William Eden and leniency in punishment

History of Political Thought

Volumn 22, Issue 1, 2001, Pages 105-130

  Draper, Anthony J ^a  

^a UNIVERSITY COLLEGE LONDON   (United Kingdom)

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References (151)

1. William Eden (1744-1814) was a twenty-seven-year-old barrister of the Middle Temple when his Principles of Penal Law was published (London, 1771 (not 1772 as stated in the Dictionary of National Biography)). As Baron Auckland he was created an Irish peer in 1789, and raised to the peerage of Great Britain on 22 May 1793 as Lord Auckland of West Auckland, Durham.
2. Sir Leon Radzinowicz's interpretation of Eden's Principles, in A History of English Criminal Law and its Administration from 1750 (5 vols., London, 1948-86), Vol. I, chs. 10 and 11, has been particularly influential in this respect.
3. See E. O'Brien, The Foundation of Australia (1786-1800): A Study in English Criminal Practice and Penal Colonization in the Eighteenth Century (London, 1937), p. 102.
4. Sir William Holdsworth portrayed Eden's work as a 'pioneer treatise', a 'remarkable precursor of that new era of agitation for the reform of the law'. See W. Holdsworth, A History of English Law (12 vols., London, 1923-38), Vol. XII, pp. 364-5. Radzinowicz has also described it as 'the first attempt critically to examine the structure and principles of English criminal law and to evolve a comprehensive plan for its reform', English Criminal Law, Vol. I, p. 301.
5. Sir William Holdsworth portrayed Eden's work as a 'pioneer treatise', a 'remarkable precursor of that new era of agitation for the reform of the law'. See W. Holdsworth, A History of English Law (12 vols., London, 1923-38), Vol. XII, pp. 364-5. Radzinowicz has also described it as 'the first attempt critically to examine the structure and principles of English criminal law and to evolve a comprehensive plan for its reform', English Criminal Law, Vol. I, p. 301.
6. For more recent studies on Eden see D. Lieberman, The Province of Legislation Determined (Cambridge, 1989), p. 204; M. Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750-1850 (New York, 1978), p. 47; J. Semple, Bentham's Prison: A Study of the Panopticon Penitentiary (Oxford, 1993), Ch. 3; and, for the best analysis, see G.C. Bolton, 'William Eden and the Convicts, 1771-1787', The Australian Journal of Politics and History, XXVI (1980), pp. 30-44. Many thanks are due to Simon Devereaux for supplying, in advance of publication, a copy of his excellent study, 'The Making of the Penitentiary Act 1775-1779', Historical Journal, XLII (1999), pp. 405-33. Despite revealing a number of valuable aspects central to Eden's thought none of the above has considered the value of his distinctive emphasis on leniency as a promoter of public virtue.
7. For more recent studies on Eden see D. Lieberman, The Province of Legislation Determined (Cambridge, 1989), p. 204; M. Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750-1850 (New York, 1978), p. 47; J. Semple, Bentham's Prison: A Study of the Panopticon Penitentiary (Oxford, 1993), Ch. 3; and, for the best analysis, see G.C. Bolton, 'William Eden and the Convicts, 1771-1787', The Australian Journal of Politics and History, XXVI (1980), pp. 30-44. Many thanks are due to Simon Devereaux for supplying, in advance of publication, a copy of his excellent study, 'The Making of the Penitentiary Act 1775-1779', Historical Journal, XLII (1999), pp. 405-33. Despite revealing a number of valuable aspects central to Eden's thought none of the above has considered the value of his distinctive emphasis on leniency as a promoter of public virtue.
8. For more recent studies on Eden see D. Lieberman, The Province of Legislation Determined (Cambridge, 1989), p. 204; M. Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750-1850 (New York, 1978), p. 47; J. Semple, Bentham's Prison: A Study of the Panopticon Penitentiary (Oxford, 1993), Ch. 3; and, for the best analysis, see G.C. Bolton, 'William Eden and the Convicts, 1771-1787', The Australian Journal of Politics and History, XXVI (1980), pp. 30-44. Many thanks are due to Simon Devereaux for supplying, in advance of publication, a copy of his excellent study, 'The Making of the Penitentiary Act 1775-1779', Historical Journal, XLII (1999), pp. 405-33. Despite revealing a number of valuable aspects central to Eden's thought none of the above has considered the value of his distinctive emphasis on leniency as a promoter of public virtue.
9. For more recent studies on Eden see D. Lieberman, The Province of Legislation Determined (Cambridge, 1989), p. 204; M. Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750-1850 (New York, 1978), p. 47; J. Semple, Bentham's Prison: A Study of the Panopticon Penitentiary (Oxford, 1993), Ch. 3; and, for the best analysis, see G.C. Bolton, 'William Eden and the Convicts, 1771-1787', The Australian Journal of Politics and History, XXVI (1980), pp. 30-44. Many thanks are due to Simon Devereaux for supplying, in advance of publication, a copy of his excellent study, 'The Making of the Penitentiary Act 1775-1779', Historical Journal, XLII (1999), pp. 405-33. Despite revealing a number of valuable aspects central to Eden's thought none of the above has considered the value of his distinctive emphasis on leniency as a promoter of public virtue.
