and frauds of a more heinous kind, though not accompanied with violence or terror. He was quite ready to allow, that here some serious difficulties presented themselves, but still he argued that this division of crimes was clearly distinguishable from the other classes of felonies he had noticed. Upon such an extensive and important question he wished not to be understood as giving any decisive opinion: but he put this to the House, not that judicial discretion should be entirely taken away, for it ought to be allowed an extensive range, and nothing could be more unjust than an undeviating rule of law; but whether it was convenient, upon the whole view of the subject, that the discretion of judges should extend to life and death, in cases where the ordinary punishment was transportation for life, or for limited periods? This question had been first started in Parliament by his beloved and lamented friend, to whose memory justice had already been done in this House by an honourable member, whose kindred virtues and kindred eloquence peculiarly qualified him for the melancholy task. The question with regard to the discretion that ought to be exercised was not as to the infliction of transportation, but as to the power of superadding death as a punishment in cases of an aggravated nature. He did not mean to enter in to any discussion of the principles maintained by Dr Paley on this subject. It had been argued on a former occasion, by the late Chief-Justice of the Common Pleas, with reference to this question, that if one execution only out of sixty convictions for capital crimes took place, that one execution still served as a dreadful example, and diminished the chances of escape. He himself, on the contrary, was prepared to con. tend, that such an example, so far

from operating on the malefactor's mind as a source of alarm at the capital punishment, actually lessened the terrors of transportation. Exulting at his probable escape from the more dreadful infliction, his joy and satisfaction eclipsed and obscured those apprehensions with which he would otherwise contemplate the penalties which he was certainly to suffer. Exile appeared to him not a punishment, but a refuge. In support of this opinion, he would quote the authority of one whom, if he could not describe him as an eminent lawyer, all would agree to have been deeply skilled in human nature, as well as a most active and experienced Magistrate-he alluded to the celebrated Henry Fielding. In a work published by that gentleman, at the period when the first parliamentary inquiry was in progress, and entitled, "A Treatise on the Causes of Crime," there would be found this observation-" A single pardon excites a greater degree of hope in the minds. of criminals than twenty executions do of fear." But another most important consideration was, the effect of such laws in deterring witnesses from coming forward with their evidence, and the injured from commencing prosecutions. The better part of mankind, in those grave and reflecting moments which the prosecution for a capital offence must always bring with it to their mind, shrunk frequently from the task imposed on them. The act of George II. for preserving bleaching grounds from depredation, had been, from its excessive severity, seldom proceeded on. Such was the case with several other acts, and more especially with the act relating to bankrupts concealing their effects. He might refer also to an act passed in 1812, for the purpose of consolidating the different acts which created offences against the revenue laws, and repeal

ing all those not therein specified. It had become manifest, he presumed, that as Lord Bacon had long since observed, great penalties always deadened the operation of the laws. Sir Archibald Macdonald, who had long presided in the principal revenue court of the kingdom, had been convinced of the truth of this principle. Another point of great importance, in considering the comparatively small number of cases in which death was ordinarily inflicted, was, the effect which was produced by so frequently pronouncing the judgment. He feared that its effect was to impair, and sometimes wholly to remove those solemn impressions which it was desirable should always be produced on such an occasion. Of what possible advantage could it be to pronounce a sentence which every one who heard it was satisfied would not be carried into execution? To him it appeared to be so much wanton subtraction from those terrors which formed the chief guardian of society, because without them neither life nor property could be secure. could those terrors be sustained, if murder and burglary were levelled with offences deserving and receiving a much slighter punishment. The law was deprived of its beneficent energy, and society of the protection which it needed, whenever that authority was disarmed of its terrors. He entirely concurred in the opinion of Sir W. Grant, that the great utility of the punishment of death consisted in the horror which it was naturally calculated to excite; but that, to produce this end effectually, all criminal laws should be in unison with public feeling. Whenever they were directly opposed to it, the end must be totally defeated. He brought to the support of this argument no less authorities than those of Sir W. Blackstone, Mr Fox, and Mr Pitt;

