garded by mankind as of an inferior na- | ture, and which affect property in a trivial manner, is also deserving the most serious attention. It is only necessary to be acquainted with the modern history of the criminal prosecutions, trials, acquittals, and pardons in this country, in order to be completely convinced, that the progressive increase of delinquents, and the evils experienced by society from the multitude of petty crimes, result in a great measure from this single circumstance. It will scarcely be credited by those, whose habits of life do not permit them to enter into discussions of this sort, that by the laws of England, there are above one hundred and sixty different of fences, which subject the parties who are found guilty, to death, without benefit of clergy. This multiplicity of capital punishments must, in the nature of things, defeat those ends, the attainment of which ought to be the object of all law, namely, the prevention of crimes."

perhaps only twelve shillings worth of property out of his shop. It is he, my Lords, who dares not go into a court of justice; it is he whose feelings and mind are racked with the horrors of a punishment, which he supposes the miserable wretch at the bar must endure; he feels, that it is from his lips his doom must come-he shrinks back with dismay, and retires from his public duty, preferring the quiet of his conscience to the security of his property. What then, my Lords, are the baneful consequences to society of this susceptibility? The ends of the law are defeated. No man can bear to take away the life of a fellow-creature for an injury which he may repair by future industry. Then, my Lords, is not the defect of the law as manifest, as the difficulty of its remedy is trifling? I put it, therefore, to your lordships, will you, with the prac tical ill-consequences of this law before your eyes, with the experience you have had of its effects upon society-will you still persevere in a course of conduct, which sets at nought the wisdom and experience of centuries. If your lordships do this, in vain does the world become enlightened; in vain does science rear its head upon the ruins of ignorance and barbarism; to little purpose we ex

But the noble and learned lord and Mr. Colquhoun are at variance upon this point. Certainly, my Lords, the opinion of such a magistrate is not to be looked upon with contempt; still less are the sentiments of the enlightened judge I have quoted to be considered of no importance. Mr. Colquhoun says, the effect of apply-pand the human mind, and open wide the ing a disproportionate punishment to a comparatively petty offence, is only to increase the frequency of the crime. Now the question is, is this one of those comparatively petty offences, or is it not? My Lords, upon this subject I can only appeal to the noble and learned lord himself, who can inform you of the number of persons who are almost annually con victed of this crime, and who are actually pardoned by the extension of his Majesty's mercy. Now, my Lords, in the first place, I must state distinctly, that one of the chief grounds upon which I seek the repeal of a law which is disproportioned to the crime, is the effect it has upon the feelings of mankind, in deterring them from prosecution. Who is there among your lordships who has reflected upon these subjects, that does not know many individuals that have been deterred from prosecuting upon crimes of this nature? It may perhaps be said, and literally speaking it may be true, that it is a duty we owe to the state; but there are many persons of ordinary sensibility, who shudder at the thought of prosecuting an unfortunate wretch to death for stealing

field of philosophy and truth; our lives must for ever remain a tissue of incon gruity; our actions for ever at variance with our good sense. But it is said, this will be a material alteration. True, my lords, it will. It undoubtedly affects the criminal justice of this country. But there is this material view of the alteration to be taken into your lordships' consider. ation. This Bill goes to repeal a statute law, and not the common law of the land; upon which observation I beg leave to lay great stress. Because, my Lords, in the one case, it is no uncommon thing to make frequent alterations, whilst in the other no alteration can ever occur. The com mon law, the unwritten law of the land, is that, to the wisdom of which all men give their common assent. Whereas the sta tute law, which is enacted as the necessities of the times may require, is continu ally varying. Scarcely does a period of five or six years revolve over our heads, that some alteration or amendment does not take place in the statute law of the land. Now, my Lords, if considerations of experience and necessity are to operate with legislators in cases of ordinary sta

this, my Lords, brings me to a part of the subject, which in no small degree makes good the positions I have been endeavouring to impress upon your lordships. I am aware, my Lords, that we may be told, that the law, as it is at present administered by those learned luminaries who preside in the courts of justice, can never be abused. My Lords, I humbly submit, that the character and conduct of these independent and honourable men, make no part of the present discussion. No man can have a higher respect than I have, for those talents, for the wisdom, the integrity, and the honour, which is to be found on the bench of justice. The pane. gyric of so humble an individual as my. self, can in no degree tend to heighten the character of men, whose upright conductwhose faithful discharge of their irksome duty, entitles them to the gratitude of a liberal country. But, my Lords, I humbly contend, that the conduct of the judges of the land, however honourable, wise, and just, they may be, ought in no degree to weigh with your lordships in the consideration of a question, which concerns not only the present generation, but posterity for ages to come. We may also be told, that the severity of this law is completely mitigated or counterbalanced by that spirit of mercy with which the royal breast is filled-that the difficulty of de tection is another argument in favour of it-and, moreover, that the greater difficulty of conviction is a decisive reason why we should stop every attempt at improvement. We are further told, that the paucity of cases which have been brought to trial for offences of this nature, clearly shew, that the terror of death has its effect in preventing the crime. Nothing, my Lords, is more fallacious than this

