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That course he was aware was not the way to effect any thing brilliant, either in that House or out of it; but then he was in

late not only on the chance of their escape, but upon the common feelings of mankind, which would probably prevent parties from taking away the life of a fel-clined to prefer what was useful to what low creature by a prosecution for so disproportionate an offence. All writers were agreed upon the point, that the certainty, not the severity of punishment, was most likely to deter from the commission of crimes. If, as the hon. gent. had said, the laws when too severe were not put in force, because individuals then declined to prosecute, was not that a reason why such laws should be modified in order that they might no longer remain a dead letter? The leaning of juries to the side of mercy was another argument for the alteration, because the mitigation of the excessive severity of the laws was in such cases produced sometimes by what should be deprecated by every legislature-perjury, however it may be defended from a consideration of the motives. The hon. gent. had asked triumphantly what punishments were to be resorted to; but if he had read the bill, he would have been enabled to answer that question by all that appeared on the face of the bill. He would have seen the discretion to be given to judges to change transportation for solitary confinement. However solitary confinement might appear worse than death to a person who could be guilty of premeditated crimes, it would have a good effect on the interests of society. The individual would not be lost to the community; he would come forth from confinement a better man than he entered it; and, as in the case of hanging or transportation, the effect of the example of punishment would not be lost to the public. He should most heartily, therefore, support the motion of his hon. and learned friend, who, he trusted, would not be diverted by any interruptions from the career of humanity he was pursuing.

Mr. D. Giddy begged leave to submit to the House the few observations that occurred to him on this subject. If he felt any difficulty upon the measures then in progress through the House, it would arise from considering a part of that general system which had been alluded to by the hon. baronet, and characterised as a career of humanity. He was not friendly to any great or violent changes. It had always been his practice in that House, to steer a middle course between the conflicting opinions respecting public measures.

was splendid. In the pages of the hon. and learned member (sir S. Romilly) he found it stated, that to the discretion proposed to be allowed to judges, nature had assigned one limit. For his own part, if they could be sure, that juries would be competent to sift and ascertain all the circumstances of each case that might be brought before them, so as to be enabled to decide according to its real merits, ho should feel no objection at leaving juries in possession of full discretion. But when it should be considered from what description of persons juries were usually chosen, it must be obvious that they would be as liable as any other body to fall into error. In stating what he felt upon this point, he did not wish to shelter himself from any construction which might be put upon his use of any particular expression. He was not afraid to add therefore, that in his view of the subject a certain degree of arbitrary discretion appeared necessary, absolutely essential, in all administrations of justice. In admitting this, however, he must also state, that this arbitrary discretion should not be unlimited. If all the difficulties on this head could be ascertained, then the House could attain the perfection of human jurisprudence; and if such perfection was desirable, it must be obvious that approximations to it must also be desirable. He thought that in some instances this discretion was carried too far. If it were admitted as a principle, that in the case of crimes of difficult detection, the quantity of punishment or the deterring principle should be greater, it would follow, that in crimes of easier detection the quantity of punishment should be less. It was not his intention to go into any of the more heinous offences to apply this principle, but confine himself to the more ordinary offences. Sheep-stealing he thought very properly punished with death; because, considering the manner in which sheep were fed upon extensive downs, the ex. posure to depredation, and the difficulty of detection, such a severe punishment was necessary for the sake of preserving the vast quantity of wholesome food and warm raiment for human use. It was his opinion too that all circumstances of ag gravation or mitigation should be attended to in the apportioning the punishment;

such, for instance, as the case of actually forcing the door, or striking the blow, circumstances at present attended to in proclamations. Such circumstances would unquestionably have effect in deterring from the commission of crimes under such aggravated-circumstances. The necessity of allowing a discretion in these cases flowed from the imperfection of the human powers of judgment. But whether the discretion was to be given to the judge or the jury, as far as he could form an opinion, he thought it should be left to the judge. When the House considered the manner in which the judges, not alone of the present day, but for many years back, were selected from a description of persons against whom no reflection could lie, he was persuaded that it would be evident the discretion could no where be better placed. He would much rather see it lodged in their hands than with juries, unless it could be made subject to definite rules, and juries should be found enlightened enough to discern and decide upon the actual merits, upon a comprehensive view of all the circumstances of each case. But though a friend to discretion under the qualifications he had stated, he should never accede to the establishment of unlimited discretion in any quarter. He should here enter his protest against the general principle of any extensive alteration, at the same time reserving to himself the right of agreeing to such parts of the measures of the hon. and learned member in which he could, consistently with his views and principles, concur. He was convinced that any reformation to be beneficial must be made in the detail; and whilst he entertained that opinion, he must at all times oppose any large or extensive steps towards an object which, in his view, was only to be gradually attained. Though he respected and admired the laws of England, he should never suffer his veneration for them to induce him to resist any measure, which might be brought forward for their actual improvement.

