We were never so savage as our laws have sometimes been. A short time before the abolition of capital punishment for stealing to the amount of forty shillings in a dwelling-house, Lord Kenyon sentenced a young woman to death for that offence; whereupon she fainted, and the judge in great agitation, exclaimed, "I don't mean to hang you! Will nobody tell her, I don't mean to hang her?" Of the pious perjuries, who does not feel that the chief crime was in the law, not in the administrator, and that the law must bear the heaviest weight of Sir Samuel Romilly's objection to the "looking upon the evasion of our criminal laws with so much favor, as to regard the profanation of the name of God in the very act of administering justice to men, as that which is in some degree acceptable to the Almighty, and as partaking of the nature of a religious duty!"
In an amusing law sketch, written by Professor Amos, we come across some of the former subtleties of homicide. Accidental homicide, if it arose out of the doing of a lawful act, was held excusable; if it arose out of a trespass, not a larceny, was manslaughter; but if it arose out of a larceny, was murder. Hobbs, the philosopher, living in Hale's time, expressed the law in this form: "If a boy be robbing an apple-tree, and by some chance fall therefrom, and break the neck of a man standing underneath, the crime consists in a trespass, to the damage, perhaps, of sixpence. Trespass is an offence, but the falling is none, and it was not by the trespass, but by the falling that the man was slain; yet Coke would have him hanged for it, as if he had fallen of malice prepense."
The idle subtleties that have been spent by criminal lawyers upon the subject of theft, could scarcely be seen to more advantage than in the consideration of that element in thieving, which consists in carrying the stolen thing away; or as the books call it, asportavit. Thus it was held that if a prisoner removed a package from the head to the tail of a wagon, the asportavit was complete; but if he moved it only by lifting it up where it lay, and standing it on end, for the purpose of ripping it open, the asportavit was not complete, because every part of the package was not shown to have been moved. The central point of it might be exactly where it was before.
There are one or two legal terms, the meaning of which may not be generally known. We need remind no one that lunacy is derived from an idea that madness is connected with the moon; but many may not be aware that felony is derived from an idea that felons are prompted by an excess of gall. Felonies were crimes committed felleo animo, with a mind affected by the gall. Lunatics and idiots, it was said, could not be criminals for want of gall.
We have an arbitrary way of fixing fourteen years as the age in relation to responsibility for certain capital offences. We take that age from the East, where puberty comes early, and it is not the sole trace of an origin from Constantinople in many of our statutes. The Code Napoleon is wiser, fixing the age at sixteen. Our old laws took little thought at all of any such distinction. In 1629, a child between eight and nine years of age was hanged for arson at the Abingdon Assizes. As late as the year 1780, a boy of fourteen was hanged for participating in a riot. It might be said, however, that a London street-boy is mature at ten. Account was given to a parliamentary committee of one of these unhappy creatures who, during a career of five years, had robbed to the amount of three thousand pounds. Besides numerous minor punishments he had been sentenced to death; but, from compassion, sent to the Philanthropic Asylum instead of the gallows. Thence he escaped, and was for another offence transported for life,—all before the age of thirteen.
There were some niceties connected with the judicial treatment of the law of Escheat, or Confiscation, which led even to a necessity for bringing torture into common use. If prisoners liable to confiscation of their goods were mutes, that is to say, refused to plead,
