Early nineteenth-century critics argued that English criminal law had lost its authority. They labelled it a ‘bloody code’ and contended that the selective enforcement of an unwieldy mass of capital offences was not an effective means of deterring and preventing crime. According to one argument, the discretionary and arbitrary nature of the law's administration was the core problem and the solution was a uniform law that was applied consistently and centrally formulated according to fixed principles. The aim as set out by the Whig law reformer, Samuel Romilly, was ‘by rational rules of evidence, by clear and unambiguous laws, and punishments proportioned to the offender's guilt’ to approach as near to certainty ‘as human perfection will admit’.Footnote 1 A second line of argument focused upon the law's severity, which, it was contended, had alienated public feeling. According to another prominent Whig, James Mackintosh, the law had to be ‘brought more into accordance with the feelings of men. He would fain make the penal laws of his country the representative of the public conscience, and would array it with all the awful authority to be derived from such a consideration.’Footnote 2 In this analysis, the law's authority was based firmly on its alignment with public opinion.
These arguments overlapped in the critical parliamentary debates on criminal law reform in the 1810s and 1820s, but they were distinct. Those in favour of precise and detailed statutory regulation did not necessarily favour mild punishments and, conversely, those who contended that the law had to reflect public opinion did not always demand more prescribed statutory content or more certainty in the law's administration. Proponents of both arguments were frequently allied in parliamentary debates, but attention to the political and ideological distinctions that they reflected is necessary if our account of the politics of criminal law in this period is not to be dominated by the ‘dreary dialectic between reform and reaction’.Footnote 3 Work that traces the histories of particular crimes through the period or which analyses the contribution of specific groups has highlighted the variegated structure of the criminal laws, the ways in which public opinion was constructed, and the uneven effects of the legislation that emerged.Footnote 4
Individuals provide a valuable focus for the exploration of these themes.Footnote 5 This article focuses on a leading law reformer who exposes key strands in Whig thought and politics: James Mackintosh. A lawyer, judge, philosopher, historian, and MP (1813–32), Mackintosh took up the Whig leadership of the penal reform cause in parliament after Samuel Romilly's death in 1818.Footnote 6 He has been overshadowed by other figures, notably Romilly and Robert Peel, but his career deserves closer scrutiny, not least because it bridged the philosophical, political, and legal aspects of the issue. Mackintosh had direct experience of the criminal law as a barrister in England and as Recorder of Bombay (1804–11).Footnote 7 He engaged actively in the philosophical debates that bore on the subject and became a key figure in the political and parliamentary arenas in the critical decades of the 1810s and 1820s.
A study of Mackintosh illuminates the different dimensions and axes of debate and brings the aristocratic or Foxite Whig view of criminal law into sharp focus. This perspective has not been clearly recognized in accounts of the law reform movement, which have assimilated Whig views with the ‘triumph of liberal notions of justice’.Footnote 8 In contrast, recent studies of the political, social, and intellectual dimensions of Whiggism have distinguished it much more carefully from Liberalism and emphasized the Whigs' distinctive contribution to the government and politics of the period.Footnote 9 In the context of criminal law reform, this influence can be traced through into the 1830s and the approach of Lord John Russell who made the sweeping and transformative changes that seemed unattainable in the 1810s and 1820s. If the liberal character of Peel's legislation made a significant contribution towards making them attainable, a focus on Mackintosh highlights their Whig foundation.Footnote 10 The first two parts of the article outline Mackintosh's ideological position and general view of criminal law. The third part attends to Mackintosh's role in the politics of law reform and the fourth examines the implications of Mackintosh's approach for the practice of legislation.
I
Mackintosh's wide-ranging interests and activities make him worthy of close study but also make his influence difficult to evaluate. His reputation, as he feared it would be, is of someone who did not quite fulfil his potential and make a lasting mark in any of his chosen fields of activity.Footnote 11 He achieved widespread fame with the publication of Vindiciae Gallicae (1791), but he did not go on to produce a major work of history or moral philosophy and his temperament and health did not allow for sustained success in the political or legal arenas.Footnote 12 According to one historian of philosophy, the ‘greatest difficulty in understanding Mackintosh is perhaps that of not overrating him, while taking him seriously enough to be worth investigating as more than a purely political creature’.Footnote 13 Mackintosh's philosophic creed did not provide a consistent or comprehensive theoretical framework to guide his approach to criminal law, but there were revealing points of interconnection.
