Page:The Green Bag (1889–1914), Volume 01.pdf/410

Rh TIME'S SPONGE.

HERE are a few curiosities of our existing law that wait to be, as Sir Matthew Hale would say, laid flat. A good many have been laid flat since his time; for that famous judge and historian of the Pleas of the Crown lived in the Stuart days, and died in the year 1676. A great many, he tells us, had been laid flat when he lived; for instance, it had ceased to be felony and death to sell a horse to a Scotchman.

Jack Cade, if Shakspeare knew his mind, meant that when he was king it should be felony to drink small beer; and that, we might say, looking at some actual cases, would have been no great sharpening of the law. We have now not more executions in the country every year than used to be provided often in a single morning only. A hundred years ago, there were never less than a dozen culprits hung in a row after every Old Bailey Sessions; and Townsend, the Bow Street runner, said he remembered a sessions, held at that seat of justice in 1783, when Serjeant Adair was Recorder, after which forty were hanged at two executions.

In earlier times the lightest heed was taken of the punishment of death. It was no rare and solemn sentence, but staple judicial routine, that might be enlivened with a joke, when possible, to color its monotony. Thus Lord Bacon tells of his father, Sir Nicholas, that when appointed a judge on the northern circuit, "He was by one of the malefactors mightily importuned for to save his life; which, when nothing he had said did avail, he at length desired his mercy on account of kindred. 'Prithee,' said my Lord Judge, 'how came that in?' 'Why, if it please you, my lord, your name is Bacon, and mine is Hog; and in all ages Hog and Bacon have been so near kindred, that they are not to be separated.' 'Ay, but,' replied Judge Bacon, 'you and I cannot be kindred except you be hanged; for Hog is not Bacon until it be well hanged.

Of course crime was not lessened by extreme severity. As for the punishment of death, Mr. Harmer, a great jail solicitor, said in his evidence before the Criminal Law Commission, "In the course of my experience, I have found that the punishment of death has no terror for a common thief. I have very often heard thieves express their great dislike of being sent to the House of Correction, or the hulks, but I never heard one say he was afraid of being hanged."

The result of ordering men to do what they will not, or cannot do, is, when action of some kind is enforced, commonly absurd. The law used to compel jurymen, if they acquitted any accused man of murder, not merely to acquit him, but to name the guilty person. Whenever they could not do this to the satisfaction of their consciences, the juries declared that the real murderer was John-a-Noakes. That person of whom we speak so often as Jack Noakes in friendly tones, has been declared guilty by jury after jury of a series of horrible atrocities. Away with him then! Let him be laid flat! When larcenies were grand and petty, and a few shillings more or less in the value of a stolen article made the question one of life or death to the thief, juries used, in the most open way, to deal in what were called by Blackstone pious perjuries. It was a common thing for them to find that five-pound notes, or ten-pound notes of the Bank of England, were articles of the value of twelve pence, four shillings, and sixpence, or twenty-nine shillings, as the humanity of the case required. In fact, the result of the too great stringency of the law was a great laxity of practice.

Numerous, then, as the executions used to be, they did not represent a tithe or hundredth part of the amount of what was pronounced capital crime; nor the number of persons who were sentenced to death with out the smallest intention of hanging them.