DWELLING HOUSE ROBBERY BILL. (Hansard, 29 March 1811)

§ Mr. Frankland

spoke in opposition to the second reading to the effect following:

Sir;—Although my hon. and learned friend, in conformity to the course of proceeding in the House, has only moved the second reading of the Bill, which respects stealing in dwelling houses; yet it will be recollected that there are now also on the table four other Bills, which equally seek to make important alterations in the existing laws of the country, and which equally stand for the second reading on this day; The one respects privately stealing in shops and warehouses: The other relates to thefis in ships, barges, and other vessels, at their ports of entry or discharge, or on navigable rivers; and to thefts on wharfs and quays adjoining. The third respects stealing of linen or cotton cloth or yarn, in buildings or grounds, where it is printed or bleached. Toe fourth Bill is applicable to Ireland, and respects stealing linen or cotton cloth or yarn from the bleaching grounds or workhouses, in that part of the United Kingdom. Of these five Bills, the first was, last year, rejected in this House, after a long and diligent discussion. The second was rejected, after a similar discussion, in another place. The third, although brought into the House last year, was never pressed to a third reading. The fourth and fifth have been presented this year, for the first time. Five Bills, upon such dissimilar subjects, would seem abundantly to manifest a settled purpose in the framer of them to endeavour to change the whole system of the law, as it respects mixed or compound larcenies. Indeed I am not left to conjecture on this subject; for my hon. and learned friend has himself distinctly avowed such purpose, as well by words, delivered in his place in this House, as by observations which he has communicated to the public on subject matter, not only connected with the purport of these Bills, but respecting other important features of our criminal jurisprudence. Such being the operation of those Bills, and such being the opinions and views of the framer of them, it would seem to become the bounden duty of those who seriously apprehend the evil consequences of such departure from the received and approved maxims of our penal administration of justice, not only to point out the inconveniences of the mealures immediately under consideration, but to assert broadly the character, policy, and advantages of the British system, 616 which, however it may have occasionally been exposed to animadversion, has, from time to time, received the considerate approbation of the most profound reasoners, and the ardent eulogies of the best and most benevolent of mankind—a system full of mercy, though seemingly severe, and in its effects producing less suffering and more happiness than other systems, apparently more lenient; but which in their real operation subtract more from the amount of human enjoyments, and add more to the sum of human misery.—I say this of its general character. There may be blemishes in it, as in all human institutions, most of them rather seeming than real, and which may easily be removed by appropriate remedies: and I shall at any time, be most willing to contribute my labours to assist in applying such remedies to them: but the wholesale mode of dealing with them, which is now proposed, will impair rather than improve, the whole of the fabric.