10. For more recent studies on Eden see D. Lieberman, The Province of Legislation Determined (Cambridge, 1989), p. 204; M. Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750-1850 (New York, 1978), p. 47; J. Semple, Bentham's Prison: A Study of the Panopticon Penitentiary (Oxford, 1993), Ch. 3; and, for the best analysis, see G.C. Bolton, 'William Eden and the Convicts, 1771-1787', The Australian Journal of Politics and History, XXVI (1980), pp. 30-44. Many thanks are due to Simon Devereaux for supplying, in advance of publication, a copy of his excellent study, 'The Making of the Penitentiary Act 1775-1779', Historical Journal, XLII (1999), pp. 405-33. Despite revealing a number of valuable aspects central to Eden's thought none of the above has considered the value of his distinctive emphasis on leniency as a promoter of public virtue.
11. Bolton has identified citings for over three dozen ancient, medieval and modern authors in Eden's footnotes. See Bolton, 'Eden and the Convicts', p. 32.
12. Cesare Beccaria Bonesara, Dei delitti e delle pene (Leghorn, false imprint Haarlem, 1764). The translation cited henceforth is On Crimes and Punishments and Other Writings, ed. R. Bellamy, trans. R. Davies (Cambridge, 1995).
13. W. Blackstone, Commentaries on the Laws of England (4 vols., Oxford, 1765-9). References henceforth are to the fourth edition of 1770.
14. Following the London publication of Principles of Penal Law in 1771, a second edition appeared later the same year to which emendations and additions were made. A third edition appeared in Dublin in 1772, and a fourth in London in 1775. All following references are to the first edition unless a date is provided.
15. In 1772 Eden was appointed Under-Secretary of State in the Northern Department under Lord Suffolk, with whom he became a firm favourite. See History of Parliament: The House of Commons 1754-1790, ed. L. Namier and J. Brooke (London, 1964), Vol. II.
16. Morellet produced a substantially rearranged French translation of Beccaria's Dei delitti e delle pene in 1766, which subsequently became the standard. An English edition, using both the Italian original and Morellet's version, was published in 1767.
17. London Magazine, or Gentleman's Monthly Intelligencer, XL (May 1771), p. 271. Eden's book was first reviewed in May, and the chapter 'On Duelling' was reproduced. A further chapter, 'On Crimes of Positive Institution' followed in June, pp. 298-9; and in July another article appeared titled 'An Essay on Rewards and Punishments', pp. 346-8.
18. London Magazine, or Gentleman's Monthly Intelligencer, XL (May 1771), p. 271. Eden's book was first reviewed in May, and the chapter 'On Duelling' was reproduced. A further chapter, 'On Crimes of Positive Institution' followed in June, pp. 298-9; and in July another article appeared titled 'An Essay on Rewards and Punishments', pp. 346-8.
19. London Magazine, or Gentleman's Monthly Intelligencer, XL (May 1771), p. 271. Eden's book was first reviewed in May, and the chapter 'On Duelling' was reproduced. A further chapter, 'On Crimes of Positive Institution' followed in June, pp. 298-9; and in July another article appeared titled 'An Essay on Rewards and Punishments', pp. 346-8.
20. For this debate see: Scots Magazine, XXXIII (June 1771), pp. 305 ff, and XXXIV (January 1772), pp. 11-16; Monthly Review, XLIV (1771), pp. 444 ff; London Magazine, XLI (January 1772), pp. 25 ff; Critical Review, XXXII (November 1771), pp. 321-9.
21. For this debate see: Scots Magazine, XXXIII (June 1771), pp. 305 ff, and XXXIV (January 1772), pp. 11-16; Monthly Review, XLIV (1771), pp. 444 ff; London Magazine, XLI (January 1772), pp. 25 ff; Critical Review, XXXII (November 1771), pp. 321-9.
22. For this debate see: Scots Magazine, XXXIII (June 1771), pp. 305 ff, and XXXIV (January 1772), pp. 11-16; Monthly Review, XLIV (1771), pp. 444 ff; London Magazine, XLI (January 1772), pp. 25 ff; Critical Review, XXXII (November 1771), pp. 321-9.
23. For this debate see: Scots Magazine, XXXIII (June 1771), pp. 305 ff, and XXXIV (January 1772), pp. 11-16; Monthly Review, XLIV (1771), pp. 444 ff; London Magazine, XLI (January 1772), pp. 25 ff; Critical Review, XXXII (November 1771), pp. 321-9.
24. For this debate see: Scots Magazine, XXXIII (June 1771), pp. 305 ff, and XXXIV (January 1772), pp. 11-16; Monthly Review, XLIV (1771), pp. 444 ff; London Magazine, XLI (January 1772), pp. 25 ff; Critical Review, XXXII (November 1771), pp. 321-9.