Mackintosh's view of criminal law and its development was grounded in his belief that the law had to be in harmony with the particular state of society and opinion at any given time. This owed much to Scottish intellectual thought and the influential teaching and writings of Dugald Stewart, chair of moral philosophy in Edinburgh (1785–1810).Footnote 14 Mackintosh commented that Stewart's ‘disciples were among his best works' and he could certainly be counted as one, alongside the Edinburgh Reviewers Francis Horner, Francis Jeffrey, and Henry Brougham and other prominent Whigs, including Russell.Footnote 15 A central tenet of Stewart's approach was that society progressed through different stages of development, a process that was driven by enlightened opinion and growing political wisdom. For Stewart, this progress was inevitable, and would ultimately result in less need for legislation, but it required guidance from the advanced intellects of the age through education and gradual political reform.Footnote 16 Mackintosh was less sanguine than Stewart about the inevitability of progress, but he shared his view about the importance of history, opinion, and the need for an intellectual elite to elucidate a principled and moral basis for progression.Footnote 17 In England, the state of society allowed for this to be achieved through gradual reform and education. In contrast, Mackintosh initially supported the French Revolution on the basis that the spread of enlightened ideas meant that such radical measures were an appropriate and necessary response to repression. Subsequent events in France prompted him to revise his assessment of the extent to which those ideas were established and withdraw his support in favour of the view that change had to be effected through more moderate means.Footnote 18 This shift helps towards an understanding of his approach to law reform. It suggests a familiar trajectory, from a radical to a more conservative and gradualist position, but it also emphasizes the significance of time, place, and context in his approach to legal and constitutional change.
Mackintosh's organic Whiggism can be contrasted with the dominant Benthamite or mechanical political ideology of the period in which society was conceived as static: a machine that had to be regulated by neutral laws that allowed individuals to make free, self-interested, and rational choices.Footnote 19 In the context of criminal law and punishment, this ideology found expression in Beccarian-influenced penal philosophies, in which offences and punishment were to be organized according to fixed principles and which therefore demanded system and regularity in the criminal law.Footnote 20 This applied to punishment and to the substantive criminal law, the authority of which was to be sought in the formal sources of law: in statutes and the binding decisions of the higher courts.Footnote 21 The ideology was also deeply linked with evangelical religion, which was central to its appeal and widespread dissemination.Footnote 22 Evangelical arguments for the penal laws to be made precise and to be reformed in order to reflect the strict economy of providence had much in common with such demands for a strictly regulated law.Footnote 23 Historians have characterized the early nineteenth-century criminal law reform movement as a whole in terms that reflected the mechanical political ideology of the period. The criminal law in the first half of the century has been described in terms that emphasize the emergence of ‘a more restrained, rule-governed, predictable, depersonalised process'.Footnote 24 The policy of law reform, in this view, was to make it more mechanical in holding people unremittingly responsible for their own actions.
Mackintosh was closely associated with the group of law reformers who propagated Benthamite or Beccarian arguments, albeit in a moderated form, to a sceptical parliament in the 1810s and 1820s.Footnote 25 The extent of Mackintosh's sympathy with these arguments can be gauged by his fluctuating attitude towards Bentham. He took considerable interest in Bentham's work on penal reform, especially while serving as Recorder of Bombay, where the legal and administrative framework was relatively new and, in Mackintosh's view at least, the scope for corruption was very wide. It therefore appeared to Mackintosh as suitable territory for experiment and for some of the more radical measures proposed by Bentham.Footnote 26 Indeed, in January 1804 shortly before departing for India, he met Bentham and expressed support for his ideas and his intention to act on them in India.Footnote 27 In 1806, he went so far as to declare: ‘I never sit in a criminal court without being mortified by the consciousness of how little I can do to apply his (Bentham's) forces.’Footnote 28
This suggests a close affinity but their agreement that punishment should be made milder has, in accounts of penal reform at least, obscured some basic differences in philosophical approach.Footnote 29 Indeed, one historian has described Mackintosh as the ‘very antithesis of Bentham's and Mill's. Where they saw society as a mechanism, he saw it as an organism. They appealed to reason; he appealed to history.’Footnote 30 Mackintosh was critical of the ‘selfish’ system of morals and ethics espoused by the ‘modern advocates of utility’ and their inability to accommodate benevolence in their concept of virtue.Footnote 31 This conventional critique, despite Mackintosh's claims to originality, was not a significant contribution to contemporary moral philosophy, but the emphasis on benevolence and sympathetic feeling informed his approach to the criminal law.Footnote 32 These higher virtues were so subtle as to ‘escape the distinct contemplation of all but the very few who meditate on the acts of the mind’.Footnote 33 For Mackintosh, as well as Stewart, the study of moral philosophy and cultivation of mind needed to access these virtues as a means to provide the far-sighted leadership in public life that would allow for the wider spread of enlightened opinion.Footnote 34 This active intervention and leadership was a prerequisite for social progress; individuals could not be left to make unguided decisions on the basis of rational self-interest.
The differences in approach were clearly manifest on questions of political and constitutional reform, where Mackintosh's moderate position clashed with that of radical Benthamites.Footnote 35 On criminal law, there was more overlap and on many substantive issues, there was common ground. The distinctiveness of Mackintosh's ideological position was evident in three key areas: the measure of punishment, judicial discretion, and the relationship between law and national character.