My hon. and learned friend has not suffered himself to be discouraged by the fate of his Bills in the last year. Acquainted as I am with the sincerity and purity of his motives, I have to admire a laudable perseverance, which to others, who do not know him, might appear like pertinacity. The wish, which he so strongly feels, to benefit the community, might abundantly have justified him in persisting again to submit these measures to the consideration of the House, or in adding others to them, which appear to him to be equally beneficial. Surely, Sir, when he again introduced them to our notice, it could not have been necessary for him to have assigned as a collateral motive, that the great lord Coke had recommended to every one, who should succeed in the profession, of which he had himself been so distinguished an ornament, to leave behind him some memorial of his knowledge and attainments in it. I should have thought that if my hon. and learned friend had wished to have acted in conformity to lord Coke's suggestion, he would in settling the manner in which he should pay this debt of gratitude to his profession, in selecting the description of legacy he would leave behind him, in shaping and modelling the bequest, he would be desirous to submit to posterity, he would have directed his attention to those parts and branches of the law, with which by his continued and connected studies, and minute and detailed, as well as ex- 617 tensive and enlightened practice, he was the best acquainted. I well know, that, in the early part of his life, the criminal laws engaged no inconsiderable portion of his attention; but I think I may venture to assert, that the ample space he fills in the eyes of his profession, the deserved fame he enjoys, is not derived from any acquaintance he may have with penal jurisprudence; but from that comprehensive and profound, and at the same time practical and minute knowledge, upon other and very different branches of the law, which, for a long course of years, has so eminently distinguished him in the court of chancery, of which he is so bright an ornament. Sincerely as I respect him, and no man respects him more sincerely, highly as I deem of his talents, learning, and varied attainments, yet I will nevertheless affirm that an acting magistrate in the country has, practically speaking, more knowledge of penal law than my learned and hon. friend. An acting magistrate knows how penal laws operate. I do not mean their mere bearings and workings in courts of justice: but how they operate upon the mind; how they interweave themselves with manners; how they school and educate the rising generation; how they form character.—And they do form character—national character. No nation on earth has so little of the petty and thievish propensities. Nothing but manners, growing out of laws, could have produced this effect, in a country where the mass and value of personal property is so immense, and where the eagerness of commercial rivalry surrounds us on all sides with temptations, wherever we tread, or cast our eyes. We display, we solicit, we allure by every artifice. He who tempts most, succeeds most. How could this magnificent display, the delight and ornament of this mighty metropolis, how could this continued allurement be resisted, even to the degree in which it is, unless by the silent workings of a system of laws, which, in cooperation with the moral code, had, from early childhood, formed the manners and character of the people? In other countries there is comparatively little temptation to theft. There are, I know, some persons, who affect to doubt whether the holding out these allurements is not itself criminal, and they would extinguish the lustre of our shops, and the interesting display of the works of art, and of the gay and variegated fabrics of our 618 manufactures, and would have the streets as dark and gloomy as those cheerless imaginations, which sometimes seem to blind the eyes of man to the beauty and beneficence of nature, and of nature's laws. But, Sir, let us recollect that British laws and British institutions nurse up virtue. Persons bred in another school of manners, would sink under temptations which we resist. If under other systems there may be less temptation, or less crime, let us observe at least which system produces most manly and generous sentiment, most public and private happiness. I repeat again that the workings and bearings of penal laws, upon the mind and manners of the people, is practically better known to an acting magistrate, than to my hon. and learned friend, whose attention is painfully and continually, though most usefully, and honourably employed on subjects of a different description. And feeling as I do the extreme importance of the practical knowledge of practical men upon such a subject, as the one now under consideration, I have to regret that these Bills should have been pressed forward upon our attention, when such men are in their counties, engaged at their quarter sessions or on grand juries, or in the discharge of other practical duties of a similar description. For my hon. and learned friend, having selected and shaped (in compliance with lord Coke's suggestion, though not, as seems to me, in exact conformity to it,) the description of the legacy, which he is willing to have appreciated by the House, before he transmits it to posterity, has un-fortunately introduced it, and put it on the table for us to look at, and handle, and weigh, when (hose are absent, who are the best judges of its value. Last year his intended bequest was considered as likely to prove rather a burthen, than a benefit: and now, when with a kind of generous importunity he would seem to force his donation on the reluctant, I do regret that we have not the assistance of those, who might be best able to express their gratitude for the gift, if they found it valuable, or, if they found it otherwise, to defend us from any inconvenience which might arise from it. Seriously, Sir, what has happened, that has occasioned all this stir and bustle upon this subject? Have any of these magistrates, whose absence I lament, transmitted their representations? Has any description of magistrate whatever, subordinate or superior, moved on the occasion? unless it has been for the purpose of anxi- 619 ously expressing his dissent to the measures proposed, and of deprecating their adoption. Would not any one imagine from all this activity and clamour, respecting the alleged severity of the British laws, that something had lately happened? that something had met the eye, or shocked the feelings? That something had compelled us to reconsider the policy of our system of criminal jurisprudence: That some miserable waste of human life had been observed? Multiplied and useless executions? Pitiable examples of youth and age led fruitlessly to death? Increased human suffering, and no corresponding benefit? No, nothing of all this, but the contrary. We find the country rapidly increasing in wealth and population: no sense any where either of property having become insecure from the over-whelming effects of crime, nourished by impunity, or a suggestion from any quarter, that our population is cut down, or kept back by multiplied capital punishments. Are we then to repeal laws of long standing, merely because, upon ordinary principles of legislation, severe laws are to be avoided? The House, I am sure, will deeply feel that to repeal existing laws is very different from enacting new ones. The same arguments, the same course of reasoning, which might be sufficient to dissuade