25. Eden's work had less success on the continent. No French translation has been found, although the Principles of Penal Law was certainly used by Brissot in his Bibliotheque Philosophique du Législateur (Berlin, 1782). Eden's friend, the Lord Chancellor Alexander Wedderburn, also wrote that Princess Dashkoff, a close acquaintance of the Empress Catherine of Russia, had asked for a copy of the Principles when they met in Brussels. See British Library, Add. MSS 45730, fol. 4 (15 October 1771).
26. On the patchwork of English judicial responsibilities see D. Hay, 'Property, Authority and the Criminal Law', in Albion's Fatal Tree, Crime and Society in Eighteenth-Century England, ed. D. Hay, et al. (London, 1975).
27. Eden's similar demands for the repeal of many property offences, such as machine-breaking, the firing of crops and haystacks and shooting persons without ensuing bodily harm of any sort, have been seen as examples of Eden working against his class and seeking to ease social control. See Bolton, 'Eden and the Convicts', p. 33.
28. Eden sought to 'promote just ideas of the Constitution & Government under which we live', and believed support for frequent, severe punishments was incompatible with this stance. See British Library, Add. MSS 34412, fol. 164, Eden to George III. (The date given, 1772, is incorrect since Eden mentions sending the King a book on law some years earlier. It is likely that the volume sent with this letter was his Four Letters to the Earl of Carlisle (London, 1779), which is closer to his description of the work as a 'Book of Polities'.) On 'just' punishments compare Beccaria, On Crimes and Punishments, p. 10. See also Charles Louis de Secondat, Baron de Montesquieu, De l'esprit des lois (2 vols., Geneva, 1748), trans. A. Cohler, et al., The Spirit of the Laws (Cambridge, 1989), pp. 91-2.
29. Eden sought to 'promote just ideas of the Constitution & Government under which we live', and believed support for frequent, severe punishments was incompatible with this stance. See British Library, Add. MSS 34412, fol. 164, Eden to George III. (The date given, 1772, is incorrect since Eden mentions sending the King a book on law some years earlier. It is likely that the volume sent with this letter was his Four Letters to the Earl of Carlisle (London, 1779), which is closer to his description of the work as a 'Book of Polities'.) On 'just' punishments compare Beccaria, On Crimes and Punishments, p. 10. See also Charles Louis de Secondat, Baron de Montesquieu, De l'esprit des lois (2 vols., Geneva, 1748), trans. A. Cohler, et al., The Spirit of the Laws (Cambridge, 1989), pp. 91-2.
30. Eden sought to 'promote just ideas of the Constitution & Government under which we live', and believed support for frequent, severe punishments was incompatible with this stance. See British Library, Add. MSS 34412, fol. 164, Eden to George III. (The date given, 1772, is incorrect since Eden mentions sending the King a book on law some years earlier. It is likely that the volume sent with this letter was his Four Letters to the Earl of Carlisle (London, 1779), which is closer to his description of the work as a 'Book of Polities'.) On 'just' punishments compare Beccaria, On Crimes and Punishments, p. 10. See also Charles Louis de Secondat, Baron de Montesquieu, De l'esprit des lois (2 vols., Geneva, 1748), trans. A. Cohler, et al., The Spirit of the Laws (Cambridge, 1989), pp. 91-2.
31. Eden, Principles, pp. 1-3.
32. On the progress of utilitarianism and its famous motto, 'the greatest happiness of the greatest number', see R. Shackleton, 'The Greatest Happiness of the Greatest Number: The History of Bentham's Phrase', Studies on Voltaire and the Eighteenth Century, XC (1972), pp. 1461-82.
33. See Eden, Principles, p. 13, for the 'rights of human nature', and p. 279 for positive laws being independent of 'general obligations of morality'.
34. See Eden, Principles, p. 283, where he talks of the 'good of All being the great object of All' in distinctly Rousseauean terms. One also finds Eden mentioning a 'Lawgiver' in the sense provided by Rousseau. See pp. 6 and 284.
35. Ibid., p. 283.
36. From the outset Eden is anxious to establish the 'natural and most inalienable rights of humanity' on the principles of reason and benevolence, British Library, Add. MSS 34412, fol. 165.
37. Eden, Principles, p. 284.
38. Many thanks to Colin Tyler for assistance provided in our several discussions of Eden's competing political 'goods'.
39. Eden, Principles, p. 284.
40. Ibid
41. Ibid
42. Ibid., p. 281.
43. 'If the proof be doubtful, let the wretch be left, if guilty, to be his own punisher; to the censure of that internal tribunal, whose judgment is incapable of corruption, and whose terrors cannot be evaded by cunning, or collusion.' Ibid.
44. Ibid. Eden's emphasis.
45. See J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, 1975); and J.G.A. Pocock, Virtue, Commerce and History (Cambridge, 1985).
46. See J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, 1975); and J.G.A. Pocock, Virtue, Commerce and History (Cambridge, 1985).
47. See Pocock, 'The Eighteenth-Century Debate: Virtue, Passion and Commerce', in The Machiavellian Moment, pp. 462-505; and Pocock, 'Virtue, Rights and Manners', in Virtue, Commerce and History, pp. 48-50. Compare, R.B. Sher, 'From Troglodytes to Americans: Montesquieu and the Scottish Enlightenment on Liberty, Virtue, and Commerce', in Republicanism, Liberty, and Commercial Society, 1649-1776, ed. D. Wooton (Stanford, 1994).