tute laws, which affect merely the
common intercourse between man and
man, surely a statute which affects the
life and best interests of mankind, is en-
titled to paramount consideration. My
Lords, your lordships must bear in recol.
lection, that this is a statute, enacted in
the reign of King William 3-made to
suit the circumstances and necessities of
the times a law, perhaps, of temporary
expediency, and not the measure of sound
legislative wisdom. How often, my Lords,
do the passing events of the day call for
the severest legislative enactments, which,
at another period, when the occasions of
their adoption have ceased, would bear
the character of times when the bonds of
social order were burst asunder by the
violence of anarchy and tumult. My
Lords, in the unenlightened time to which
I allude, legislators observed no degree
of relative proportion between the crime
and the punishment. Almost every spe-
cies of offence was punishable by death.
But, my Lords, if we wanted any addi-
tional proof of the barbarism of those
times, I can only refer you to that statute
which enacted, that no person but those
who could not read should be liable to a
capital punishment: the absurdity and in-
justice of which was not practically recog,
nised until the fifth of Anne, when it was
most properly repealed. It was not until
a century after the reign of that monarch
that many statutes, which denounced the
penalty of death without benefit of clergy,
upon the most common and ordinary of
fences, were repealed; and yet, my Lords, in
these enlightened times (sorry am I to say)
there seems to be hardly any visible decrease
in that catalogue of crimes to which the
law has attached the punishment of death.
"It is a melancholy truth," says Mr. Jus-
tice Blackstone," that among the varietyment.
of actions of which men are daily liable to
commit, no less than one hundred and sixty
have been declared by act of parliament, to
be felonies without benefit of clergy; or in
other words, to be worthy of instant death."
My Lords, if the list of those added since
Mr. Justice Blackstone's computation,
were taken into account, I almost fear it
would amount to nearly double that num-
ber. Why, my

argu

It is very possible, I grant, for those who administer justice under this law, to render an account of the number of

persons who have been tried, and have been convicted, and have suffered under it; but, with great deference, I am of the same opinion with Mr. Colquhoun; you may ascertain the extent of a particular crime by the numbers punished; but in vain can you undertake to ascertain to rds, you have upon what extent the crime really exists; for your table, relating merely to the reve. in how many hundred instances is the nues of the country, I may not be rightly crime committed, where no proceedings. informed as to the precise number, but I against the offender are instituted! But it state the number, for the sake of ar- is not so in crimes committed against the gument) a list of no less than 75 crimes revenue. The difficulty there is not so which are punishable with death. And great as in the former case. You happen

now, my Lords, to have a pretty accurate | ships' attention upon a subject which has return of crimes of this nature on your table. There is a list not only of the number of persons prosecuted, but of the number of persons convicted under these laws. You will find, my Lords, that there are about 61 crimes committed which are punishable with death; bút, extraordinary to relate, there are only 26 out of the 61 against whom prosecutions have been instituted. Is this not, my Lords, a melancholy proof of the inutility of laws, which can never be put in execution, by reason of the disproportion of the punishment to the crime. But, my Lords, your surprise will be heightened, in no trifling degree, by finding that out of the 26 persons prosecuted under these laws, only nine suffered punishment. My Lords, no man can deplore, more than I do, so unwise a system of criminal legislation. I acknowledge that no man can state the principle upon which laws of this nature ought to be adopted, more justly and more forcibly than my noble and learned friend. But the statement of his case does not bear out his principle. If the state in which the case stood, with the argument upon which those principles are contended, were consistent with each other, I could not question their wisdom and good sense. I confess that I do concur with my noble and learned friend, in the principle he has laid down, and the effects of that principle; but I cannot agree with him in the facts from which those principles are drawn. Experience has shewn, that a defect in the law does exist, and it therefore must be necessary to make some alteration. My Lords, I have thus stated, as simply as I could, the grounds upon which this Bill is brought into parliament, and I only hope that your lordships will not attribute to those who support its adoption, any wish to alter the general principle of the laws of the land; still less that they have any disposition to be dissatisfied with the merciful administration of justice in this country. My Lords, nothing is farther from their intention. They feel, and justly appreciate, the integrity, the honour, the independence, of those enlightened men who preside on the judgment-seat. I have, my Lords, submitted some of the grounds upon which I consider this par ticular law not only inadequate to its end, but injurious to the interests of society.