the passing of a law, are far from sufficient to induce the repeal of a law, when once enacted and interwoven with our manners. Such repeals tend to unsettle the opinions of mankind; to disturb received ideas as to guilt. "So then the stripping, plundering, rifling, pillaging, and gutting a house, is not so bad a thing as I thought. I thought it was a hanging matter. But the parliament gentlemen, I find, have got pleasanter notions about all this. I am very glad of it. I always thought some people had more good things than they ought to have, and that you and I had too few. Well! to be sure I have no house to be plundered; but then my neighbours have plenty." That such are the effects of repealing laws, in respect to unsettling opinions, and disturbing received ideas of guilt, is not matter of conjecture; but was last year matter of general notoriety, when the Bills of my hon. and learned friend were under the consideration of parliament. Owing to a misapprehension, it had been imagined that the Bills had actually passed, and the speculators were immediately on the alert. Not the descrip- 620 tion of speculators who had urged or promoted the alteration which was supposed to have taken place: but the speculators, to whom the new system immediately applied. It was a matter of notoriety at every office of police, and to every person whose duty it was to keep his eye on such scenes and such characters, that there was as much activity, and as much expectation, and calculation, and preparation among these hopeful speculators, as some new operation of finance would have produced at Lloyd's or on the Exchange, among speculators of still another description. Sir, it is this tendency, which the repealing existing laws has to unsettle the opinions of mankind, that has in all countries, and in all ages, produced a general indisposition to change systems, under which the society had for any length of time acted. 'Nolumus leges Angliœ mulari' has been said in this country, not only without reprehension, but with applause. The sentiment, however, is general among mankind, except in times of occasional effervescence, when things are coveted because they are new; their novelty alone being sufficient to recommend them. This sentiment may, of course, be carried to excess like all other valuable sentiments; but its general tendency is most beneficial. To young, ardent, and inexperienced minds, this disposition of mankind to leave things as they are, seems very dull and very stupid; and we all of us remember, that sanguine period of life full of hope and confidence, when there was scarcely any possible subject which we did not fancy we could improve by cutting and carving it according to our fancies. There is in young minds, a kind of astuteness in observing seeming imperfections, incongruities, and inconsistencies. They are good judges of approaches to ideal perfection on paper and parchment, or of departure from it. But it is long before they discover that every thing is referable to happiness: and that happiness is produced by-continuing to act even under imperfect systems, than by continually unsettling the opinions of mankind, and the maxims and rules of their life. The great and mighty art of wise nations has been not to change the system of their laws, according to every fluctuation, which time and the ever-moving scene of the world urge backward and forward continually, and without a pause; but so to qualify and adapt these systems, to altered circumstances, as to preserve at once the sanctions which deter from evil, 621 and regulate the application of them according to the exigency of occasions. This course is the most beneficial to mankind. When laws have so operated as to have formed the manners and character of a people (which is their true and most advantageous operation) and the conduct of men habitually, and as it were unconsciously, conforms itself to their enactments, it would seem to the unthinking that such laws have become unnecessary, and might well be struck out of the code, as the sanctions are never enforced. But it has been found that the repeal of such sanctions, instead of accelerating the progress of society to a more improved state to which it was advancing, has a tendency, by disturbing received ideas, to arrest that progress, and by a re-action, to make men fall back again and retrace their steps to that less perfect state from which they had advanced by long and painful efforts, and from which the operation of the repealed sanction had so successfully withdrawn them. By such a system of repealing sanctions, the moment they cease to be practically enforced, men could never maintain the advantages they have won in their conflicts with evil. You force men forward from crime by the fear of punishment: when you have so worked upon and fashioned their minds, habits, manners, and character, that the fruits of your labours begin to appear, you relax one of the most operative causes of your success, and permit them to fall back again to the point from which they had set out. Thus sanctions are introduced, sanctions are enforced, sanctions are effectual, sanctions are not enforced, sanctions are repealed, crimes are re-committed, sanctions are re-enacted, sanctions are re-inforced. And thus we labour in vain, in alternations of misery; and by our unskilful attempts to obtain a supposed greater degree of good, we produce greater evil, both in progress and result. It is on these accounts that wise nations do not alter systems, but they adapt the application of them to times and circumstances. It is incorrect to say, that the practical mode of our administration of penal laws, qualifies and mitigates the imperfection of them. This is not a correct view of the subject. Those who have to administer the law, do not apply that part of the law which is inapplicable; but it is important to retain that part of the law which is inapplicable, lest it may become applicable, or lest altered circumstances may require its application. 622 However ameliorated the state of society may be, however far advanced and improved in its condition, moral and physical, however little it may seem to require the application of severe sanctions, yet we must always recollect that when we use the word society, it is but a phrase, a necessary phrase indeed for the purpose of making our reasonings on such subjects intelligible to one another. But we should never forget that the materials, of which society is composed, are but separate individuals, who are born and die, and who succeed one another in their generations. All have to pass through the helplessness of infancy. All have to pass through the fearful period of childhood and of early youth, when the passions are to be subdued, controuled, directed; the reason to be awakened, cultivated, informed; the appetencies to be regulated; the habits, manners, character, to be moulded and fashioned after the models of the fair and the good, and the seeds to be sown of the higher virtues. What a mighty task is this! What aids cannot but be wanted forperforming it! Every thing is requisite—laws, institutions, labour, learning, beneficence, zeal, love. Even with these aids, how often do we fail in obtaining the wished for fruit. The plants perish, of grow awry, and perverse. Even if we succeed, how endless seems our labour. As soon as one portion of the individuals whose aggregate constitute society, is fashioned and instructed, another succeeds, which equally requires the same instruction. Still no progress seems to be made; another, and another, still succeed, demanding the same cares, attentions, and labour. While we speak, while laws instruct, direct, regulate, one generation passes away, and another springs up: and while we continue our efforts, wave follows wave in ceaseless succession. And we have too often, I fear, to preach to the waves in more senses of the phrase than one. Can we wonderthen, that life should seem to be one perpetual struggle against something that pulls us back. That we are continually hoping to obtain a good which escapes our pursuit. That we seek one thing, and find another, and that the actions of men seem little else than a series of illusions and disappointments: or that nations which seemed to be in the most ameliorated state, at once prosperous, happy, and free, seeking, by taking off restraints, or by other unskilful means, to improve their liberty and happiness, should 623 suddenly revert to a degraded state, and find they had only taken so many fearful strides in the high road to despotism and misery. Let us not be too confident. 