Mr. Windham conceived the present to be a question if, where guilt was found, execution of the sentence annexed must follow as the necessary consequence. This it was impossible ever to lay down. Such a doctrine would require certain and precise rules of proceeding, which it would be impossible to lay down as applicable to every particular case. He proceeded to notice the different argu

ments in the publication of sir S. Romilly on this subject, from the greater part of which he expressed his dissent. He denied that a man was ever punished because he had been guilty of another crime, different from that on account of which he was tried; or that, in the language of his hon. and learned friend's pamphlet, the person so condemned suffered not for the crime of which he was found guilty, but for another of which he laboured only under the suspicion. It was an old and a true saying, that the last feather broke the horse's back, but he presumed, it would hardly be said that a feather would break a horse's back, if there was no pre-existing weight imposed on him. In this view did he regard the argument now used by his hon. and learned friend. He conceived that laws were originally made, not so much for the punishment, as for the prevention of crime. Intimidation, he maintained, was the best method of effecting this. His hon. and learned friend seemed to argue that no sentence ought to be passed which should not be executed. But was it possible to lay down such a rule ? It was impossible to judge of any case till it actually occurred; but to apply the argument of his hon. and learned friend, it would be necessary to look to cases known and unknown. It was possible to distinguish things obviously different in themselves, but it was impossible uncon. ditionally to provide for different degrees of the same species of offence. The right hon. gent. proceeded to allude to a bill which, he understood, was once more to come before them, for preventing cruelty to animals, on which no two men could have the same feeling for any considerable period of time, and on which no one man could think alike for half an hour together. He could not help looking with an eye of jealousy on all such visionary schemes, which had humanity and justice for their ostensible causes. What had we witnessed within the last twenty years? Had not the French Revolution begun with the abolition of capital punishments in every case; but not till they had sacrificed their sovereign, whom they had thus made the grand finale to this species of punishment. When he looked, however, to the millions who had since fallen in the course of the Revolution, he could not but regard all schemes of the kind with an eye of jealousy. He asked, therefore, if such a system as this was, without considerasion, to be put up against that of Dr. Paley?

upon themselves a discretion which the law never intended to give them. Even the sanctity of their oath was sometimes obliged to yield to the feelings of nature, and they were guilty of what had been sometimes called a pious perjury, to acquit a prisoner. The fault was in the law as it now stood; for every law must be faulty which acts so decidedly against the feelings of the whole country. He did not mean to say that the law should in every case be carried into strict execution, nor would he wish that his Majesty should be deprived of the power of granting pardons. He thought, however, that pardons should be only exceptions to the general rule, and that it was by no means right that the general administration of the cri

on the King's pardon, whether his Majesty was advised by his judges or his other advisers. He never could conceive how he could agree to passing any law unless it were his intention that it should be generally executed. It had been urged, that in the plan proposed by his hon. and learned friend (sir S. Romilly) there was a considerable degree of discretion given. It was true that there necessarily was a considerable degree of dis

The Master of the Rolls said, that it was a principle which was agreed to on all hands, that the prevention of crimes was the object of punishment; and the question only was, whether the plan proposed by his hon. and learned friend (sir S. Romilly) would not be, in all probability, more efficacious for the attainment of that object than the system of criminal laws which now exists. If it were only equally efficacious with the existing system, every body must prefer it, as producing the same effect by means less severe; but it appeared to him that it would not only be as efficacious, but probably more so. It was evident that either the law or the practice must be wrong, and whichever was wrong ought to be remedied. Now the practice of not inflicting the punish-minal law of the country should be founded ment denounced by the law, came every day before the observation of the public, and under the inspection of parliament, and yet no fault had been found with it. There was no disposition to censure the judges, or his Majesty's advisers, for not putting the law in execution. It there fore did appear to him to be most clear that in the public opinion the laws appeared too severe in their punishments. It was wrong, in any country, that the laws should be in direct opposition to pub-cretion, but then it was a discretion of a lic opinion; but it would be particularly improper in this country, where offences are tried by a jury, and where laws contrary to the general opinion were not likely to be well executed. There, in fact, appeared to be an universal confede racy in this country against the criminal law as it now stands. In the first place, the juries, notwithstanding the paucity of executions, still were unwilling to trust the lives of the prisoners to the discretion of the judge, but took hold of every possible circumstance to acquit them of the capital part of the charge. Next came the judges; and lastly his Majesty's advisers, who were all anxious to spare the lives of those who had been capitally convicted. It therefore appeared to be generally agreed by all men, that the punishment of death was much too severe for the generality of offences against which it was denounced. If intimidation would absolutely prevent crime, the punishment of death might be held out for the most trifling offences; but it was well known that the terror even of death would not altogether prevent the commission of crimes. Juries were now in a manner forced by the severity of the law to take