The Earl of Suffolk. My Lords, I shall certainly take up very little of your lord

been already argued so forcibly by my
noble friend, in every one of whose sen-
timents I perfectly concur. Certainly
one circumstance has struck me very
forcibly (as it has my noble friend) in con-
sidering this question: I mean the extraor
dinary severity of the law enacted in the
time of William 3. I could have wished
to hear some reason assigned for inflicting
so heavy a measure of punishment for an
offence, by many degrees more venial
than a numerous catalogue of other crimes
which are not visited with such a severe
punishment. Having heard no sufficient
reason given for it, I must infer, that none
can be given. My Lords, it is no less a
lamentable than a true observation, that
the laws of this country are written in
blood; and sorry am I to say, that the
history of the country furnishes too many
instances of remorseless cruelty, and ex..
emplary severity, not to concur in the ge-
neral justice of that character.
It is,
however, some consolation to the re-
flecting mind, that the reigns of some of
our monarchs have been less tinctured
with the barbarism of the times than
others. Can any man contemplate the
sanguinary history of Henry 8's reign
without horror and dismay. If I am
rightly informed, and the sources of my
knowledge are correct, it has been ascer
tained that no less than 2,000 human vic
tims have been sacrificed by the hand of
the executioner in one year. To the ge
neral principles upon which the present
Bill is brought forward, I most cordially
assent, but I am more thoroughly induced
to give it my support, upon the particular
argument urged by my noble friend,
namely, that the excess of the punishment
deters the injured from prosecuting the
guilty. My Lords, I cannot doubt the
truth of this argument, for I am myself an
humble instance of its force. It happened
to me, my Lords, about four or five years
since, to leave my house in town for the
purpose of going into the country. An
old and faithful servant was left in care of
it till my return. In about four or five
days I came to town again, and found, to
my surprise, that my servant had fled
during my absence, carrying off with her
a considerable quantity of plate and other
property. Now, my Lords, there were
many causes which operated with me to
abstain from prosecuting this unfortunate
woman. She was aged, and the course of
nature had already marked her by many

infirmities for a speedy but natural disso- | which, in the course of seven years, has Jution-she had been the dupe of a designing villain, who instigated her to the theft-she was friendless, and she was poor. My Lords, public duty pointed out the course I ought to take. I knew I la ought immediately to go before a magistrate, who would have committed her for trial-I must have appeared in a court of justice, as the prosecutor against her, and have embittered my own life by the consciousness of having shortened hers. My lords, humanity triumphed over justice and public duty. I was constrained to turn loose upon the public an individual certainly deserving of punishment, because the law of the land gave me no opportunity of visiting her with a castigation short of death. My Lords, upon this ground alone, and for the sake of public justice, this law ought, in my opinion, to be amended. For the sake of the injured and not of the guilty, I am an enemy to inordinate severity. The prosecutors are those who fear death, and not the persons offending. I shall not trouble your lordships any longer upon this subject. I shall cordially and conscientiously support

&

the Bill.

been only once put into execution? The fundamental object of this Bill is, in fact, to restore to the code of our country, a law which may be beneficial to society, and safe and wise in the administration of justice. It therefore cannot be said of my noble friend, that speculation is the sole motive which impels him to make im provement. Let us see, my Lords, the nature of the defect which this Bill is intended to remedy. By the law, as it exists at present, stealing privately in a dwelling house to the value of 40s. and to the extent of 5s. in a shop is punishable with death. It will be for your lordships to consider what was the meaning of the legislature at the time that law passed, for in that rests a considerable portion of the argument in favour of the present bill. A man who stole only 4s. in a shop and 39s. in a dwelling house, escaped the dreadful penalty prescribed by the statute. Now, my Lords, in the present day are we not to consider the relative value of money in the reign of William 3, to that in the reign of George 3, because a great deal ought now to depend upon the application of the law to the value of the property stolen. My Lords, a crown at that time was, according to the present value of things, worth ten shillings, so that in point of fact, the law with respect to stealing privately in a shop makes it death for a man to steal to the value of two and sixpence, that being the real value of the then crown at this moment. It may be fairly said, therefore, that this law is one that is not only not executed, but that it never was intended to be executed to the full meaning of its terms. Now, my Lords, the noble and learned lord, from whom I always feel the greatest reluct ance to dissent, for there is no man for whom I have a greater respect, and with whom on a point of this nature, looking up to him as a man and a judge, I might incur the charge of presumption to differ; yet, with great deference, I cannot agree with the principle he has laid down. The noble and learned lord seems to think the excellence of a penal law, is to visit every species of crime with the heaviest possible punishment, leaving the mitigation or reduction of it to the judge who shall preside on the seat of justice. Now, my Lords, I humbly contend, that this principle, if it were just or legal, could never be carried into effect. The noble and learned Lord would find great difficulty in framing