'Facilis descensus.' It is often only necessary to take out a single peg, for the wheels of the mighty machinery of a nation's happiness to run back, and the accumulated fruits of ages to be dashed to pieces in a moment. Wise nations have therefore never admitted material alterations in their laws and institutions, without the clearest and most entire conviction of the benefits to be derived from such alteration; unless the advantage to be obtained was so obvious, that no man could doubt on the subject. Not advantages in speculation, about which men disputed, and argued, and reasoned; but advantages which every man could feel and understand. For ideal perfection is not the end and object of laws and institutions, but human happiness: and it will be found therefore, that no alterations have ever produced happiness in the frame of human society, but such which (according to the law of nature in the external world) have been so gradual as scarcely to be perceptible. And it will be found also, that attempts to make material alterations in the penal code of any nation, from the speculations of general reasoners, have always produced national evils, instead of increased happiness. But, Sir, I pursue these contemplations too far. They are not, however, without their application. We are too apt to consider society as a fabric which we can build up and complete, and then pull down the scaffolding and enjoy. I fear this scaffolding must always stand: not for repairs; but because we are always building, and our work is never done. One set of bricks which we had fashioned and adjusted, are crumbling away and falling out, while we are framing others to supply their place, and which will soon crumble, and perish in their turn. I have been very anxious to impress upon the House the deep conviction I feel of the important distinction, between repealing existing laws of long Handing, and of enacting new ones. The principles I have stated are like all moral, legal or political principles, general, and not universal. They have their exceptions The great nicety is in eliciting and ascertaining these exceptions. But one principle is universal, that if an inconvenience is felt, not imagined, the remedy should extend to that inconvenience and should 624 not go beyond it. These are not very encouraging topics, not very comfortable, or consoling to the vanity and presumption of our nature. They are not topics which would make one at any time much disposed, or, in particular good humour, to entertain any project, for any repeal of existing laws, however well considered; particularly to entertain a project which had been rejected by parliament in a former year; a project too which is introduced again to our consideration, at a time, when those who are the best judges of it, are absent; and when those whose duty it is to give their continued undivided attention to the subject matter of it, anxiously deprecate its adoption. But, Sir, notwithstanding all these varied and multiplied circumstances of discouragement, it appears to my hon. and learned friend, that something has actually happened, and lately happened to inspire him with confidence, and a confidence well founded, as it is derived from experience; something, which, even more than lord Coke's suggestion, urges him to persevere. My hon. and learned friend, when he first, this year, introduced those Bills into the House, observed, that, though he had failed the last year in procuring them to be passed into laws; yet there was another Bill, upon which he had succeeded. A Bill which repealed the statute of Queen Elizabeth, which took away the benefit of clergy from, persons stealing privately from the person. He stated, that the beneficial effect of his success was already apparent. As the law had before stood, there bad been few committals or prosecutions for such offence; but now he had the satisfaction to inform the House, that committals and prosecutions had increased, and he doubted not but that abundant convictions and punishment would ensue. He seemed to speak with the exultation of a Chancellor of the Exchequer opening his budget, and amplifying the advantages of some new arrangements. The theme of praise was, increase, abundant produce, plentiful supply. He did not quite boast in the usual strain on such occasions of an accelerated ratio of improvement,—that the last quarter had been singularly productive,—. and so forth; but he distinctly gave us to understand, that, if the present Bills should pass, and his improved system of management should be thus extended to other departments of depredation, to houses, shops, ships, barges, lighters, wharfs, 625 quays, and bleaching grounds, he was persuaded the same beneficial results might be expected—a happy multiplication of committals, prosecutions, convictions, and punishments, and a mighty congregation of constables, witnesses, prosecutors, criminals, juries, and magistrates, perpetually at work, adding new lustre to the glories of their country, and new energy to its productive efforts. Sir, I will not glance at the fallacious grounds of his exudations. I will not hint that there may have been more committals and prosecutions for picking pockets, because there have been more pockets picked—a fact, indeed, not merely known to the officers of police, but I believe, to every man who hears me. It is a matter of common conversation in every street, that since my learned and hon. friend has succeeded in carrying into effect his new system of management respecting pockets, gangs are forming, and the system, for effecting depredations on the person, visibly ripening. But I pass over the fallacious grounds of his exultations, and I will say generally, that a system of penal jurisprudence, which should have the effect of busying a large mass of the people in criminal prosecutions, misemploying their time, their thoughts, and lessening their productive labour, would be the greatest of curses, and not a blessing. I say this, even if such a system had a tendency to lessen the number of crimes, which I deny, I say it would be buying exemption from crime too dear. I say such a system would be a curse in any country: but in this country it would be the most transcendent of all evils. In despotic countries mild laws may have place; in such countries prosecution, conviction, and punishment are but a word and a blew: but for us to keep the complicated machinery of our jurisprudence in perpetual motion, a mighty apparatus necessary for the security of our liberties, would be a much greater evil, than the one intended to be removed.