48. See Pocock, 'The Eighteenth-Century Debate: Virtue, Passion and Commerce', in The Machiavellian Moment, pp. 462-505; and Pocock, 'Virtue, Rights and Manners', in Virtue, Commerce and History, pp. 48-50. Compare, R.B. Sher, 'From Troglodytes to Americans: Montesquieu and the Scottish Enlightenment on Liberty, Virtue, and Commerce', in Republicanism, Liberty, and Commercial Society, 1649-1776, ed. D. Wooton (Stanford, 1994).
49. See Pocock, 'The Eighteenth-Century Debate: Virtue, Passion and Commerce', in The Machiavellian Moment, pp. 462-505; and Pocock, 'Virtue, Rights and Manners', in Virtue, Commerce and History, pp. 48-50. Compare, R.B. Sher, 'From Troglodytes to Americans: Montesquieu and the Scottish Enlightenment on Liberty, Virtue, and Commerce', in Republicanism, Liberty, and Commercial Society, 1649-1776, ed. D. Wooton (Stanford, 1994).
50. For Eden's lack of enthusiasm for commercialism see Journals and Correspondence of William, Lord Auckland, ed. his son, Bishop of Bath and Wells (4 vols., London, 1862), p. 64; and Bolton, 'Eden and the Convicts', p. 42. Adam Smith did not think highly of Eden as an economist, describing him as 'but a man of detail'. See Sir James Mackintosh, Miscellaneous Works (3 vols., London, 1846), Vol. III, p. 17 n.
51. For Eden's lack of enthusiasm for commercialism see Journals and Correspondence of William, Lord Auckland, ed. his son, Bishop of Bath and Wells (4 vols., London, 1862), p. 64; and Bolton, 'Eden and the Convicts', p. 42. Adam Smith did not think highly of Eden as an economist, describing him as 'but a man of detail'. See Sir James Mackintosh, Miscellaneous Works (3 vols., London, 1846), Vol. III, p. 17 n.
52. For Eden's lack of enthusiasm for commercialism see Journals and Correspondence of William, Lord Auckland, ed. his son, Bishop of Bath and Wells (4 vols., London, 1862), p. 64; and Bolton, 'Eden and the Convicts', p. 42. Adam Smith did not think highly of Eden as an economist, describing him as 'but a man of detail'. See Sir James Mackintosh, Miscellaneous Works (3 vols., London, 1846), Vol. III, p. 17 n.
53. See Eden, Principles, pp. 266-7.
54. Ibid., p. 5.
55. Ibid., p. 97.
56. See James Macdonald to Eden: '. . . at present I have put myself under the management of David Hume, the most gallant man in France, & expect to reap true benefit from his instructions'. To Eden from Macdonald of Sleat at Fontainebleau, 13 October 1764, British Library, Add. MSS 34412, fol. 80. Hume had been in Paris since 1763 as Secretary to the Ambassador.
57. The Letters of David Hume, ed. J.Y.T. Grieg (2 vols., Oxford, 1932), Vol. II, pp. 247-8; Hume to William Strahan, 19 August 1771. Hume was eager to know the name of the author.
58. The Letters of David Hume, ed. J.Y.T. Grieg (2 vols., Oxford, 1932), Vol. II, pp. 247-8; Hume to William Strahan, 19 August 1771. Hume was eager to know the name of the author.
59. A. Wesley Cragg, 'Hume on Punishment', Law and Enlightenment in Britain, ed. T.D. Campbell (Aberdeen, 1990), p. 67.
60. Ibid., p. 58.
61. Eden, Principles, p. 284.
62. Cragg, 'Hume on Punishment', p. 68.
63. Eden, Principles, p. 135.
64. On lexical ordering see J. Rawls, A Theory of Justice (Oxford, 1986), pp. 42 ff.
65. Blackstone, Commentaries, pp. 17-18.
66. Ibid
67. Ibid
68. See Principles (1775), p. 13; added as §5 in the fourth edition.
69. Ibid
70. Eden, Principles, p. 13. Compare Beccaria, On Crimes and Punishments, p. 63.
71. Eden, Principles, p. 13. Compare Beccaria, On Crimes and Punishments, p. 63.
72. On the emphasis of 'prevention' over 'deterrence' in Eden, see Principles, pp. 6-7, where he states, first, that 'the prevention of crimes should be the great object', and follows this with the notion that 'it is the end then of penal laws to deter, not to punish'.
73. On Eden's rejection of the pursuit of happiness as a valid goal, see Principles, p. 97.
74. Eden, Principles, p. 6.
75. Ibid., p. 65.
76. Eden occasionally seemed inclined to support Beccaria's idea of a fixed 'scale' of offences, but ultimately concluded that the complexities of each case would prevent the precision that Beccaria's formulation implied. See Principles, pp. 10 and 79. Compare, On Crimes and Punishments, p. 19. On Eden's acceptance of the need for continued judicial discretion in sentencing, see Principles, p. 64.