The Earl of Lauderdale. My Lords, there are one or two observations I feel it my duty, under the particular circumstances of this Bill, to state to your lordships. My Lords, I do feel, that as the commencement of a general system of legislation, the introduction of this Bill might be very objectionable. But, my Lords, when we consider this merely as a specific alteration in a particular act of the legislature, and that it stands under very peculiar circumstances, I am sure your lordships will be disposed to disarm your minds of the prejudice to which in every other point of view it would be justly liable. The law which this Bill is intended to repeal or amend, is one which is seldom or never executed, and I will undertake to prove to you, that in its present shape, it never was intended by the legis lature to be executed. We are told that it is an extremely pernicious principle to introduce speculative alterations into the established law of the land, and it has been alledged that this very Bill is subject to this imputation. My Lords, so far from its being a speculative alteration, it is intended to render a speculative law practical. No man can deprecate more than I do, a system of speculative legislation; but what will your lordships say of a law

a law which should destroy that compact | tion and esteem in no degree inferior to which ever and always must exist between the consideration of this House. With all the judge, the witness, and the jury. It the deference, however, I owe to the is impossible to frame a law which shall noble lord's judgment, and with all the have the effect of giving the power of weight which the opinion of the other punishment only to the judges. That venerable judges of the land carries with must entirely depend upon the witness, it, and which I am compelled to believe the jury, and the judge collectively. has been stated correctly by the noble How, my Lords, can you compel an unwil- lord, I cannot but conceive that there ling witness to state to the court and jury may possibly be some mistake, and even every matter he knows which may have if there be not any mistake, I cannot in the effect of injuring an offender whom he my conscience, and consistently with the may pity under his misfortunes. In him, execution of my duty in this House, therefore, my Lords, there virtually rests a make any concession of my own opinion. power of mitigating the severity of the Your lordships know, that when the varipunishment. How, my Lords, can you ous statutes relating to the revenue landa prevent the jury through compassion, were concentrated into one, all the acts from forgetting their oaths, and either ac- which inflicted the penalty of death were quit the guilty altogether, or mitigate the laid upon your lordships' table, and were nature of the offence, in order to se- subsequently referred to a committee apcure them from the severity of punish- pointed by your lordships, to whom instrucment; and lastly, my Lords, with respect tions were given to report what laws were to the judges themselves, how can you necessary, and with what we might safely prevent a judge, through a mistaken no- dispense. On that occasion we were botion of compassion, from respiting the noured with the presence of some of the offender, or recommending him to the judges, who sat with us during the royal mercy? My Lords, I contend it is deliberations of the committee. Your absolutely impossible to give the power of lordships will also recollect that we administering the punishment to the judge received the several reports from the alone. But, my Lords, I wish to know Excise-office, from the Stamp-office, from which is the greatest evil of the two: the Tax-office, from the Post-office, and the noble and learned lord says, that from several other offices, which were the object of punishment is the example all patiently considered. I now speak in it will have upon society; that is univer- the presence of the noble lord opposite, sally admitted; but if, by this species of (lord Hawkesbury,) who will bear tes law, you hold out an inducement to the timony to what passed in the committee; prosecuting witness and the jury to per- he will recollect that, after several days jure themselves and divert the course of patient deliberation, the committee came justice, from a mistaken humanity, in vain. to an opinion, that the punishment of do you look for the example. Whereas, death in some cases was indispensable; my Lords, by prescribing a certain but that in many others it defeated the ends mild punishment, you rescue the jury and of justice by its excessive severity; that the witness from the temptation; the it had the effect of throwing so many offender is punished; an example is set to obstacles in the way of conviction, that the rest of mankind, which has more effect, the offender was seldom or never punished; nine times in ten, than can possibly arise and that the public would be most matefrom a law of this sort. My Lords, I rially benefited by some legislative enactmainly contend, that the consequence of ment for mitigating the excess of this keeping up a criminal law which cannot punishment. If the evidence adduced be executed, is to corrupt the witnesses before that committee were now before and prevent the jury from convicting, let your lordships, I am sensible of the effect the presumption of an offender's guilt be which it would produce. My Lords, lookever so strong. But, my Lords, the noble ing up as I do, with great respect to the and learned lord has upon this subject opinions of the learned judges, I cannot given you not only his own enlightened forget the important evidence which was opinion, but he has come down to the given before that committee by the soHouse, strengthened by the collective opi- licitor of the excise; the weight of his nion of a body of men for whom your testimony can never be counteracted in lordships must feel the greatest respect, and my mind, and I know it was felt by us for whom the country entertain a venera- all. I speak in the recollection of the