VOL. XVI.

very different nature. It was not a discretion going to life or death, but merely of proportioning the gradations of a certain sort of punishment to the gradations of crimes. In capital punishments there, was no possible gradation; and he thought it too much generally to leave the life or death of persons convicted to the mere discretion of the judge. It was this which induced juries so often to acquit prisoners when there could be hardly any doubt of their guilt. If, however, a milder system should be introduced, there would be no longer so much repugnance to prosecuting offenders, or so much disinclination to convict them. He therefore approved of the principle of the bill of his honourable and learned friend, and thought that an experiment of that sort might very safely be tried. He thought that it was better calculated than the present system for preventing crimes, by rendering the pu nishment more certain. He therefore should support the bill.

The Attorney General, confining himself to the particular bills before the House, maintained that, as far as his experience went, parties were not, by the existing law, restrained from prosecuting, nor juries

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he did the highest respect for the talents and motives of his hon. and learned friend, he could not agree with him in his views of the subject before the House. He wished that his learned friend, previous to the introduction of his series of bills, had consulted those who were best competent to give him information. However sanguinary our criminal code might be in appearance, there was not upon its practical application so mild a system

from finding the fact. He argued that the law was already armed with all the power given by this bill, and so far executed, that although felons of this description were often exempted from death, they were still transported, imprisoned, &c. Thus the law, as it stood, had all the power of punishment and prevention given by the bills, and the power of death in addition. He argued that the possibility of inflicting death did operate as a prevention; though he, and others who thought with him, la-under the sun. In fact many of our laws boured under a disadvantage from not being able to produce instances, because what was prevented was never seen. He maintained that these cases were often attended with circumstances which rendered it extremely proper that there should be a power of inflicting the punishment of death; and he illustrated this by cases which he had seen on the circuit in the early part of his life, where the dwellings of poor cottagers had been plundered while they were at their labour. The situation was different in originating a law entirely from that of proposing a repeal of an old law on the same point; unless experience proved the old to be pernicious it ought not to be altered on mere theory. He denied that experience had proved the existing law to be pernicious or inefficacious. The judges, who must be best acquainted with its practical effect, had not been consulted, or, at least, they had not given their sanction to the proposed change. Conceiving that no particular good would result from this change, he was adverse to the bills.

were only preserved in terrorem. They were like a blunderbuss and rattle in the window of an honest citizen retired into the country; kept there to frighten away the thieves, and from which a shot might not have been discharged in twenty years. He contended against the repeal of the law against stealing in a shop; the existence of which was absolutely necessary to protect the justifiable artifices employed in the exposition of goods. In a commercial country like this, such laws were necessary, for property could not be safe without them. He was adverse to weakening the penal code, the effect of which would be more mischievous than the House was aware of. He was persuaded it would be better to leave the application of the criminal laws to the conscience of the juries, the discretion of the judge, and the royal mercy, whenever it should be necessary. There was a discretion of punishing desertion with death in the military code, and yet hardly one out of 100,000 deserters was put to death. In a country where political and personal freeMr. Morris maintained, that it was no- dom was so much enjoyed as among us, torious that parties were often prevented our criminal statutes must of course be from prosecuting, and witnesses from com- numerous and severe. These multiplied ing forward by the severity of the exist- punishments were part of the price we ing law, and that juries were often obliged paid for our liberty; they were counterto have recourse to a pious perjury, as it balances that must unavoidably take place. had been called. It was unnecessary for By altering our criminal system, or dishim to state the importance of not relax-turbing it in any material degree, we ing the obligation of an oath; he was for should destroy those high and lofty senleaving this amiable weakness, or pious timents which were the best safeguards of perjury, or whatever it might be termed, our constitution. He thought the code to the circulating libraries, and for keep-might be safely allowed to remain as it ing it out of the courts of law. These bills were brought forward as a remedy against existing evil-an evil which every one in the habit of attending on criminal courts must know to exist. The discretion as to the infliction of death the judges would, he believed, very readily dispense with. It was one which they felt the most painful anxiety in exercising.

