generally present to the minds of men, it never can be plausibly applied to rare and obscure offences, to penal enactments, of which it requires a more than ordinary degree of professional accuracy habitually to recollect the existence. Your Committee have endeavoured to avoid all cases which seem to them to be on this ground disputable. From general caution, and a desire to avoid even the appearance of precipitation, they have postponed cases, which seem to them liable to as little doubt as some of those to which they are about to advert.

It has sometimes been said, that the abolition of penal laws which have fallen into disuse is of little advantage to the community. Your Committee consider this opinion as an error. They forbear to enlarge on the striking remark of Lord Bacon, that all such laws weaken and disarm the other parts of the criminal system. The frequent occurrence of the unexecuted threat of death in a criminal code tends to rob that punishment of all its terrors, and to enervate the general authority of the Government and the laws. The multiplication of this threat in the laws of England has brought on them, and on the nation, a character of harshness and cruelty, which evidence of a mild administration of them will not entirely remove. Repeal silences the objection. Reasoning, founded on lenient exercise of authority, whatever its force may be, is not calculated to efface a general and deep impression. The removal of disused laws is a preliminary operation, which greatly facilitates a just estimate, and (where it is necessary) an effectual reform of those laws which are to remain in activity. Were capital punishments reduced to the comparatively small number of cases in which they are

often inflicted, it would become a much simpler operation to form a right judgment of their propriety or necessity. Another consideration of still greater moment presents itself on this part of the subject. Penal laws are sometimes called into activity after long disuse, and in cases where their very existence may be unknown to the best-informed part of the community: malicious prosecutors set them in motion; a mistaken administration of the law may apply them to purposes for which they were not intended, and which they are calculated more to defeat than to promote. Such seems to have been the case of the person who, in the year 1814, at the Assizes for Essex, was capitally convicted of the offence of cutting down trees, and who, in spite of earnest applications for mercy from the prosecutor, the committing magistrate, and the whole neighbourhood, was executed, apparently because he was believed engaged in other offences, for none of which, however, he had been convicted or tried.

This case is not quoted as furnishing any charge against the humanity of the Judge or of the advisers of the Crown: they certainly acted according to the dictates of their judgment; but it is a case where the effect of punishment is sufficiently shown by the evidence to be the reverse of exemplary; and it is hard to say whether the general disuse of the capital punishment in this offence, or the single instance in which it has been carried into effect, suggests the strongest reasons for its abolition.

The statutes creating capital offences, which the Committee have considered under this head, are reducible to two classes: the first relate to acts either so nearly indif ferent as to require no penalty, or if

9.

10.

down.

or

Unlawfully hunting, killing, or stealing deer,

Robbing warrens, &c. Stealing or taking any fish out of any river, or pond,

&c.

Hunting in his Majesty's forests or chases.

Breaking down the head or mound of a fish-pond. 11. 9 Geo. I. c. 28. Being disguised within the Mint. 12. 12 Geo. II. c. 29. Injuring of Westminster Bridge, and other bridges by other Acts. The second class consists of those offences which, though in the opinion of your Committee never fit to be punished with death, are yet so malignant and dangerous as to require the highest punishments, except death, which are known to our laws. These the Committee would make punishable, either by transportation or imprisonment with hard labour, allowing considerable scope to the discretion of the Judges respecting the term for which either punishment is to endure :

embezzling.

Concealing or

8. 6 Geo. II. c. 37. Cutting down the bank of any river.

9. 8 Geo. II. c. 20. Destroying any fence, lock, sluice, &c. 10. 26 Geo. II. c. 23. Making a false entry in a marriage register, &c., five felonies. 11. 27 Geo. II. c. 15. Sending

threatening letters. 12. 27 Geo. II. c. 19. Destroying bank, &c. Bedford Level. 13. 8 Geo. III. c. 16. Personating out-pensioners of Greenwich Hospital.

14. 22 Geo. III. c. 40. Maliciously cutting serges. 15. 24 Geo. III. c. 47. Harbouring offenders against the (Revenue) Act, when returned from transportation.

