Something that might almost be called a rush of reform had come on many departments of our legislation and our social system. The rigour of capital punishment was reduced by several successive Acts of Parliament. Up to 1832 horse-stealing, sheep-stealing, coining, larceny to the value of £5 in a dwelling-house, and a number of other such offences were punishable by death. At one period, a little earlier, a hungry person stealing a loaf of bread from a baker's shop was liable to the death penalty, and many such offenders were actually put to death. The juries at length began to revolt against the capital sentences, and made their objections felt in a very practical sort of way. When a larceny to the value of £5 from a dwelling-house was a crime to be visited by capital punishment, the jurors frequently got out of the hideous duty imposed upon them by bringing a verdict which declared that the value of the article stolen was £2 10s. or some such smaller sum than the amount needed to make a capital offence under the law. In 1832 capital punishment was actually abolished by statute for horse-stealing, sheep-stealing, and many similar offences, including the larceny of goods to the value of £5 from a dwelling-house.
Men like Romilly and Bentham devoted themselves heart and soul to the mitigation of our penal laws. One influence that assisted them considerably in their humane efforts was found in the fact that the compassion of the judges, of the law officers, and of the Crown, was found to be acting constantly in mitigation of the death sentences. A humane judge recommended to mercy, and humane law officers advised the Sovereign to act upon the recommendation in many cases which were in nowise distinguishable, so far as degree of guilt was concerned, from other cases in which convicted offenders had been publicly executed. In 1824, for instance, one thousand and sixty-six persons underwent sentence of death of whom only forty were executed. In 1825 one thousand and thirty-six were sentenced to die, and only fifty were put to death. Thus, as men like Romilly and Bentham were constantly pointing out, the one great terror of a sentence of any kind, the certainty of its being carried out, was removed from the penal code. The chances were many to one that a man or woman sentenced to death for some comparatively trivial offence would get off despite the rigour of the Act of Parliament. This disproportion between the number of death sentences and the number of executions was sure to grow greater year after year, according as public opinion became more and more aroused to the monstrosity of the bloodstained Code that had so long existed. Therefore by Act after Act of Parliament, this, that, and the other offence became gradually removed from the black list of the death sentences, until by degrees the death penalty came to be applied, in point of fact, to cases of murder alone. On the other hand our sentences gained in certainty what they lost, if such a word may be allowed, in severity. That is to say the criminal was made to know exactly the risk he was running, and was taught that if he committed a certain crime he would be sure to incur a certain penalty. It is, of course, a question with many enlightened and philanthropic persons whether the death penalty ever ought to be inflicted at all.
There is still something of uncertainty about the infliction of capital punishment. A famous parliamentary orator not many years dead once said, in an outburst of sarcasm, that if he were to advise a criminal, his advice would be above all things not to commit a commonplace murder. If you commit a commonplace murder, he went on to say, you will be tried, convicted, and hanged, and the outer public will never take any notice of the matter. But if you commit some extraordinary, outrageous, and startling murder, a number of benevolent persons are sure to insist that such a crime could only have been committed by a madman, and the criminal will get off on the ground of his assumed insanity and will only be relegated to an asylum for the insane during what is formally called the pleasure of the Sovereign. A late eminent judge, who according to Carlyle's phrase "had swallowed formulas," once said that a man in England who wanted to commit a murder had only to kill his victim and then announce himself as the Emperor of China in order to escape the penalty of death and be relegated to the comparative comfort of a lunatic asylum. It is not necessary here to go into the question whether or not the death penalty ought or ought not to be abolished altogether. It is so abolished in some countries of Europe and in some States of the American Republic; and the argument is still going on as to the effect of abolition on the increase or the decrease of crime. It is perfectly certain that while the death penalty was enacted for all manner of minor offences the offences did not decrease in number. How far the teaching of this evidence may be practically pushed, and whether the death penalty has in any cases the effect of diminishing the general average of crime, is a question which to this day occupies the serious attention of philanthropists and law reformers everywhere.
But as the number of executions grew less and less there naturally arose the question, what to do with the criminals whom we did not get rid of by the gallows. For a long time we had a convenient and easy way of disposing of the criminals whom we thought not bad enough to be put to death and not good enough to be allowed to live, even in prisons, amongst us. There were the Colonies - what more convenient places could there be to shoot our human rubbish into ? Therefore, so early as the days of Charles II., the system of transportation was invented and employed for the purpose of getting our lesser criminals quietly out of our way. Once they were removed out of sight of our shores public opinion here for a long time troubled itself but little about them. At one period we sent a good many of our criminals, men and women, off to Virginia or some other of our American Colonies. The readers of Daniel Defoe, and, much later still, of Charles Reade, will know something about the working of that system. The American Colonies, however, soon raised an outcry against this method of populating their land. They did not want Moll Flanders or any of her pals and comrades to settle on their soil. They insisted that places like Virginia, for instance, were made for better purposes than to become the outlying prison-grounds for the scum of our criminal population. In due course of time the uprising of the American Colonies, the War of Independence, and the establishment of the United States, settled the whole question so far as that part of our Colonial Empire was concerned. But we had other colonies still to fall back upon, and in 1787 we made the experiment of sending a cargo of criminals out to Botany Bay, on the eastern shore of New South Wales. We repeated the experiment again and again, and we also began to send our exiled fellow-subjects to Van Dieman's Land, or Tasmania as it is now called, and to Norfolk Island - a lonely island in the Pacific Ocean, some eight hundred miles from the shore of New South Wales. Norfolk Island, however, had a worse destiny in store for her than to be the receptacle of our exported criminals. Norfolk Island became, in fact, the penal settlement of a penal settlement. In other words, those among our criminals who made themselves by fresh crimes intolerable to the community of New South Wales, were despatched, as a still further punishment for their offences, to take their lodgment in Norfolk Island. The imagination of man can hardly conceive a condition of things more horrible and loathsome than that engendered thus in Norfolk Island.