Mr. Frankland said, that entertaining as

was. It was less formidable in effect than appearance. It prevented crimes without recurring to punishment. No other system he was persuaded would answer the great end of legislation so well. He argued, that the penal laws of England were necessarily more severe than those of other countries, because the controul and suspicious watching of private actions was less rigid. Such, a system, of suspicion

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was utterly inconsistent with the feelings | and liberties of the people of this country, and therefore the penal law must be more severe. In other countries the armed man was every where, and he himself had seen him among a crowd of young people at a ball, and interfering to tell one of the dancers, that he must not turn his partner that way. Our code had grown out of the commercial system. Forgery was formerly but a larceny; but the security of property made it necessary to punish it with death. He deprecated these alterations of the law, as attended with the worst effects. He therefore felt it his duty to oppose the bill.

Mr. Wilberforce observed, that the greater part if not the whole of the argument used by the gentleman on the other side, would apply more correctly to any measure for the establishment of a totally new system of police than to the bill under consideration. But, even supposing this bill involved a proposition for the diminution of capital punishments generally, could gentlemen put the test of that experience, upon which they professed so much to rely, against the propriety of such a proposition. How did experience argue upon this question? Why, that the infliction of capital punishments had become comparatively infrequent and unnecessary. In the reign of Henry 8, the number of capital punishments was at the rate of 2,000 per annum; in the time of Elizabeth it fell to 400; and, he understood, that of late years since the Revolution, a very small proportion of those who were sentenced ever suffered death. From this he inferred that such a punishment had been found in great part unnecessary; and why then should the power of inflicting it be allowed to remain in so great proportion of our penal laws subject to the discretion of the judges, and subject also to all the inconveniences which had been already stated with regard to prosecutors, juries and witnesses, and the frequent impunity of guilt in consequence of the excessive severity of punishment? As to the measure before the House, the plain question was, whether the offence described was of that nature to which the punishment of death ought to apply? And he was fully prepared upon the fullest deliberation to decide in the negative. Out of 1,000 sentenced only one being executed, it was clear that the law was unnecessary, and that the exception was the rule while the rule was the ex

ception. Instead of severe punishments which had no effect in preventing the repetition of crimes, or promoting the amendment of criminals, he would strongly recommend the general establishment of the system of penitentiary houses-not only with respect to this case, but to many others; he could not help considering the severity of our penal code as inconsistent with justice and humanity, as a disgrace to the character of the country. So much indeed was his right hon. friend, now no more (Mr. Pitt) persuaded of the rectitude of this opinion, that to his knowledge that distinguished person had it in contemplation to commit the whole of our penal code to the revision of some able lawyers, for the purpose of digesting a plan to lessen the sanguinary nature of its punishments, and the knowledge of this circumstance ought to have considerable weight with those who respected the opinion of that great man. To the able and eminent lawyer who had undertaken this revision, and who had brought forward the bill under discussion, he for one would declare, as he felt the most unfeigned thanks, and he could not avoid adding the expression of his regret, that his hon. and learned friend was not in his benevolent undertakings more adequately supported.

Mr. Solicitor General cordially agreed with his hon. friend, that the law of the 19th of the King, which, though dormant, would not, he hoped, be inefficacious, and which provided for the amendment of criminals by their confinement in penitentiary houses, ought to be put in force, in order to prevent the contagion of vice, and to render it practicable for a criminal to come out of confinement an amended subject and capable of returning to an honest course of life. His hon. and learned friend, in whom the discussion originated, contended that the present law, by holding out the punishment of death, augmented the evils which it professed to diminish. With all his respect for his hon. and learned friend, he must say that his own experience, confirmed by the opinions of those who were the best qualified to judge upon the subject, was directly the reverse. Would any one state a case in which a prosecutor had been deterred from proceeding for fear of bringing the criminal to a capital punishment? (Hear, hear!) It might be so; but until such a case was stated to him he would not believe its existence. If a prosecutor were desirous of avoiding the capital part of the

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