How

to which he might add that of Lord Grenville, who had maintained the same principles, in a speech as distinguished by forcible reasoning, as by profound political wisdom and majestic eloquence. Amongst all people an agreement between the laws and the general feeling of those who were subject to them was essential to their efficacy. But this agreement became of unspeakable importance in a country where the charge of executing the laws was committed, in a great measure, to the people themselves. It was with these views and opinions that he had been induced to propose a full inquiry into the state of the Penal Code, not for the purpose of throwing new impediments in the way of our civil Government, but to remove those already existing, before they become insuperable. His object was to make the laws popular, and to reclaim an habitual reverence for their administration. It was in order that their execution might be made easy, their terrors overwhelming, their efficacy irresistible, that he now implored the House to give this subject its most grave consideration. He would beg to remind it, that Sir William Blackstone, in his classical work on the laws of England, had pointed out the indispensable necessity under which juries often laboured, of committing what he called a pious perjury, in estimating the value of stolen property. This was another lamentable irregularity springing from the system. The practice resorted to by one of the wisest institutions of the country, so clearly indicative as it was of public feeling, afforded an instructive lesson to a wise statesman. He had reason to believe that in a few days many petitions from a body of men intimately connected with the administration of the law-he meant the magistracy of the country-would be presented,

praying for a general revision. Amongst that body he understood that but little difference of opinion prevailed; and that when their petitions should be examined, it would be seen that the names subscribed to them gave them an additional weight. The petition from the City of London was entitled to particular regard. It proceeded from Magistrates accustomed to administer justice in a most populous metropolis, and who necessarily possessed very great experience. It proceeded from a body of most respectable traders, of men peculiarly exposed to those depredations against which capital punishment was denounced. An assembly so composed was one of weight and dignity, and its representations on this subject were entitled to the greater deference, inasmuch as the results of their experience appeared to be in direct opposition to their strongest prejudices. He would wish also to advert shortly to another petition, which had been presented from the Society of Quakers. This petition had been treated rather too harshly, and described as containing a very extravagant recommendation. It concluded, however, with simply praying that the House would adopt such a change as might be consistent with the ends of justice. It did certainly deviate into a speculation as to the future existence of some happier condition of society, when a mutual good-will might render severe punishments unnecessary; but this was a speculation with which good and philosophical men had in all ages indulged and consoled themselves. He should now conclude by moving for the appointment of a Committee to inquire into and consider so much of the Criminal Law as relates to capital felonies, and to report their opinions

to the House.

Lord Castlereagh, after complimenting the honourable and learned gentleman on the temperate and candid manner in which he had brought forward the subject, remarked, that his own views did not differ to any great extent; but he was apprehensive that the motion and speech of the honourable and learned gentleman, although they could have no such effect on that House, might be construed elsewhere as casting a reproach, and ascribing a sanguinary character to the jurisprudence of the country. It was however with much satisfaction he had heard the intention of forming a new criminal code explicitly disclaimed, and that it was not in the honourable and learned gentleman's contemplation to propose the suppression of capital punishments altogether. It must be evident, in the circumstances of this country, that without this painful sacrifice to justice, there could be no sufficient protection for property, liberty, or life. He was also gratified to find, that no opinion was entertained that any interference with the exercise of mercy was expedient. The administration of law could never be attended with equal justice, without the free use of that prerogative. The true question on which he was at issue with the honourable and learned gentleman, did not relate to the course which might ultimately be taken, or the degree to which our penal enactments might be retrenched, but to that species of proceeding which would be most likely to lead to a wise and salutary result. He fully admitted that two important precedents had been adduced, and that they were the more deserving of consideration from the circumstance of the illustrious character of the persons by whom they were established. Even on the narrow issue which the honourable gen

tleman had assigned to his own question, it appeared that, with all the able and illustrious supporters who had given their assistance to the subject, the consideration of the criminal laws was not concluded in one session, but occupied the House for two entire sessions. And what was the result? They sent up their bill to the House of Lords, and it did not pass. The honourable gentleman had not been able to prove that the number of felonies was at all diminished by the continuous labour of two years. If that honourable member's proposition for repressing a number of capital punishments was not accompanied by some measure by which a secondary punishment should be substituted for that of death, which punishment should produce the same effect of impressing offenders with a salutary terror, the House would certainly regard it as a proposition founded entirely on an abstract view of the laws; and it was that very abstract view which caused the failure of the measures taken in 1770. But what was the result of that course of proceedings in 1770? The honourable gentleman had not shown that it led to any permanent amelioration of our criminal code. The honourable and learned gentleman must permit him to say, that modern times might have furnished him with more effective precedents. If that House meant to do any thing in this most grave and most important business, if they meant to devise, seriously, a secondary punishment to be substituted for death, he conjured them to banish every thing like abstract and visionary reasoning. The honourable and learned gentleman had mentioned a late member, who brought to this discussion legal talents, to be rivalled only by the humanity of his intentions, and the zeal with which he