77. Eden occasionally seemed inclined to support Beccaria's idea of a fixed 'scale' of offences, but ultimately concluded that the complexities of each case would prevent the precision that Beccaria's formulation implied. See Principles, pp. 10 and 79. Compare, On Crimes and Punishments, p. 19. On Eden's acceptance of the need for continued judicial discretion in sentencing, see Principles, p. 64.
78. Eden occasionally seemed inclined to support Beccaria's idea of a fixed 'scale' of offences, but ultimately concluded that the complexities of each case would prevent the precision that Beccaria's formulation implied. See Principles, pp. 10 and 79. Compare, On Crimes and Punishments, p. 19. On Eden's acceptance of the need for continued judicial discretion in sentencing, see Principles, p. 64.
79. Eden was a conservative Whig who turned Pittite Tory in 1785.
80. Eden, Principles, p. 2. Eden later described the English class system, however, as 'that wise institution of our Ancestors', which protects and guarantees the good behaviour of all individuals (ibid., p. 67).
81. Eden, Principles, p. 2. Eden later described the English class system, however, as 'that wise institution of our Ancestors', which protects and guarantees the good behaviour of all individuals (ibid., p. 67).
82. At the beginning of his treatise Eden stated, 'civil liberty is the aggregate of those portions of natural liberty, which are given up by the constituent members of society' (ibid., p. 2). Also, in a pamphlet written while Chief Secretary to the Irish viceroy, he said that a 'portion of his native liberty should be surrendered by each individual, for the advantage of the whole', Considerations Submitted to the People of Ireland (Dublin, 1781), p. 9. Eden found this view prominent in Beccaria. See On Crimes and Punishments, pp. 10-11.
83. At the beginning of his treatise Eden stated, 'civil liberty is the aggregate of those portions of natural liberty, which are given up by the constituent members of society' (ibid., p. 2). Also, in a pamphlet written while Chief Secretary to the Irish viceroy, he said that a 'portion of his native liberty should be surrendered by each individual, for the advantage of the whole', Considerations Submitted to the People of Ireland (Dublin, 1781), p. 9. Eden found this view prominent in Beccaria. See On Crimes and Punishments, pp. 10-11.
84. At the beginning of his treatise Eden stated, 'civil liberty is the aggregate of those portions of natural liberty, which are given up by the constituent members of society' (ibid., p. 2). Also, in a pamphlet written while Chief Secretary to the Irish viceroy, he said that a 'portion of his native liberty should be surrendered by each individual, for the advantage of the whole', Considerations Submitted to the People of Ireland (Dublin, 1781), p. 9. Eden found this view prominent in Beccaria. See On Crimes and Punishments, pp. 10-11.
85. Eden, Principles, p. 7. Perhaps Eden's social concern was influenced by the interests of his nephew, Sir Frederick Morton Eden, who produced an important work on the Poor Law in The State of the Poor . . . (3 vols., London, 1797).
86. Eden, Principles, p. 7. Perhaps Eden's social concern was influenced by the interests of his nephew, Sir Frederick Morton Eden, who produced an important work on the Poor Law in The State of the Poor . . . (3 vols., London, 1797).
87. Eden was particularly anxious that temporary or emergency legislation should not generally become permanent. See Eden, Principles, pp. 11-13. For his position within the debate, see Lieberman, Province of Legislation, p. 201, and Radzinowicz, English Criminal Law, pp. 18, 305 and 310. On Eden's argument that all positive law was, in some sense, temporary see Principles, p. 279.
88. Eden was particularly anxious that temporary or emergency legislation should not generally become permanent. See Eden, Principles, pp. 11-13. For his position within the debate, see Lieberman, Province of Legislation, p. 201, and Radzinowicz, English Criminal Law, pp. 18, 305 and 310. On Eden's argument that all positive law was, in some sense, temporary see Principles, p. 279.
89. Eden was particularly anxious that temporary or emergency legislation should not generally become permanent. See Eden, Principles, pp. 11-13. For his position within the debate, see Lieberman, Province of Legislation, p. 201, and Radzinowicz, English Criminal Law, pp. 18, 305 and 310. On Eden's argument that all positive law was, in some sense, temporary see Principles, p. 279.
90. Eden was particularly anxious that temporary or emergency legislation should not generally become permanent. See Eden, Principles, pp. 11-13. For his position within the debate, see Lieberman, Province of Legislation, p. 201, and Radzinowicz, English Criminal Law, pp. 18, 305 and 310. On Eden's argument that all positive law was, in some sense, temporary see Principles, p. 279.
91. See F. Rosen, 'Utilitarianism and the Reform of the Criminal Law', Cambridge History of Eighteenth-Century Political Thought, ed. R. Wokler and M. Goldie (Cambridge, forthcoming).
92. See Radzinowicz's portrayal of Romilly's attack on the harsh and excessive exercise of authority embodied in widespread capital sentences in Radzinowicz, English Criminal Law, p. 331.