II
Opposition to the death penalty united many of those who argued for some measure of criminal law reform in the early decades of the nineteenth century. Mackintosh was not an abolitionist, but he was firmly opposed to the widespread use of capital punishment. His time as Recorder of Bombay gave him the opportunity to put his ideas into practice.Footnote 36 On his arrival there, Mackintosh announced that he was ‘very desirous of trying an administration of criminal justice milder than any which has been attempted in any part of the British dominions'.Footnote 37 On the eve of his departure, he was able to declare that the ‘experiment’ had been a success on the basis that there had been no increase in crime, although Mackintosh did not fulfil his expressed hope of leaving Bombay with a ‘bloodless ermine’.Footnote 38
If there was common ground on the need to mitigate punishment, Mackintosh's view of the purpose of punishment rested on a different foundation from that which underpinned the position of those who viewed criminal law in mechanical terms. They proposed that punishment should be set at the minimum level necessary to deter individuals from engaging in the prohibited conduct. The graduated scale of punishments that this calculation would produce was aimed at minimizing judicial sentencing discretion.Footnote 39 Bentham, after some vacillation, found no room for the death penalty in his scheme of punishments, but there was nothing in principle to prevent his affixing it to the most serious offences.Footnote 40
Mackintosh's opposition to overly severe punishments also stemmed from a belief in their ineffectiveness, but he did not measure effectiveness with reference to any universal principle. In his view, punishment had to be calibrated according to the particular state of society. A milder system of punishment, which commanded widespread public support, would be more effective in preventing crime than one based on severity. ‘Punishment is exemplary when it inspires a fear of committing the offence. But if it be repugnant to the moral sentiments of the community it may excite other adverse feelings which will prevail over fear. No punishment can be exemplary with which the community do not sympathise.’Footnote 41 If punishment was to be set according to community standards, the circumstances in which a severe punishment might be necessary could not be fully set out in advance. In sentencing, judges had to take account of feelings and the offender's motives in order to assess the degree of moral depravity and to calculate punishment. Mackintosh was therefore fundamentally opposed to Bentham's measure: ‘There could be no greater error in criminal legislation, than to suppose the mischief of an action was to be the sole regulator of the amount of punishment to be attached to it.’ Criminals did not act as a result of deliberation, but were ‘hurried away by the strong passions that were imprinted in their nature’.Footnote 42
This view demanded much more flexibility in the measure of punishment than would be allowed for in a system in which punishment was precisely calibrated by legislation.Footnote 43 Sentencing an elderly custom-master of Bombay in 1807, Mackintosh argued that the judge should take into account the ‘natural consequences' of the offence for the particular offender when determining the ‘legal punishment’. If the character and family of the accused meant that the ‘natural’ punishment was greater, the legal punishment could be reduced.Footnote 44 The courts should cultivate virtue through a compassionate regard for age in sentencing. Conversely, Mackintosh was willing, if the occasion seemed to require it, to use his sentencing discretion to produce a very different sort of effect. In 1810, he had to sentence an Irish artilleryman who had killed ‘a poor, old, unarmed and unoffending seapoy of police’ with a sword and the only mitigating circumstance was the fact that the offender was ‘mortally drunk’. Mackintosh determined to pronounce the death sentence and then ‘after letting the terror of it hang for some time over his head’ to respite him. He based his decision on the pragmatic ground that an execution would not ‘deter drunkards from murder’, but his manipulation of his sentencing discretion to produce an effect did little to promote the certainty of the law.Footnote 45
On the question of judicial discretion, the implications of Mackintosh's basic disagreement with Bentham's ‘selfish system’ of morals and neglect of feeling and intuition were far-reaching.Footnote 46 James Mill condemned Mackintosh's ‘sentimental system’ which encouraged judges to take a criminal's motives into account when sentencing, thereby licensing them to act arbitrarily.Footnote 47 Yet for Mackintosh, feeling and intuition were essential parts of the morality that was the foundation for judicial decisions about criminal responsibility and punishment. The position of judges and magistrates was crucial to the effective administration of the law because they could apply it in ways that were sensitive to social conditions and likely to promote moral values. This linked with Mackintosh's wider view of the need in public life for the active, expert intervention and guidance of an intellectual elite.Footnote 48 Criminal law and justice could not be set to run mechanically and systematically; it required management from judges and magistrates for whom Mackintosh envisaged a broad educative role. He aimed to make the law ‘the fruit of moral sentiment, in order to render it the school of public discipline’.Footnote 49
This approach was evident in Bombay where Mackintosh viewed the provision of general moral guidance to the community as a critical part of his judicial role. He placed considerable emphasis on his speeches to the grand jury, and his strictures on the moral qualities of the native population sometimes caused offence.Footnote 50 He viewed the discretion that he exercised in sentencing and interpreting the law as being of critical importance in adapting English law to Indian society. For example, he considered the Statute of Frauds very ill adapted to the ‘commercial habits of the people’, but when trying a forger felt able to exercise discretion ‘without which I should be guilty of constant and horrible injustice’.Footnote 51 He used his sentencing and pardoning discretion to avoid the use of the death penalty, but when a sufficiently serious case did arise in 1811 he reflected that he had ‘never signed a paper with more perfect tranquility of mind’ than when signing the offender's death warrant.Footnote 52
Mackintosh's time in India also illustrated to him the potential dangers of judicial discretion. He attributed many of the problems associated with the administration of justice in Bombay to the corrupting influence of the despotic power held by its officials.Footnote 53 This was particularly manifest in the context of police administration where the uncontrolled power of the police drew sharp criticism from Mackintosh. In the aftermath of a high-profile trial of a police superintendent for corruption, he recommended the replacement of the superintendent with three magistrates and the consolidation and revision of the police regulations as one means of restoring public confidence.Footnote 54 If the revision of the regulations might have obtained (qualified) approval from Bentham, his recommendation in a subsequent full report that the continuous presence of ‘one of the principal English gentlemen of the community’ to act as a public magistrate would ‘always be a sufficient security against oppression’ would not.Footnote 55