It does not seem necessary to make any observations in this place on the punishments of transportation and imprisonment, which your Committee have proposed to substitute for that of death in the second of the two classes above mentioned. In their present imperfect state they are sufficient for such offences; and in the more improved condition in which the Committee trust that all the prisons of the kingdom will soon

placed, imprisonment may be oped to be of such a nature as to swer every purpose of terror and formation.

III. In the more disputable quesons, which relate to offences of more frequent occurrence and more xtensive mischief, your Committee -ill limit their present practical conlusions to those cases to which the vidence before them most distinctly efers. They cannot entertain any loubt that the general principles which have been so strikingly veriSed and corroborated in some parti. cular cases by that evidence, apply with equal force to many others, relating to which they have not had sufficient time to collect the testimony of witnesses. That some offences which the law treats as arson, and more which it punishes as burglary, are not properly classed with these crimes, and ought not to be punished with death, would probably be rendered apparent by a legisla tive consolidation of the laws in being respecting arson and burglary. The same result, though in a less degree, might be expected from a similar operation in other important heads of criminal law.

On the three capital felonies-of privately stealing in a shop to the amount of 5s., of privately stealing in a dwelling-house to the amount of 40s., and of privately stealing from vessels in a navigable river to the amount of 40s.-the House of Commons have pronounced their opinion, by passing bills for reducing the punishment to transportation or imprisonment.

In proposing to revive those bills, your Committee feel a singular satisfaction that they are enabled to present to the House so considerable a body of direct evidence in support of opinions which had hitherto chiefly rested on general reasoning,

and were often alleged by their opponents to be contradicted by experience. Numerous and respectable witnesses have borne testimony, for themselves and for the classes whom they represent, that a great reluctance prevails to prosecute, to give evidence, and to convict, in the cases of the three last-mentioned offences; and that this reluctance has had the effect of producing impunity to such a degree, that it may be considered as among the temptations to the commission of crimes. Your Committee beg leave to direct the attention of the house to the evidence of Sir Archibald Macdonald on this and other parts of the general subject, in which that venerable person has stated the result of many years' experience in the administration of criminal law. They forbore to desire the opinion of the present Judges, out of consideration to the station and duties of these respectable magistrates. It appeared unbecoming and inconvenient, that those whose office it is to execute the criminal law should be called on to give an opinion whether it ought to be altered. As the Judges could not with propriety censure what they might soon be obliged to enforce, they could scarcely be considered as at liberty to deliver an unbiassed opinion. Of the Judges who have retired from the bench, Sir William Grant and Sir Vicary Gibbs, found it inconvenient to attend when they were requested; and the Committee dispensed with their attendance, having reason to believe that both adhere to the opinions which they formerly maintained in Parliament on opposite sides of this question. Lord Erskine was absent from London when it was proposed to examine him; but the Committee are well assured that his opinions entirely concur with their own. Sir James

Mansfield and Sir Allan Chambre appear to have formed no opinion, and the Committee, at their request, dispensed with their attendance.

But highly as the Committee esteem and respect the Judges, it is not from them that the most accurate and satisfactory evidence of the effect of the penal law can reasonably be expected. They only see the exterior of criminal proceedings after they are brought into a court of justice. Of the cases which never appear there, and of the causes which prevent their appearance, they can know nothing. Of the motives which influence the testimony of witnesses, they can form but a hasty and inadequate estimate. Even in the grounds of verdicts, they may often be deceived. From any opportunity of observing the influence of punishment upon those classes of men among whom malefactors are most commonly found, the Judges are, by their stations, and duties, placed at a great distance.

Your Committee have sought for evidence on these subjects from those classes of men who are sufferers from larcenies, who must be prosecutors where those larcenies are brought to trial, who are the witnesses by whom such charges must be substantiated, and who are the jurors by whose ver dicts only effect can be given to the laws. On this class of persons where the crimes are most frequent, and where long and extensive experience allows little room for error and none for misrepresentation, or, in other words, on the traders of the cities of London and Westminster, your Committee have principally relied for information. To the clerks of the of fices of Magistrates, and to the officers of criminal courts, who receive informations and prepare indictments, to experienced Magistrates themselves, and to the gaolers and

others, who, in the performance of their duties, have constant opportunities of observing the feelings of of fenders, the Committee have also directed their inquiries: their testimony has been perfectly uniform.

