him in 1796.
A circumstance somewhat similar to the one pointed out in the text, occurs in the Observations upon Gaols and Gaolers' Fees. Though these bear date March 27, 1730, mention is made of the matter as under the consideration of Parliament; yet the 2 Geo. II. c. 22., to which he refers, had been passed the year before.
This capital punishment has since been expunged from the statute-book by the great legislator whose loss all pe now deplores.
Death is ultimum supplicium: and is therefore intended only for crimes of the highest rank; but when it is indiscriminately inflicted, it leaves no room to difference the punishment of crimes widely different in their own nature. The lower part of mankind are apt, in dubious cases, to judge of the heinousness of the offence by the severity of the punishment; but yet, when they see the same punishment annexed where the difference of guilt is manifest and apparent, they soon lose the sense of that extraordinary guilt, and, instead of conceiving worse of the crime, they only blame the cruelty of the law. Further, when such numbers are continually ordered for execution, (as must be the case where death is made the common punishment for ordinary crimes), the frequency of the example destroys the terrors of it, and makes it less dreaded than going to the gallies, or any place of hard labour. Besides, when the punishments are so very disproportionate to the offence, it defeats the end of them; forasmuch as those who have any tenderness or humanity in their temper, will much rather forbear wholly to prosecute. than be made the instruments of putting such severe laws in execution. Instead, therefore, of being a means of bringing the offenders to punishment, it is sometimes the very reason why they escape with impunity.' (Edit. 1742, I. x.)
It is peculiarly gratifying to find such sentiments as these expressed at so early a period; and no less pleasing to find the following passage which is in the edition of 1730. Speaking of compulsory labour as a punishment, and of the right to employ it for this purpose, he says, I am sure it is a much more lawful method of making slaves, than the practice of kidnapping and stealing men from the African shore, and forcibly carrying them away from all their friends and relations, into a miserable slavery in America, without any better title than what arises from the difference of complexion.'
No one conversant with our statute law, and especially the more recent portions of it, can fail to admit, that since the period when Mr Emlyn wrote, the evil complained of in the following passage has increased beyond all endurance, and has almost verified the prediction of that learned and sensible person. Speaking of the multiplicity and voluminousness of our laws, he says, (and the labours of almost ninety years have since mightily augmented the rude and indigested mass), If what lies scattered in so many various (some obsolete) acts were (so much of them as should be judged fit to be continued) collected under their several heads into so many distinct acts, the law would be much more plain and easy; whereas now, considering the variety of subjects which are often thrown to
* This one evil has been to a great degree corrected in the statutes of later years--but the old acts continue with the same discrepancy between the title and the enactments.
gether into one act, and, though various, relating to one and the 6 same subject, it is no easy matter to find out the whole relating to one particular head; and when it is found, many diffi'culties arise from the clashings and inconsistencies of the se⚫veral acts, the old ones not being always sufficiently consulted when the new ones are made; so that it is to be wished we may never feel the inconveniencies which Tacitus complains ' of in his time.' "Antehac flagitiis laborabatur, nunc legibus. We have already alluded to Mr Emlyn's remarks upon the use of a dead language in all records, although that absurdity was abolished soon after he wrote; and we recur to these matters for the purpose of observing how instructive the history of the change is to those who cry out against every alteration of judicial practice as replete with danger, and descant on the hazard of entering too precipitately even upon plausible reforms. Never perhaps was there a more glaring absurdity in any system of jurisprudence than the one in question. The common sense of all mankind must for ages have pronounced against it, as a thing hardly to be credited in the history of the most barbarous people. Yet only mark how long it triumphed over reason, and how reluctantly it was abandoned by the professors of the law. Four hundred years before the stat. of Geo. II. put it down, our ancestors had made the first step towards rendering judicial proceedings intelligible to those who alone were interested in them, the parties and the publick, by prohibiting the use of French in oral pleadings; and the very next step which the Legislature was permitted by the lawyers to take, was the one we are now adverting to, after the lapse of that vast interval. The statute of Edward III., * whilst it put an end to the practice of speaking a foreign living language in the Courts, ordained all the writings to be in a dead language, much less intelligible to the people. But as few in those days could read any thing, the inconvenience was not very great.-Towards the middle of the eighteenth century, when the inconvenience, we could almost say the indecency, of the practice was gross and glaring, there was the usual difficulty in obtaining its abrogation; and the accustomed arguments were used in its defence. The Bill met with a strenuous opposition in both Houses; but particularly, as was to be expected, in the Lords, where Lord Raymond, being Chief Justice of the King's Bench, took the lead against it. † The steady determination, however, of the Whig ministers, carried the measure through; and the preamble of the Act is worthy of attention, as well as that of the older statute, because they are couched in terms which form a very striking contrast to the
36. Edw. III. c. 15.
† Lords' Debates, IV. 50.