Mackintosh's fears concerning the dangers of corruption and unchecked power in Bombay did not apply to England. He contrasted the position of the Bombay police superintendent with that of the English judge who had little scope to do much evil because ‘the wisdom of our ancestors' had surrounded him with the ‘numerous and wholesale restraints of laws, of juries, of a vigilant Bar and an enlightened public’.Footnote 56 Bentham viewed the discretion held by English judges as being dangerously wide, arbitrary, and potentially corrupt.Footnote 57 Mackintosh objected to the scope of judicial discretion: ‘It was by the extent of discretion left to the judge in criminal cases, that we were now distinguished from, and opposed to every other country in the world.’Footnote 58 This might seem to be in line with Bentham's view, but his real objection was to the power that individual judges had over life and death. The problem was not judicial discretion per se, but the fact that ‘the life of man should depend on temporary or local policy, on the necessities of a particular district, or the interests of particular classes'.Footnote 59 This was unacceptable because it appeared unjust to the public. The solution was not to abolish judicial discretion altogether, it was to mitigate the punishment that made it objectionable. In Mackintosh's view, the practice of including death within the range of judicial discretion was problematical because it was ‘so modern’ and not grounded in history or principle.Footnote 60 Mackintosh made no demand to fetter other aspects of the judicial role in the administration of criminal justice.
At the heart of Mackintosh's view of criminal law was its relationship with national sentiment. His initial high hopes of using his position as Recorder of Bombay to promote virtue and make a general improvement in the character of the people quickly gave way to disillusionment. ‘The opposition between the sentiments of the people here and mine is so great that I see no means of doing good.’Footnote 61 These views are explicable, at least in part, by Mackintosh's view of the state and limited progress of civilization in Bombay. In his whiggish and organic view of historical development, England had advanced much further down the path of progress although problems remained. At the core of these problems lay the dissonance between the sanguinary character of the laws and the moral state of the nation. ‘It is one of the greatest evils which can befal [sic] a country when the criminal law and the virtuous feelings of community are in hostility to each other. They cannot be long at variance without injury to one, perhaps to both.’Footnote 62 English criminal law was ‘in many respects admirable and well adapted to the habits and feelings of the Country’ and Mackintosh cited the independence of the judges and their restraint by juries, public opinion, and a free press as key strengths.Footnote 63 Yet the law's authority was undermined by the severity of the law. Mackintosh told the House of Commons that the ‘final separation’ of law and practice had been brought about by the ‘ripening’ of the humane feelings of the country.Footnote 64 The capital laws were the ‘mushroom growth of modern wantonness of legislation’ and were unsuited to a society that was ‘growing more civilized and humane’.Footnote 65
For followers of the mechanical political philosophy, what was needed was a system that would minimize the scope for discretion and allow the criminal justice system to operate according to clear established rules. Mackintosh shared the desire for more certain laws, but thought this could be achieved by moderate legislative and judicial reforms. A new fixed code was unnecessary and inappropriate. He believed in a fundamental and universal moral framework, but this took effect in a variety of historically particularized forms and laws had to be adapted to the stage of society. He criticized Bentham and other philosophers for conflating law and morality and supposing that a universal principle of utility could determine law and guide individual actions.Footnote 66 For Mackintosh, laws had to be fashioned in the light of historical analysis and understanding of social and moral development. In early nineteenth-century England this, above all, required the law to be mitigated in order to restore it and to realign it with the customs and habits of the people.
Altogether to abolish a system of law, admirable in its principle, interwoven with the habits of the English people…would be too extravagant and ridiculous to be for a moment listened to…My object is to make the laws popular, to reconcile public opinion to their enactments, and thus to redeem their character.Footnote 67
Mackintosh focused most of his arguments on those aspects of the criminal justice system that appeared most objectionable and, in his view, least consonant with public sympathy. Mitigating punishment would minimize the disincentive to prosecute and convict and establish the necessary congruence between law and opinion.Footnote 68 This did not demand any reformulation of law according to abstract principles of justice and punishment. Mackintosh's analysis of the law and its problems was based on history and the failure of modern legislation.Footnote 69
Mackintosh's view of criminal law and society in England attracted the attention of Samuel Taylor Coleridge, whose work provided the principal ideological counterweight to Benthamism in the early decades of the nineteenth century.Footnote 70 The personal relationship between the two men, which dated from the 1790s, was chequered by disputes but recently uncovered correspondence reveals some convergence of view on the issue of criminal law.Footnote 71 A month after one of Mackintosh's lengthiest parliamentary speeches on the subject in 1822,Footnote 72 Coleridge wrote to Mackintosh to express his ‘heartfelt admiration of your parliamentary conduct’. On the criminal law, he noted the ‘perfect correspondence of your principles, arguments and objects to my strongest convictions – and this I can say of no other man in either house’.Footnote 73 It is difficult to gauge the extent of the correspondence in detail because Coleridge did not anywhere set out his views on criminal law. The most obvious connection is in their shared organic view of the law and its mode of development, but the association is also suggestive and, initially at least, rather puzzling in political terms. Coleridge provided intellectual sustenance to high Tories in their view of the state and the constitution. Criminal law reform was one of the issues upon which they made a concerted effort to resist the attempts of men like Mackintosh to mitigate the laws.Footnote 74 High Tories such as Lord Eldon are thus ranged at the opposite end of the political field to reforming Whigs like Mackintosh. This clear opposition was certainly manifest on the question of the severity of punishment, but when the content and means of developing the substantive law were in issue Mackintosh was more Coleridgean than Benthamite.
