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Romilly S

SAMUEL ROMILLY (1757-1818)

Romilly's Criminal Law Reform, 1808-18

Romilly's work greatly influenced by William Eden's 'Principles of Penal

Law' (1771), which in turn drew heavily on Montesquieu's 'De L'Esprit des

Lois' (1748) and Cesare Beccaria's 'Dei Delitti e delle Pene' (1764, first

translated into English in 1767 - and through him, Bentham). During the

C18th, rulers of most of the countries of Europe effected reforms to their

systems of criminal law: Catherine the Great, Gustavus III of Sweden,

Frederick William II of Prussia, and Joseph II of Austria, as well as

revolutionaries in France, all brought about substantial changes which to a

greater or lesser extent implemented the ideas of Montesquieu and Beccaria.

Over large parts of Europe the incidence of the death penalty was reduced,

and attempts were made to make the punishment bear some relation to the

gravity of the offence. However, in 1808 when Romilly started on his

campaign for reform, England alone of all the major countries of the

civilized world had made no attempt to improve the harsh system that had its

origins in Middle Ages: reasons lie in changes wrought by early instance of

Industrial Rev. here, in particular concentration of working class in

congested cities - widespread poverty and bad conditions led to chronic

state of unrest, and put severe strain on social order, long before any such

changes taking place in other countries of Europe. Thus, unlike European

rulers, British govt v. reluctant to relax any of the deterrents provided by

its v. harsh criminal law, particularly when considering havoc wrought by

French Rev.

In UK in early C19th, were more than 200 offences warranting the death

penalty (from trivial larceny to murder), as little or no practical

possibility of punishing a criminal in any other way: prisons were scarce,

and was no such thing as a prison service to staff them; furthermore,

absence of anything resembling a police force meant that the detection of

crime was erratic, so that there was a tendency when an offender was brought

to justice to treat him with maximum severity, as an example to others.

Plus, as England passed from simple feudal society into complicated

mercantile one, Parliament found it necessary to declare more and more

courses of conduct antisocial and label them crimes - as situation provided

more and more novel opportunities and varieties of antisocial behaviour.

Plus, also had opposite effect - juries and judges appalled by sending so

many to execution, which meant that often during C18th fewer than half of

those charged with capital offences were executed - instead, as were few

prisons, had to be acquitted. Many writers on both sides of the debate

during C18th - big influenced on Romilly was William Eden's 'Principles of

Penal Law' (1771) which called for reform based on proposition that

punishments should, as far as possible, be proportionate to the gravity of

the offence. Romilly, influenced by Eden, in his later yrs v. concerned -

like many others - at this situation, and dedicated last ten yrs of his life

to humanizing criminal law of England.

In 1806, already chancellor of Durham, 53-yr-old Romilly was appointed

Solicitor-General, entered the House of Commons, and was knighted. However,

govt went out in 1807, and in following general election he failed to be

elected - quite ironic that instead in Feb 1808 he bought rotten borough of

Wareham, Dorset for £3,000, for which he was then elected as MP on 20 April

May 1808, he introduced 2 bills to Parliament - one to repeal a statute of

Elizabeth I which made pick-pocketing a capital offence, and the other for

granting compensation to those who were tried for felonies and acquitted.

During speech he put forward principle which was basis for all his thought

on the subject, "that it is the certainty, much more than the severity of

punishments, which renders them efficacious", asserting that this principle

had been recognized in Europe since the writings of Beccaria, but had had no

effect on the English legislature: in fact, opposite had happened, for in

England "it is notorious how few of those who are condemned, actually suffer

punishment", and gave figures which suggested that, on average, out of every

20 offenders found guilty of less serious capital offences, only one

suffered death. Romilly spoke v. eloquently (also pointed out that, with

pick-pocketing, was actually in interests of criminal to kill victim so

couldn't testify against him, as punishment was theoretically the same), and

repeal of this Act of Elizabeth was passed in July 1808 (though not without

Romilly gaining intense hatred and "savagery" of highly conservative country

squires, who were against any kind of liberalisation - Romilly blamed French

Rev for this, which had made large sector of those in power dread any kind

of liberal "innovation"), but several opposed second bill and so Romilly

decided not to proceed with it. Within a yr, however, first Act had proved

its worth - had been great increase in convictions of pickpockets because,

Romilly argued, now prosecutors, witnesses and jurors all now far more ready

to come forward and convict, as prisoner did not face death penalty.

Almost 2 years before Romilly launched next attack on criminal law -

although meanwhile through his influence the Quaker William Allen and

Romilly's friend Basil Montagu had started a society intended to push for

reform - 'The Society for diffusion of knowledge upon the punishment of

death and improvement of prison discipline' - which proved useful in

changing public opinion in following years. Then, on 9 Feb 1810, Romilly

introduced bills to repeal three existing capital statutes - for

shoplifting, burgalry, and stealing from from ships. However, during last 2

yrs opinions in Parliament had hardened against him, esp. as two ultra

reactionary Tories - Ellenborough and Eldon - still held the two top

judicial posts (Chief Justice and Lord Chancellor), and were committed to

retaining severity of the criminal law. Romilly therefore introduced bills

expecting them to fail, but wishing to raise consciousness of inhumanity and

absurdity of present laws - therefore gave a long and detailed speech, again

making Beccaria's argument that the certainty of sentence was far more

effective deterrent than severity of sentence that might be imposed

(Beccaria, 'On Crimes and Punishments' )and pointing out that some English laws so

excessively harsh or patently absurd (e.g. quoted law which made it a

capital offence for a person over age of 14 to be found associating for a

month with persons calling themselves Egyptians) that judges found juries

loath to convict, so many laws - which had in fact evolved through no

system, but largely by accident - were in fact incapable of being

administered - said it made a mockery of Parliament and legal system.