93. Eden, Principles, p. 7.
94. Ibid., p. 5.
95. 66 Ibid.
96. Radzinowicz, English Criminal Law, p. 303.
97. Eden, Principles, p. 11. In the final edition of the Principles of Penal Law Eden developed this idea, saying, 'when the rights of human nature arc not respected, those of the citizen are gradually disregarded. Those areas are in history found fatal to Liberty, in which cruel punishments predominate.' See Eden, Principles (1775), p. 13.
98. Eden, Principles, p. 11. In the final edition of the Principles of Penal Law Eden developed this idea, saying, 'when the rights of human nature arc not respected, those of the citizen are gradually disregarded. Those areas are in history found fatal to Liberty, in which cruel punishments predominate.' See Eden, Principles (1775), p. 13.
99. Eden, Principles, p. 11. In the final edition of the Principles of Penal Law Eden developed this idea, saying, 'when the rights of human nature arc not respected, those of the citizen are gradually disregarded. Those areas are in history found fatal to Liberty, in which cruel punishments predominate.' See Eden, Principles (1775), p. 13.
100. Eden, Principles, p. 6.
101. The Reverend Martin Madan (1726-90), Calvinist minister and previously barrister and magistrate, published Thoughts on Executive Justice (1785), in which he called for the certain execution of all capital sentences on the grounds that only the absolute knowledge that death would be applied would deter potential offenders. Archdeacon William Paley (1743-1805) also promoted a wholly deterrent theory in his Principles of Moral and Political Philosophy (1785), but argued that only the worst examples of each kind of offence needed to be punished with the maximum severity allowed by law.
102. Blackstone, Commentaries, IV, p. 16.
103. Eden, Principles, p. 7.
104. Ibid., p. 8.
105. Ibid.
106. Ibid. Montesquieu, Spirit of the Laws, Bk. XII, ch. 4. Montesquieu's emphasis is clearly on analogy, though Eden takes this to be fundamental to proportion too.
107. Eden, Principles, p. 10.
108. This appears to reflect the continued influence of Locke who provided a retributive justification for punishment, but such that even in the state of nature it was limited, and an individual could 'only . . . retribute to him, so far as calm reason and conscience dictates, what is proportionate to the Transgression, which is so much as may serve for Reparation and Restraint. 'The Second Treatise of Government', §8, in J. Locke, Two Treatises of Government, ed. P. Laslett (Cambridge, 1988), p. 272.
109. Eden, Principles, p. 6.
110. See Eden, Principles, pp. 10-13; Blackstone, Commentaries, IV, p. 16; and Cicero, 'The Second Speech Against Gains Verres', Verrine Orations (London, 1928), II, 1, 14, §39. Blackstone quoted Cicero to show that a servant who kills his master should be punished more severely than if he killed a stranger, because he had greater opportunity and the master could not protect himself against it. Eden showed that Blackstone ignored the context of the discussion. Cicero's point was that the crime should be punished more severely because there was an additional abuse of domestic confidence, not because the servant had frequent opportunity.
111. See Eden, Principles, pp. 10-13; Blackstone, Commentaries, IV, p. 16; and Cicero, 'The Second Speech Against Gains Verres', Verrine Orations (London, 1928), II, 1, 14, §39. Blackstone quoted Cicero to show that a servant who kills his master should be punished more severely than if he killed a stranger, because he had greater opportunity and the master could not protect himself against it. Eden showed that Blackstone ignored the context of the discussion. Cicero's point was that the crime should be punished more severely because there was an additional abuse of domestic confidence, not because the servant had frequent opportunity.
112. See Eden, Principles, pp. 10-13; Blackstone, Commentaries, IV, p. 16; and Cicero, 'The Second Speech Against Gains Verres', Verrine Orations (London, 1928), II, 1, 14, §39. Blackstone quoted Cicero to show that a servant who kills his master should be punished more severely than if he killed a stranger, because he had greater opportunity and the master could not protect himself against it. Eden showed that Blackstone ignored the context of the discussion. Cicero's point was that the crime should be punished more severely because there was an additional abuse of domestic confidence, not because the servant had frequent opportunity.
113. Blackstone, Commentaries, IV, pp. 3 and 17.
114. Whilst popular commentators such as 'Philanthropos' similarly attacked the excessive use of the death penalty, they failed to adopt Beccaria's alternative of leniency as Eden did. See London Magazine, XXXIX (September 1770), pp. 446-9.
115. Eden, Principles, p. 25. Eden stressed that capital punishment had to be considered 'as the most solemn and affecting scene, that can be exhibited'. See ibid., pp. 21-7 and 300.
116. Eden, Principles, p. 25. Eden stressed that capital punishment had to be considered 'as the most solemn and affecting scene, that can be exhibited'. See ibid., pp. 21-7 and 300.
117. Eden, Principles (1775), p. 3.
118. See Beattie, Crime and the Courts, pp. 552-4. Beattie also argues that discussion of the reformatory potential of imprisonment with hard labour stretched back, in some respects, right through the century. See ibid., pp. 548-50.