III
Mackintosh's ideology or mode of thinking about criminal law and its relation to society underpinned his approach to the politics of law reform in the 1810s and 1820s. By the time he entered parliament in 1813, he had firmly recanted his earlier, more radical, political views and adopted a moderate and conservative position. Indeed, on Mackintosh's return from India, the prime minister, Spencer Perceval, offered him a position in the Tory administration. He declined on the grounds of his disagreement on the Catholic question and entered parliament the following year as a Whig.Footnote 75 He became a significant figure in the party, at the heart of the Foxite Whig circle at Holland House and closely involved in developing party strategy.Footnote 76 He fitted into these circles alongside other Scottish educated intellectuals and Edinburgh Reviewers such as Brougham, Horner, and Jeffrey, but unlike them he was not much interested in the science of political economy or the principles of free trade.Footnote 77 His main interests were in history and the constitution and in this he was much more closely affiliated to aristocratic Foxites, such as Russell, with whom he was regularly allied on the question of constitutional reform.Footnote 78 He shared their view that the landowning class was best placed to govern impartially and in the interests of the nation as a whole, as were independent men (such as himself) who were ill equipped to fight popular elections. Above all, Foxite Whigs viewed themselves as particularly sensitive to popular feeling and public opinion and as trustees of the interests of the people in parliament.Footnote 79 This did not make them democrats: as natural governors, they had to use their discretion and judgement in accommodating such opinion. They did not support outdoor agitations of the sort that seemed to threaten the authority of parliament. Nonetheless, when there was a body of popular opinion apparently in favour of a particular cause, the Whigs viewed themselves as the proper guardians of that interest, against any possible abuse of authority by the crown.Footnote 80
The fluctuating fortune of the Foxite Whigs in the 1810s and 1820s was, at least in part, a reflection of the fact that the growth in the importance of public opinion was not inexorable or uniform in its development. As Wahrman has argued, it acquired different meanings and associations and had differing impacts in the early decades of the nineteenth century. It was particularly salient in the post-Napoleonic war period and at the end of the 1820s.Footnote 81 On the question of criminal law, there was no consensus at any given point and it is difficult to discern, even with hindsight, a reasoned body of opinion that assumed pre-eminence in a growing public sphere.Footnote 82 Expressions of popular interest on the question of criminal law reform were sporadic. Opinion on the subject was not only divided but, for significant periods in the 1810s and 1820s, weakly expressed. Romilly's main difficulties in his parliamentary efforts related more to the general lack of interest in his subject than to opposition from Lords Ellenborough and Eldon.Footnote 83
Public opinion was nonetheless a key feature of the political landscape in the first three decades of the nineteenth century; no politician could ignore it and many appealed to it. Even as they acknowledged its unparalleled influence, some were distrustful of it. Peel expressed substantial misgivings. He defined public opinion as ‘that great compound of folly, weakness, prejudice, wrong feeling, right feeling, obstinacy and newspaper paragraphs'.Footnote 84 He was sensitive to its influence on criminal law, but did not explicitly let it guide his legislative proposals or, indeed, his exercise of the Royal Prerogative of mercy.Footnote 85 Mackintosh, in contrast, demanded that it be accommodated: ‘There were some who thought that parliament should not be in any way swayed by public opinion: but it seemed to him that on such a question it was of peculiar value.’Footnote 86 He considered the value of it in relation to criminal law ‘widely different from its value in every other province’, so important indeed that in some instances reason should be subordinate to it. Where understanding could be deluded by sophistry, feeling could not, hence the primary importance of ‘national opinion’ or the ‘opinion of the age’.Footnote 87
In Mackintosh's clearly expressed view, public opinion underpinned the authority of the criminal law. He was very careful to define it as the ‘well-grounded persuasion of that numerous and respectable class of society’ and to distinguish it from popular clamours.Footnote 88 This association of opinion, change, and the respectable middle classes was one that Mackintosh returned to throughout his political career. In 1791, he identified the middle ranks as the primary agent of political revolution and ‘among whom almost all the sense of virtue of society reside’. This view, expressed in support of the French Revolution, had changed by 1815 when he described the middle class as ‘inert and timid and almost as little qualified to defend a throne as they are disposed to overthrow it’.Footnote 89 The advantage that England enjoyed over France in Mackintosh's view was the presence of the landed gentry in parliament to protect against any possible abuse of authority by the crown.Footnote 90