It would really seem as if gentlemen imagined that the end and object of law was punishment. The end and object of law is the prevention of evil; laws are a terror to evil-doers; the basis of wise laws is the maxim—metus ad omnes, pœna ad paucos. Indeed, so erroneous is it to imagine, that wise laws are evidenced by the multitude of prosecutions, convictions, and punishments, which grow out of them, that the very opposite is the truth. The perfection of a penal law would be, 626 that it should never be executed, that the terrors alone should be sufficient to prevent the evil, that the fear should be so operative on the minds of all, that the punishment should extend to none, that the result should be, not only, metus ad onmespœna ad paucos; but pœna ad nullos. But these things are impossible, human infirmity permits not such results. Laws, however, are erroneously said to be a dead letter, merely because they may not have been enforced by prosecutions, convictions, and punishments. Such laws live in the manners, habits, and opinions of the people; they live in the rules and maxims of their life; the silent, invisible operation of the law is much more effectual for good, than the busy and bustling activity, which would keep them always in sight and in motion, working away in courts of judicature, in the midst of the buz and dust of prosecutors and constables, witnesses and, juries, magistrates, and spectators.

Though laws operate principally by the silent and invisible working of the terror of their sanctions, yet the nature and amount of this terror, the nature and amount of the punishment threatened, must depend upon circumstances. A punishment can never be too mild, provided it answer the end proposed, which is the prevention of some description of action, materially prejudicial to the community; I say materially prejudicial: for actions, only slightly inconvenient to the community, ought not to be the object of penal laws, but should be left to the controul of manners and morals; for by subjecting them to punishment, (and in order to prevent them effectually, severe punishments might perhaps be necessary) the very amount of the punishments themselves might subtract more from the amount of human happiness, than would be subtracted by permitting the inconvenience intended to be prevented. But where the nature of the action would materially destroy the well-being of the community, the sanction of the law must be such, as may be necessary to prevent such actions; for human laws proceed from human necessities, and are not referable to abstract ideas of justice, or to any supposed scale of proportionate retribution of so much suffering for so much guilt. Indeed, the legal code, and the moral code are not only different, but contrary. In foro conscientiœ, the greater the temptation, the more venial the offence; in foro humano, the greater the temptation, the greater must be the pu- 627 nishment, to deter from the action. We must all remember when first these subjects were brought under our consideration, and before we understood that human laws proceeded from human necessities, how much we have been shocked at the seeming injustice of human laws; we find actions punished by the severest penalties, which are no moral offences at all.

