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Law Lordsopposed it。
The same Lord Tenterden manfully said； on another occasion and
another question； that he was glad the subject of the amendment of the
laws had been taken up by Mr。 Peel； 〃who had not been bred to the law；
for those who were； were rendered dull； by habit； to many of its defects！〃
I would respectfully submit； in extension of this text； that a criminal judge
is an excellent witness against the Punishment of Death； but a bad witness
in its favour； and I will reserve this point for a few remarks in the next；
concluding； Letter。
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III
The last English Judge； I believe； who gave expression to a public
and judicial opinion in favour of the punishment of Death； is Mr。 Justice
Coleridge； who； in charging the Grand Jury at Hertford last year； took
occasion to lament the presence of serious crimes in the calendar； and to
say that he feared that they were referable to the comparative infrequency
of Capital Punishment。
It is not incompatible with the utmost deference and respect for an
authority so eminent； to say that； in this； Mr。 Justice Coleridge was not
supported by facts； but quite the reverse。 He went out of his way to
found a general assumption on certain very limited and partial grounds；
and even on those grounds was wrong。 For among the few crimes which
he instanced； murder stood prominently forth。 Now persons found guilty
of murder are more certainly and unsparingly hanged at this time； as the
Parliamentary Returns demonstrate； than such criminals ever were。 So
how can the decline of public executions affect that class of crimes？ As
to persons committing murder； and yet not found guilty of it by juries； they
escape solely because there are many public executionsnot because there
are none or few。
But when I submit that a criminal judge is an excellent witness against
Capital Punishment； but a bad witness in its favour； I do so on more broad
and general grounds than apply to this error in fact and deduction （so I
presume to consider it） on the part of the distinguished judge in question。
And they are grounds which do not apply offensively to judges； as a class；
than whom there are no authorities in England so deserving of general
respect and confidence； or so possessed of it； but which apply alike to all
men in their several degrees and pursuits。
It is certain that men contract a general liking for those things which
they have studied at great cost of time and intellect； and their proficiency
in which has led to their becoming distinguished and successful。 It is
certain that out of this feeling arises； not only that passive blindness to
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their defects of which the example given by my Lord Tenterden was
quoted in the last letter； but an active disposition to advocate and defend
them。 If it were otherwise； if it were not for this spirit of interest and
partisanship； no single pursuit could have that attraction for its votaries
which most pursuits in course of time establish。 Thus legal authorities
are usually jealous of innovations on legal principles。 Thus it is
described of the lawyer in the Introductory Discourse to the Description of
Utopia； that he said of a proposal against Capital Punishment； 〃'this could
never be so established in England but that it must needs bring the weal…
public into great jeopardy and hazard'； and as he was thus saying； he
shaked his head； and made a wry mouth； and so he held his peace〃。 Thus
the Recorder of London； in 1811； objected to 〃the capital part being taken
off〃 from the offence of picking pockets。 Thus the Lord Chancellor； in
1813； objected to the removal of the penalty of death from the offence of
stealing to the amount of five shillings from a shop。 Thus； Lord
Ellenborough； in 1820； anticipated the worst effects from there being no
punishment of death for stealing five shillings worth of wet linen from a
bleaching ground。 Thus the Solicitor General； in 1830； advocated the
punishment of death for forgery； and 〃the satisfaction of thinking〃 in the
teeth of mountains of evidence from bankers and other injured parties （one
thousand bankers alone！） 〃that he was deterring persons from the
commission of crime； by the severity of the law〃。 Thus； Mr。 Justice
Coleridge delivered his charge at Hertford in 1845。 Thus there were in
the criminal code of England； in 1790； one hundred and sixty crimes
punishable with death。 Thus the lawyer has said； again and again； in his
generation； that any change in such a state of things 〃must needs bring the
weal…public into jeopardy and hazard〃。 And thus he has； all through the
dismal history； 〃shaked his head； and made a wry mouth； and held his
peace〃。 Excepta glorious exception！when such lawyers as Bacon；
More； Blackstone； Romilly； andlet us ever gratefully rememberin later
times Mr。 Basil Montagu； have striven； each in his day； within the utmost
limits of the endurance of the mistaken feeling of the people or the
legislature of the time； to champion and maintain the truth。
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There is another and a stronger reason still； why a criminal judge is a
bad witness in favour of the punishment of Death。 He is a chief actor in
the terrible drama of a trial； where the life or death of a fellow creature is
at issue。 No one who has seen such a trial can fail to know； or can ever
forget； its intense interest。 I care not how painful this interest is to the
good； wise judge upon the bench。 I admit its painful nature； and the
judge's goodness and wisdom to the fullest extentbut I submit that his
prominent share in the excitement of such a trial； and the dread mystery
involved； has a tendency to bewilder and confuse the judge upon the
general subject of that penalty。 I know the solemn pause before the
verdict； the