The claims made by reformers that the opinion of the respectable classes of the community was set against the capital laws cannot be taken at face value, given the fragmentary and conflicting evidence. Public opinion, as it was referred to in the political discourse, did not reflect any social consensus or majority opinion even among those classes designated respectable. It was constructed and manipulated by those who appealed to it.Footnote 91 When Mackintosh took up the Whig leadership of the cause of penal reform following Romilly's death in 1818, he immediately focused his activities on the forgery laws. Forgery executions had caused more scandal and provided more evidence of public feeling than any other aspect of the hanging laws.Footnote 92 The crime accounted for a very high number of executions in London and England.Footnote 93 Forgery also linked the issue of criminal law reform with the most pressing political issue in the post-Napoleonic war years: the question of when cash payments should be resumed. In the period 1818–21, the radical press honed in on the issues, decrying the Bank and its paper system.Footnote 94 For the Whigs, this provided an excellent opportunity to combine an attack on the Bank of England with one on the criminal laws more generally. Mackintosh took the lead in exploiting this popular agitation in the Commons. He collaborated with the extensive evangelical and Quaker networks to mobilize that constituency of respectable opinion at critical points in the penal reform debates.Footnote 95 In 1819, he secured the appointment of a highly influential select committee on the criminal laws.Footnote 96 Mackintosh chaired the committee, which included Russell, and focused on forgery because, as he explained to Lord Grenville, executions for the crime had ‘chiefly contributed to produce a general call for reformation in the penal system’.Footnote 97
This was a significant victory for Mackintosh and the Whigs in the face of government opposition. The 1819 committee excluded evidence from judges in favour of that from traders, commercial men, and other respectable members of the middling ranks. The emphasis on this commercial community evident in the report and in subsequent parliamentary debates suggests that Mackintosh had revised his opinion of the middle class again to afford them much greater prominence in effecting political change. They appeared as the constituency to which the legislature had to respond most readily on matters of criminal law. Yet this was a constituency constructed for political purposes during a time of great popular and radical unrest. Mackintosh's fears, expressed in an essay of 1820, that the bonds of society were ‘rapidly loosening’ had seemed on the verge of being realized in 1819, particularly in the aftermath of the events of ‘Peterloo’.Footnote 98 The 1819 committee and subsequent debates on the issue of penal reform took place against this backdrop of unrest. Mackintosh wanted to demonstrate that respectable commercial men supported the law and moderate reform.Footnote 99 As Wahrman notes, Mackintosh's appeal to the authority of the middle class in this period ‘originated at a given moment as a product of very specific circumstances, serving a very specific political agenda, and not as a detached observation of the impartial social scientist’.Footnote 100
The subsequent collapse of popular interest in the question of penal reform emphasizes the contingency and unstable nature of the influence of public opinion. Introducing motions on criminal law in the House of Commons in 1822 and 1823, Mackintosh remarked upon the difficulty of attracting attention to a subject that was calculated to ‘do anything other than to excite general interest’.Footnote 101 It was only in 1830, in the wake of renewed public scandal surrounding forgery and in a political context much more conducive to the Whigs' appeal to public sentiment, that his interest was reignited. The execution of the forger Joseph Hunton in 1828 and subsequent outcry had prompted the groups behind the campaigns in the period 1818–21 to recommence their efforts to mobilize opinion. The result was a petitioning effort on an unprecedented scale as far as the issue of criminal law was concerned and which bore comparison to the most pressing political issues of the day.Footnote 102
Mackintosh and the Foxite Whigs had no compunction about responding directly to such expressions of popular feeling and opinion. Mackintosh's parliamentary activities on penal reform were focused on the years 1818–21 and 1829–30, when outdoor agitation and public opinion were at their height. The political style of the Foxite Whigs was at its most effective in those periods, when they emphasized their role as trustees of the popular interest.Footnote 103 Mackintosh did not propose to replace the authority of aristocratic leaders in parliament with that of the middling ranks. His approach was bound up with an aristocratic model of governance, in which an elite continued to play a key guiding role. If the criminal justice system had been blighted by capital legislation that was out of touch with public opinion, the solution was not to remove it and apply impersonal, fixed rules. Parliament had to mitigate the law in order to realign it with public sentiment but the detailed content and mode of its application by judges could not be legislated.
IV
It follows that Mackintosh viewed the role of the legislator as being prescribed and limited by public feelings, which were ‘at once his instrument and his materials'.Footnote 104 His proposed bills and amendments were based on this principle which was in some senses limiting, in others potentially far-reaching. It was limiting in that there were many parts of the criminal law upon which very little public feeling was expressed. In these areas, Mackintosh adopted the conservative legislative theory associated with Francis Bacon.Footnote 105 Bacon argued that the problem with the statute law was ‘an excessive accumulation of laws' and that the legislature therefore had to intervene to repeal obsolete laws and, periodically, enact a digest to consolidate and clarify the law's provisions.Footnote 106 There were two key limitations on Bacon's approach: first that legislation should not produce any substantive change in legal policy and secondly that statute should not be used to transform or uproot the common law. Romilly's, Mackintosh's, and Peel's efforts to reform the law in the 1810s and 1820s were all closer to Bacon's theory of legislation than to Bentham's more radical conception.Footnote 107 They were directed at digesting and consolidating the laws rather than producing a new and complete code.