had pushed his exertions in the cause. But of all the measures he projected, none ever received the sanction of the other House. He was most anxious that the House should proceed on practical, not on abstract principles; that they should not separate the theory from the practice of the law. The late Sir S. Romilly submitted a bill to that House for the purpose of taking away the punishment of death for stealing privately from the person. What result ensued? He would beg leave to refer to the returns. The bill passed into a law four years ago. As far as he had been able, he had watched the progress of that offence for the last ten years, which was the best criterion at all times of the effect of legislation; and he found that, so far from its having diminished in frequency, the increase was enormous. He would take two periods, one antecedent to the act, and the other subsequent, reckoning from the commencement of 1810. The number of convictions in that year was 136, and down to 1818, successively, as follows:-194, 224, 272, 311, 277, 402, 509, and 531. So that from those returns, which showed the proportion to be assigned generally to the increase of crimes, it would appear that this very offence, the immediate object of that enactment, had increased fivefold. The honourable gentlemen had asked, when he solicited the House to adopt his committee for an inquiry into particular punishments and the increase of crimes, what business had it to inquire into the subjects of transportation and secondary punishments? It would have every business in the world to do so; if it should not, it would effect nothing. Every one in that House knew that out of the 13,000 criminals who annually crowd our prisons, 10,000

were of the description alluded to by the honourable gentlemen. It was especially necessary to consider the question of secondary punishments; for, take away the terror of the capital punishment, and substitute no other secondary penalty, whose influence might deter offenders, and the whole object of the law was left neutralized and invalid, and the repression of crime would become more precarious than ever. With respect to the penalties attached to burglary, robbery, &c., the honourable gentleman had not called in question the law on those subjects. With respect to the nature of other offences alluded to by him, such as larceny, embezzlement, &c. their consideration was undoubtedly of the first importance. But if ever there was a necessity of connecting the discussion of the offence with that of the punishment, it existed in regard to these cases. Surely it was most important to know the history of crime, before they proceeded to legislate upon its penalties: and these two objects, he must strenuously contend, ought to be confined to the same committee. Referring to the immediate objects, however, of that committee proposed by the honourable gentleman, he really thought that that House ought not to go into the duties and details of classing prisoners, and arranging the management of gaols: they ought to enter upon the subject with larger and more comprehensive views; and permit those duties to be imposed on others, whose habits and inquiries better qualified them for the task. Satisfied, as he was, that the result of his own motion would be, that a committee would proceed upon practical, and not upon abstract principles, he must oppose the motion of the honourable and learned gentleman; protesting,

that his opposition was not founded on any wish to dispute the progress of what he felt was their common cause, but only in the apprehension that the principle of that honourable gentleman's motion would not be productive of those results which he anticipated from the adoption of his own.

The Speaker having proceeded to put the original question,

Mr Buxton rose, and said, that he wished the very important question now agitated should not be confined to the committee proposed by the Noble Lord, for this reason-that all the talents, and all the labour, and all the zeal which that committee could bring into the House, would be wanting for the discharge of the important duties that would devolve upon them. Those duties he would beg leave to recapitulate: they would be, 1st, An inquiry into the present state of the prisons; 2d, The means to be adopted for improving the system of their management; 3d, The state of the police throughout the whole of the united kingdom; 4th, The manner and nature of transportation; 5th, The state of the hulks; 6th, The state of the convicts; 7th, The state of a colony of Antipodes. He had now to declare to that House his firm conviction, that the growth of crime was mainly attributable to our penal laws. The Noble Lord had declared, that this increase was owing to temporary causes, and had instanced a continued war as one of those causes. Now, he was disposed to admit that war, by habituating men to scenes of violence and bloodshed, rendered them less sensible to that repugnance to the commission of crime inherent in our nature, and frequently operating to deter even the most hardened from the execution of meditated outrages. But he had, in order to ascertain the fact on this