119. See Beattie, Crime and the Courts, pp. 552-4. Beattie also argues that discussion of the reformatory potential of imprisonment with hard labour stretched back, in some respects, right through the century. See ibid., pp. 548-50.
120. One of the earliest works seeking this type of religious, penitential reform was the Reverend Samuel Denne's A letter to Sir Robert Ladbroke, Knt, Senior Alderman, And One of the Representatives of the City of London (London, 1771), which claimed that criminals may find repentance and reform if subjected to solitary confinement. Jonas Hanway's Solitude in Imprisonment, with proper profitable Labour and a spare Diet . . . (London, 1776) was also influential, but of greatest significance was John Howard's The State of the Prisons in England and Wales . . . (Warrington, 1777).
121. Beattie, Crime and the Courts, p. 568.
122. One who has noted this position is Beattie, who cites Eden's interest in the use of imprisonment with hard labour for minor offenders. See Beattie, Crime and the Courts, p. 557.
123. See, for example, British Library, Add. MSS 34412, fol. 198, An Account of the Proceedings of the Governors of St. George's Hospital near Hyde-Park-Corner, from its First Institution, the 19th of October 1733, to the 30th of December 1772 (London, 1773) and ibid., fol. 375, Réglement Pour la Maison de force de Gand, du 19. Juillet 1775, additionnel à celui du 18. Février 1773 (Ghent, 1775).
124. Appointed June 1772. Coincidentally, David Hume also held the office of Under-Secretary of State, Northern Department, 1767-9. See D. Miller, Hume's Political Thought (Oxford, 1981), p. 4.
125. Secondary punishment being any prescribed non-capital punishment regardless of whether the offender is actually put at risk of death. Other frequently used secondary punishments included whipping, fining and branding. See Beattie, Crimes and the Courts, pp. 450-554.
126. See Bolton, 'Eden and the Convicts', pp. 36-7; and Eden to Recorder of London, State Papers, 44/91 (29 November 1775).
127. See Bolton, 'Eden and the Convicts', pp. 36-7; and Eden to Recorder of London, State Papers, 44/91 (29 November 1775).
128. Eden to North, British Library, Add. MSS 34413 fols. 11-12. Eden drew up this memorandum on behalf of Lord Suffolk, who was unable to reach London because of severe winter weather. See Journals and Correspondence, II, p. 11.
129. The bill became law as 16 Geo. III, c. 43. See comment in Annual Register, 1776, pp. 163-4. Eden was greatly assisted in his efforts by gaining the temporary support of Edmund Burke, an Opposition MP. Burke was on good terms with Eden and, although preferring transportation, said of Eden's scheme, 'it is indeed an happy exchange, if there be no other, for the Butchery which we call justice'. See The Correspondence of Edmund Burke 1774-1778, ed. G.H. Guttridge (Cambridge, 1961), III, pp. 251-3 (17 March 1776). Sir John Fielding wrote to Eden in 1776, expressing the concerns of many who opposed the bill and urging the return of transportation for the worst offenders: 'I begin to fear that collecting the Rogues of different counties into one Ship [on the Thames] may instead of begetting Reformation occasion Friendships and Connexions which would be cemented by their fellow-sufferings and make them unite when discharged', British Library, Add. MSS 34413, fol. 20, 1776 (probably December).
130. The bill became law as 16 Geo. III, c. 43. See comment in Annual Register, 1776, pp. 163-4. Eden was greatly assisted in his efforts by gaining the temporary support of Edmund Burke, an Opposition MP. Burke was on good terms with Eden and, although preferring transportation, said of Eden's scheme, 'it is indeed an happy exchange, if there be no other, for the Butchery which we call justice'. See The Correspondence of Edmund Burke 1774-1778, ed. G.H. Guttridge (Cambridge, 1961), III, pp. 251-3 (17 March 1776). Sir John Fielding wrote to Eden in 1776, expressing the concerns of many who opposed the bill and urging the return of transportation for the worst offenders: 'I begin to fear that collecting the Rogues of different counties into one Ship [on the Thames] may instead of begetting Reformation occasion Friendships and Connexions which would be cemented by their fellow-sufferings and make them unite when discharged', British Library, Add. MSS 34413, fol. 20, 1776 (probably December).
131. Beattie, Crime and the Courts, p. 566. The text of the bill is in the Catalogue of Papers printed by order of the House of Commons, Parliamentary Papers, 1731-1800, IX, pp. 286-7.
132. Beattie, Crime and the Courts, p. 566. The text of the bill is in the Catalogue of Papers printed by order of the House of Commons, Parliamentary Papers, 1731-1800, IX, pp. 286-7.
133. Eden, Principles, p. 44. Here Eden indicates the high value assigned to the public observation of punishment.
134. Both methods had a long history in English penal practice and were immediate, cheap and popular alternatives. See Beattie, Crime and the Courts, pp. 456-68, where he concludes, 'in property crimes convicted offenders were being imprisoned or transported by the end of the eighteenth century, when they would have been branded or whipped and released a hundred years earlier'.