Romilly and Mackintosh departed from Bacon in their insistence that the use of the death penalty be reduced, something which demanded a change in the policy of the law. As Lieberman points out, Romilly's approach contained the potential for a more radical use of legislation because he did not look to history for guidance, but to first principles of punishment.Footnote 108 Peel also wanted to frame the laws according to his fixed view of human nature and the possible effects of punishment.Footnote 109 In contrast, Mackintosh appealed to history and to the progress of society in order to determine the need for legislation. Criticizing Bentham's approach to legislation, he argued that ‘The art of legislation consists in thus applying the principles of jurisprudence to the situation, want, interests, feelings, opinions and habits of each distinct community at any given time.’Footnote 110
This approach prompted Mackintosh to direct his legislative efforts towards the forgery laws, which had caused more public outcry and claimed more scaffold victims than almost any other. The most important and controversial bill that resulted from the 1819 Select Committee Report was the 1821 Forgery Punishment Mitigation Bill. It was directed mainly at the punishment affixed to the crime and made little change to the definition of the offence. It proposed to abolish the punishment of death for all first offences of forgery except forgeries of Bank of England notes. It did not set out any new graded system of punishment; indeed, Mackintosh sought to increase the judges' sentencing discretion to allow transportation for a minimum of three and a maximum of fourteen years.Footnote 111 The bill proposed to make the prosecution and punishment of the offence of uttering ‘no longer subject to discretion, but to positive rule’ for the reason that, anomalously, the discretion was exercised by the Bank of England. Mackintosh maintained (with no evidence) that the Bank would be ‘glad to be relieved of so painful, so invidious and so unpopular a discretion’.Footnote 112 The Bank's wide prosecutorial discretion and its perceived influence over post-trial procedures were two key causes of the opprobrium that had attached to forgery cases over the preceding few years.Footnote 113 Mackintosh's approach was therefore consistent with his general view that discretion was objectionable insofar as it attracted public antipathy. Ironically, one of the reasons the bill failed was the apparent inconsistency in retaining the death penalty for one species of offence (forgery of Bank of England notes), which opponents and some supporters argued was an unprincipled exception as other types of forgery were equally damaging.Footnote 114
The 1821 bill was lost by a narrow margin in the Commons and with it went the Whigs' political momentum on the issue.Footnote 115 The resumption of cash payments in 1821 almost immediately alleviated the problem of forged Bank of England notes, and public interest in the question faded rapidly. This, together with Peel's arrival in the Home Office, prompted Mackintosh to change tactics in the House of Commons. In 1822 and 1823, he proposed general resolutions committing the House to mitigating the law's undue rigour. The focus of the motions was on the severity of the law, but while Mackintosh delivered long and wide-ranging speeches proposing the motions, he did not propose any legislation.Footnote 116 The more pragmatic Peel objected to this general approach and then drew the sting from Mackintosh's criticism by maintaining that he planned to pursue a programme of law reform from within government. He also claimed, disingenuously, that the difference between himself and Mackintosh was ‘only as to degree’.Footnote 117 This, combined with the lack of evidence of public opinion, severely blunted the Whigs' ability to use the issue to attack the government for the remainder of the decade. For much of his period in office, the Whig opposition left Peel to pursue his programme of reform, despite the fact that it did little to mitigate the law.
This emphasizes the importance of public opinion and its manifestation out of doors to the project and prospects of success of criminal legislation in this period. On taking office in 1822, Peel recognized the momentum that had built up for law reform, but nonetheless set out to contain it in a strategy which he outlined to the prime minister:
[I]n the present spirit of the times, it was in vain to attempt to defend what is established, merely because it is established…[T]he best policy [is] to take to ourselves the credit of the reform, and that by being the author of it we should have the best chance of presenting limits to the innovation.Footnote 118
This strategy worked for much of the 1820s. Peel's legislative efforts involved a much more systematic revision of the criminal laws than that proposed by Mackintosh's committee. His achievements were far more substantial in terms of the range of offences that were reformed, but his Acts were consolidatory in effect and had only very limited mitigating effects. Peel's approach was methodical. He wanted to make the law as ‘precise and intelligible as it can be made’ so as to restrain the scope for judges and magistrates to exercise discretion.Footnote 119 He sought to introduce a more disciplined and uniform system of secondary punishments and new police. He worked closely with lawyers and judges in his efforts to legislate on theft and forgery and the chief value of the legislation that resulted lay in the rationalization of notoriously complex areas of law.Footnote 120 Offences were defined more closely and there was some attempt to regulate and control the ordinary operation of discretion in sentencing, to the point where even Bentham was willing to give Peel some credit, even if he was impatient of the slow pace and limited scope of his reforms.Footnote 121 The extent of Peel's ambitions was circumscribed by his pragmatism, but also by his commitment to the death penalty.