squeamish language of the present day. When, by some extraordinary accident, or by the irresistible force of popular opinion, the friends of liberal and humane policy succeed in carrying any amendment of our code, the greatest fear is always betrayed of seeming to admit that the old practice was absurd and mischievous. The preamble, which should, with becoming frankness and honesty, speak the mind of the Legislature, fritters down the reasons for the enactment to something so obscure and so feeble, as to leave the unlearned reader in great doubt whether or not the change was justifiable, and to convince the learned, beyond all doubt, that it was either reluctantly or unthinkingly adopted. Whereas it is expedient to enact, as is hereinafter enacted,' is no uncommon preamble in modern statutes. Whereas the said act hath not been found effectual,' &c. is as far as blame is ever carried. More commonly, the phrase is "Whereas the said act hath not produced the good • effects that were expected.' In one instance, where a very gross abuse was to be done away, the iniquitous and senseless privilege of Members of Parliament to receive, without any cost, office copies of bills in equity filed against them, (which rendered it impossible to sue them for inconsiderable sums, e specially where more than one were to be made defendants), the only censure passed on the practice was, that justice may be ad⚫ministered more equally in point of expense. And on another occasion, when a bill, repealing a most barbarous capital felony, was sent up to the Lords, with the preamble- Whereas it is "highly expedient,'-their Lordships, out of their signal tenderness towards the bad law now in its last extremity, were pleased, with much solemnity, to expunge the word highly; nicely deeming, that though the abrogation might be expedient, it was by no means highly expedient. To all this squeamishness, the preambles of the older statutes afford but little countenance. That of Edward III. speaks openly of the great mischiefs' occasioned by the use of a foreign tongue in pleadings; states the advantages arising from every man understanding the law, and thus being able to govern himself, without offending it; and adds, (what in our times would be held little less than disaffection), that in divers regions and countries where the king, the nobles, and others of the realm have been, good governance and full ' right is done to every person, because that their laws and cus⚫toms be learned and used in the tongue of the country.' The statute of Geo. II. follows, in great part, the words of this honest preamble; and adds, that it is meant to protect the lives and fortunes of the subject, more effectually than heretofore, from Q
VOL. XXXI. NO. 61.
the peril of being ensnared and brought in danger by forms and proceedings in courts of justice in an unknown language.' We have been led unawares into this digression, by the great interest of every thing relating to that short but important chapter in our political annals, which records the history of the amendments of the law. But we must now return to trace the progress of the work more immediately before us.
In 1735, the seventh and eighth volumes were edited, but not by Mr Emlyn; and, in 1766, after the third edition had appeared of the first six volumes, a ninth and tenth were adkied. At length, in 1775, Mr Hargrave published a complete edition of the whole ten volumes. Beside furnishing a new preface, and reprinting all the former ones, he did not profess to make any additions or alterations, until the year 1781, when he published his eleventh and supplementary volume, in which a number of most curious and important cases are given, with his usual fulness of learning and illustration, and a uniform set of tables, alphabetical and chronological, added, so as to make the entire series for the first time one whole work, and easily consulted. The industry of Mr Hargrave added no less than twenty-eight cases to those of the period over which the former editions extended; beside three celebrated causes, Falerjos v. Mostyn, the Dutchess of Kingston's Case (the most frequently cited of any perhaps in the whole State Trials), -and Rex v. Horne. He likewise gave an appendix of eight valuable juridical pieces, formerly scattered over different Reports, and highly convenient to have brought together.
Valuable as Mr Hargrave's was beyond all the former editions, there is no doubt that he left a great deal to be done by succeeding editors, even upon the ground which he had laboured. He admits himself, that there are upwards of a hundred Parliamentary trials during the period embraced by his edition, and which former editors had omitted, that is, Impeachments, Bills of Attainder, and Bills of Pains and Penalties. Yet his eleventh volume only contains six of those hundred proceedings, which, with those of the preceding editions, do not make above fiveand-thirty in all. That learned person had not added a single note or illustration to the ten first volumes; yet, since Mr Emlyn's time, many points had occurred, and many sources of information been opened, which required the notice of an elaborate editor. There remained likewise a number of interest
He omits, however, a curious calculation in the second edition, where the price is deduced from taking 14:6 sheets at three halfpence a sheet for small, and 24d. for large copies.