135. Hume also showed considerable interest in the increased use of fines as an alternative to physical inflictions of pain. This position certainly coincided with Eden's suggestion that fining was, ideally, the best form of punishment. Both Hume and Eden discussed fining at length, and both referred to Anglo-Saxon England, where most punishments had taken the form of fines. See D. Hume, The History of England, from the Invasion of Julius Caesar to the Revolution in 1688 (6 vols., London, 1762), I, ch. 1, pp. 136-40. Compare Eden, Principles, pp. 60-3.
136. Hume also showed considerable interest in the increased use of fines as an alternative to physical inflictions of pain. This position certainly coincided with Eden's suggestion that fining was, ideally, the best form of punishment. Both Hume and Eden discussed fining at length, and both referred to Anglo-Saxon England, where most punishments had taken the form of fines. See D. Hume, The History of England, from the Invasion of Julius Caesar to the Revolution in 1688 (6 vols., London, 1762), I, ch. 1, pp. 136-40. Compare Eden, Principles, pp. 60-3.
137. It must be remembered that a great number of those transported had been sentenced to death and had their sentences commuted. See Table 10.1, 'Capital punishment in Surrey, 1749-1802', where, of one hundred and nine men and women sentenced to death between 1771 and 1775, seventy-two are recorded as having been transported. Beattie, Crime and the Courts, p. 532.
138. Sir William Meredith (c. 1724-90), for instance, a liberal Rockingham Whig, summed up what was becoming the conventional wisdom of critics of the law by urging, in 1770, the adoption of penalties that would render prisoners once again useful to the community. See ibid., pp. 550 and 558 ff.
139. Recently, this has indeed been acknowledged by Devereaux, who states that 'the Houses of Correction Bill embodied a more substantial commitment to hard labour as a full-fledged substitute for transportation'. See Devereaux, 'The Making of the Penitentiary Act 1775-1779', p. 419.
140. Eden's second Hard-Labour Bill was prepared during March 1778, and was published along with a memorandum of Observations. These Observations were circulated anonymously for consultation, though all knew Eden to be their author. Howard played a large part in the consultation process, but offered little on the fundamental principles of penal law.
141. For detail of the circumstances and progress of the bill see Devereaux, 'The Making of the Penitentiary Act 1775-1779', pp. 420-8.
142. J. Bentham, Correspondence of Jeremy Bentham, II, ed. T.L.S. Sprigg (London, 1968), p. 104, April/May 1778, Bentham to Reverend John Forster.
143. Ibid., p. 100. This paragraph adds weight to the suggestions that Catherine the Great had read and approved of Eden's Principles of Penal Law, and that the bill was openly known to be the work of William Eden.
144. The Hard-Labour, or Penitentiary, Bill was drawn up by Eden with assistance from Blackstone, Howard, Sir Richard Sutton, Sir Charles Bunbury and Sir Gilbert Elliot. See Bolton, 'Eden and the Convicts', pp. 38-40.
145. See ibid., pp. 39-40. Radzinowicz describes the Penitentiary Act, 19 Geo. III, c. 74, as 'one of the most important laws in the history of the prison system', English Criminal Law, p. 444 n. Eden's plans for the extension of imprisonment were attacked both in 1776 and 1778 by those concerned that widescale imprisonment would serve to encourage greater criminality.
146. See ibid., pp. 39-40. Radzinowicz describes the Penitentiary Act, 19 Geo. III, c. 74, as 'one of the most important laws in the history of the prison system', English Criminal Law, p. 444 n. Eden's plans for the extension of imprisonment were attacked both in 1776 and 1778 by those concerned that widescale imprisonment would serve to encourage greater criminality.
147. Devereaux shows the Penitentiary Act to be very different from the bill originally drafted. See Devereaux, 'The Making of the Penitentiary Act 1775-1779', pp. 405-8 and 428-33.
148. Some commentators, such as Sean McConville in A History of English Prison Administration, 1750-1877, p. 108, overlook Eden's initiating role and only identify Blackstone as the main drafter of the Penitentiary Act. A valuable corrective is provided by Devereaux, who shows that whilst Blackstone did drastically rewrite the bill in its later stages in order to secure acceptance, the bill originated in Eden's 'truly ambitious' vision of a substantial scheme of hard-labour imprisonment. See Devereaux, 'The Making of the Penitentiary Act 1775-1779', p. 420.
149. Some commentators, such as Sean McConville in A History of English Prison Administration, 1750-1877, p. 108, overlook Eden's initiating role and only identify Blackstone as the main drafter of the Penitentiary Act. A valuable corrective is provided by Devereaux, who shows that whilst Blackstone did drastically rewrite the bill in its later stages in order to secure acceptance, the bill originated in Eden's 'truly ambitious' vision of a substantial scheme of hard-labour imprisonment. See Devereaux, 'The Making of the Penitentiary Act 1775-1779', p. 420.
150. Eden was not entirely uncritical of Beccaria. He believed, for instance, that Beccaria's call for celerity in punishment was excessive. See Eden, Principles, pp. 296-7.
151. Bentham Manuscripts, University College London, IX. fol. 15 (25 December 1791).