Mackintosh showed little appetite for sustained and detailed attention to the intricacies of legal provisions. This had been evident in Bombay where his plans to instigate reforms of the legal system came to little. It was also manifest in his approach to law reform in England where his focus was on those aspects of law that appeared likely to result in some political gain for the Whigs. After 1823, when those gains appeared unlikely to be realized and the Whigs were at a particularly low ebb, he seemed to lose interest in the subject.Footnote 122 When Mackintosh turned his attention to the forgery laws again, in 1830, the political climate generally was more conducive to high Whig politics because of the popular agitation for religious and constitutional reform. Peel's forgery bill of that year and Mackintosh's amendment clearly illustrate their different attitudes towards legislation. Where Peel's bill was detailed and systematic, Mackintosh's amendment was directed at removing the death penalty.Footnote 123 The amendment was carried in the Commons (leaving Peel privately ‘quite disgusted’), but lost in the Lords.Footnote 124 Nonetheless, Mackintosh's victory in the Commons had very considerable political value and arguably marked the point where opinion on the specific issue of capital punishment was perceived to have turned.Footnote 125
V
Mackintosh's ideological and political position does not fit easily within current explanatory frameworks for criminal law reform in the period. He wanted mild punishment, but had no objection to the operation of discretion in the criminal law unless it had manifestly alienated the public. He did not seek measures that went beyond the aim of consolidating the law unless to remove capital punishment. His view of criminal law and its organic development ran counter to the dominant mechanical ideology of the era. His professed aim of aligning public opinion with the law did not bring with it a commitment to ensuring that the law operated neutrally according to that opinion. Just as the aristocratic elite was best suited to respond to popular concern in parliament, so in the administration of criminal justice, judges and magistrates had a leading role to play in interpreting and applying the law in order to educate and to sustain virtue and national character. Mackintosh's attempts to legislate were premised on the idea that the removal of the death penalty, without more, would be enough to restore the character and authority of the laws.
This is significant for two principal reasons. First, it suggests that it is important to distinguish carefully between the death penalty and other aspects of law reform in the period. There were important differences between those designated reformers and common ground between those usually cast on opposite sides of the political debates. The clear gulf between Mackintosh and the judiciary on the question of capital punishment does not mean that they were opposed on the question of how the law should be administered. Indeed, they had much in common in their view that the law should develop incrementally, according to no fixed rules or detailed statutory prescription. This not only complicates understandings of the nature of the debates on criminal law reform, it also suggests cause to re-evaluate its outcomes. The collapse of the ‘bloody code’ in the 1830s provides unequivocal evidence that the argument against capital punishment was successful, but the extent to which a mechanical approach to law shaped legislative policy or established itself in the higher criminal courts demands more scrutiny.
Mackintosh's position in the political debates on law reform also suggests cause to disentangle Whiggism from Liberalism on this issue. Mackintosh's views may in some ways have anticipated the mid nineteenth-century liberal view of the law progressing harmoniously alongside an advancing society, but they should not be assimilated.Footnote 126 During a socially turbulent period, Mackintosh seldom looked forward with confidence to the future; he was much more likely to appeal to the wisdom of the past. His arguments were premised on the idea that there was a profound and potentially dangerous discontinuity between law, its historical roots, and the state of society. The public opinion to which he appealed was not a stable liberal consensus on the need for a proportionate and certain justice system, according to which individuals could regulate their conduct. It was a volatile mix of popular and respectable opinion. The aristocratic Foxite Whigs were those most willing to govern with those interests in view and it was to that political constituency that Mackintosh belonged. This put him at odds with the liberal Tory Home Secretary Robert Peel in the 1820s and with the more radical parts of his own party.Footnote 127
When Russell piloted the legislation that repealed England's capital laws in the 1830s, he announced his objective as being ‘to make the law in accordance with the feelings of the public at large and with the opinions of the judges who were now charged with the administration of it’. The legislation aimed to ‘meet the spirit of our law, and the humanity of the country’.Footnote 128 Russell's Acts made only a limited attempt to rationalize or transform the content of the laws. His focus on public opinion prompted him soon after his appointment as home secretary to instruct the Royal Commission on the Criminal Laws to switch focus from a complete revision and digest of the laws to capital offences. He wrote to the commissioners to express his view that it would not be expedient to wait for such a comprehensive review, before pressing ahead with his own law reform programme.Footnote 129 His scheme of legislation, which contained considerable scope for judicial discretion, particularly in sentencing, brought forth objections from those who sought to put the criminal law on a fixed footing. Peel argued in vain for a graduated scale of secondary punishments to replace the death penalty. More radical law reformers such as William Ewart and Henry Brougham objected to the extent of judicial discretion in Russell's scheme and the failure to engage in a systematic and complete overhaul of the criminal laws.Footnote 130 The legislation that repealed the ‘bloody code’ was therefore a disappointment to those who saw the world in mechanical terms. In contrast, the judges, having finally conceded the argument on capital punishment, supported Russell's measures.Footnote 131 If he had lived on, Mackintosh would surely have supported them too.