Instead argued for aid of a vigilant and enlightened police, rational rules

of evidence, clear and unambiguous laws, and punishments proportional to

guilt and crime - most importantly (he felt) robbery with violence being

made a greater crime than robbery without. Romilly then ended speech with

long examination of high conservative legal philosopher William Paley, whose

works (esp his 'Principles of Moral and Political Philosophy', 1785) were

used by ultra conservatives to defend (and try and extend) and give

respectability current system - esp as Paley respected writer in other

fields. Pointed out absurdity of some of Paley's arguments - eg his

proposition that if the laws were known accurately they might be evaded, and

so was desirable that they should not be generally known.

All this extremely modern and taken up in C20th in such statutes as the

Larceny Act and the Offences Against the Person Act, both of which define a

wide variety of offences in order of gravity and then affix to each a

maximum penalty commensurate with gravity of offence. However, Romilly right

in his pessimism re these three bills, and when were introduced, all three

were defeated. Romilly not altogether disheartened, however, as he was

gradually gaining some important allies in cause - including, unexpectedly,

George Canning - and was now just as much committed to task of changing

public opinion, as saw that this was ultimately the way to change mind of

Parliament - copies of speech made available to public, and was soon after

published as a pamphlet entitled 'Observations on the criminal law as it

relates to capital punishment, and on the mode in which it is administered'

(1810). Romilly never gave up on these three minor bills - brought them

forward several times during the next ten yrs (in 1811, 1813, 1816 and 1818)

but never succeeded in passing them through both Houses of Parliament

(always stopped in Lords).

However, in 1811 Romilly had great success: introduced five bills to remove

the death penalty from various offences on 29 March 1811 - his three former

ones, and two others for repealing the Acts which made it a capital offence

to steal from bleaching grounds in England and Ireland - presented case with

two petitions put forward on behalf of the proprietors of bleaching grounds

in N. Ireland and of calico printers in the London area: owners were calling

for repeal of Acts, as were constantly, because of exposed nature of their

property, prey to thieves, but severity of punishment laid down by law meant

that they were unwilling to prosecute - result was that offenders continued

to offend, as impunity more probable than punishment, and property remained

insecure, and petitioners therefore asked that offences should no longer be

deemed capital. This was splendid bit of extrinsic evidence used by Romilly,

who was also one of first to use statistics (although was extremely

difficult to obtain decent stats then) in his speeches as persuasive

evidence - e.g in arguing for end of death penalty for offence of

shoplifting, he stated that in past 5 yrs there had been 598 people arrested

for this offence, of which only 120 had stood trial, of which only 20 were

convicted, and of which only 1 executed. This time, all five got through

House of Commons, but met with opposition from Ellenborough and Eldon in

Lords, supported by bishops - result was that Romilly's three main bills

were once again thrown out of Lords, but the two relating to bleaching

grounds were passed.

Romilly also began campaign for effective police force in London: system at

that time was for payment to local parish constables by victims for

detection of offenders - R. argued that present system actually encouraged

police to let prisoners go, as were released in hope that they would commit

more crimes and therefore have a bigger bounty on their heads. With MP named

Bennett, Romilly pressed House of Commons to set up a Committee to inquire

into state of the police in London - however, this did not meet his

objectives: despite presenting much evidence to it, committee reported in

1814 that a preventive police force would not only be impracticable but also

"odious and repulsive".

Romilly also addressed problem of alternative forms of punishment - 1810

first raised question of pressing the Government to take action on two Acts

passed some yrs earlier by which power had been given to erect prisons

(prompted by Eden, Howard and Blackstone, and by ideas of Bentham) for those

prisoners with hope of rehabilitation, but nothing had happened. Instead, by

early C19th punishments were common gaol (where all prisoners mixed

together) or transportation - punishment invented in reign of Charles II:

those sentenced to transportation had generally been sent to North American

colonies til American Rev, but now this not possible, and judges now

permitted to sentence them to imprisonment on the hulks - in most appalling

conditions - as "temporary" solution to being sent to New South Wales, but

were often there for years. Romilly believed only solution was erection of

penitentiary houses advocated by Bentham, and sentencing to hulks was

discontinued - continually pressed for this during 1812-18, but did not live

to see it. Did, however, successfully campaign for abolition of the pillory

in 1816, although Lords decreed should be kept only for crime of perjury -

but from this point was no longer used, and was removed from statute book in

1837.

Most obvious oddity about Romilly detailed in DNB - odd reading matter as

child (though perhaps not so odd for C19th), including v. distant mother, an

"immense martyrology" and Newgate Calendar, combined with supernatural

stories from Methodist maid gave his mind a "gloomy" cast - DNB links this

to his coldness, reserve etc. and to dramatic suicide by throat-cutting 4

days after wife's death (2 Nov 1818) - was only person he apparently was

close to.