Mr Shelton, who has been near forty years Clerk of Arraigns at the Old Bailey, states, that juries are anxious to reduce the value of property below its real amount in those larcenies where the capital punishment depends on value; that they are desirous of omitting those cir cumstances on which the capital punishment depends in constructive burglaries; and that a reluctance to convict is perceptible in forgery.

Sir Archibald Macdonald bears testimony to the reluctance of prosecutors, witnesses, and juries, in forgeries, in shop-lifting, and offences of a like nature. He believes that the chances of escape are greatly increased by the severity of the punishments. "Against treason, murder, arson, rape, and crimes against the dwelling-house or person, and some others," he thinks "the punishment of death should be directed."

T. W. Carr, Esq. Solicitor of Excise, a very intelligent public officer, gave an important testimony, directly applicable indeed only to offences against the revenue, but throwing great light on the general tendency of severity in penal laws to defeat its own purpose. From his extensive experience, it appears, that severe punishment has rendered the law on that subject inefficacious. Prosecutions and convictions were easy when breaches of the law were subject to moderate pecuniary penalties: even a great pecuniary penalty has been found so favourable to impunity, that fraudulent traders prefer it to a moderate penalty. The act of counterfeiting a stamp in certain cases, within the laws of excise, was, before the

-ear 1806, subject only to a penalty of L.500; but in that year it was made a transportable offence, of which the consequence was, that the convictions, which from 1794 to 1806 had been 19 out of 21 prosecutions, were reduced in the succeeding years, from 1806 to 1818, to 3 out of 9 prosecutions.

Mr Newman, Solicitor for the city of London, speaking from thirty years' experience of the course of criminal prosecutions in that city, informed the Committee, that he had frequently observed a reluctance to prosecute and convict in capital of fences not directed against the lives, persons, or dwellings of men.

The Reverend Mr Cotton, Ordinary of Newgate, has described, in strong terms, the repugnance of the public to capital execution in offences unattended with violence, and the acquiescence even of the most depraved classes in their infliction in atrocious crimes.

Mr Colquhoun, for twenty-seven years a police magistrate in this capital, and well known by his publications on these subjects, declares his firm conviction that capital punishment in the minor offences operates powerfully in preventing convictions; and that there is a great reluctance to prosecute in forgery, shop-lifting, larceny

the dwelling-house, burglary without actual entry, horse-stealing, sheep-stealing, cattle-stealing, framebreaking, housebreaking in the day time, robbery without acts of violence, and other minor offences, now subject to the punishment of death. According to the testimony of this intelligent observer, the public mind revolts at capital punishment in cases not atrocious.

Mr Newman, late keeper of Newgate, and connected with the administration of justice in London for

forty years, gave testimony to the same effect.

Mr Basil Montague stated a fact of a most striking nature, immediately applicable only to one offence, but showing those dispositions in the minds of the public which must produce similar effects wherever the géneral feeling is at variance with the provisions of criminal law. From the year 1732, when embezzlement of property by a bankrupt was made a capital offence, there have been probably 40,000 bankruptcies; in that period there have not been more than 10 prosecutions, and 3 executions for the capital offence, and yet fraudulent bankruptcies have become so common as almost to be supposed to have lost the nature of crime.

Mr Stephen Curtis, a leather-factor in London, stated several cases of forgery, fraudulent bankruptcy, and larceny, where the persons injured declined to prosecute, from apprehensions that the offenders might suffer death: this is the general opinion of the traders of London, though in the opinion of this witness, there is scarcely a shop-keeper from Cornhill to Charing-cross who does not suffer from shoplifting.

Mr Jacob, who has lately travelled through England on business, and Mr Jennings, for some time a shopkeeper near Bridgewater, gave some evidence tending to show that the general sentiments of traders in the country were, on capital punishments, the same which the Committee had such ample reason to consi der as the prevalent opinion of the same valuable class of persons in the metropolis. Mr Jennings observed, that these opinions prevailed among farmers as well as shopkeepers, and that the capital punishment prevented prosecutions for horse, cattle, and sheep stealing, as well as for pri