In truth, the subject matter of the two codes is different. The moral code respects the agent, the legal code the act. The agent is justified by his motives, though the act is injurious; but the act, if materially injurious, must be prevented by punishment; though the doer of the act, as far as his motives are concerned, may, in foro conscienti, be deserving of praise rather than punishment. Such person is not punished, because, according to the phrase which is so often misused and misapplied, he deserves punishment, but because it is necessary to prevent the sort of action which he has done. In no case whatever under the mere human code, is punishment, however slight, enjoined or inflicted, because the person doing the act deserves the punishment. But whenever the human tribunal, in the application of the legal code, by calling in the aid of the moral code, is able to adapt the degree of punishment to the moral guilt of the agent, it is very soothing and, consolatory to our minds.

But, Sir, though human laws proceed from human necessities, human tribunals should be so constituted, as to be able to avail themselves abundantly of the aid of the moral code. And yet it is singular, that those who have speculated most upon the improvement of penal laws, should so far seem to forget the end and object of all laws, which is happiness, as to endeavour, by excluding discretion, and by antecedent definitions, to banish the moral code, and render the legal code all in all. This is indeed to enhance the evils of human laws, which, growing out of human necessities, depart from abstract ideas of justice. If a man is within the letter of the law, under their system, which vainly attempts prospectively to define every varied form and quality of each act, he must suffer the penalty. Nothing is entrusted to wise and good men. Even pardon is excluded from the theories of those speculators, who considering pardon as a dispensing with the law, would tear this jewel from the British crown.

Under the British system, the human 628 law is qualified in its application by the moral law, so that it falls with severity on those only, who, morally speaking, are fit objects of it. Thus, human law and justice go hand in hand. The other system is founded (as has been well observed) in "unenlightened presumption," and would, by its unskilful attempts to improve human laws, banish justice from human tribunals.

There may be, indeed there must be, cases, in which human necessities must compel the moral code to depart from the human tribunal, and the dread sanction of the human law must be enforced on him, who, as a moral agent, may little deserve punishment. These are fearful contemplations, which oblige us to harden our hearts. Our reason approves, but our eyes weep. I have deep and trembling sensations on these subjects, but I cannot express them. No image to my mind is so awful, as that of man sitting in judgment upon man. Though imperious necessity stares me in the face, and commands the dreadful duty to be performed, I still exclaim, who are we that we should judge one another? I feel beat down and overcome by the sense of human infirmity, of human ignorance, and of our miserable, narrow, and imperfect views. Nothing supports me, nothing consoles me, but a trust in the other and mightier principles, in the other and mightier wisdom, in the other and mightier means, which govern the affairs of men.

Sir, if the year which has passed over our heads, has encreased the motives of my honourable and learned friend to persevere, in again submitting his Bills to the consideration of the House, it has encreased also my conviction of their inexpediency. The year, which has passed, has not only enabled me to reconsider my former opinions, and the grounds of the part I have before taken on this subject; but it has offered new and most valuable matter, to my consideration. The Chinese penal code is new subject matter offered to the contemplation of all Europe. It is impossible to praise too much the meritorious assiduity, and the almost incredible labour by which such a work has been added to the literature, and to the legal, and political materials of the western parts of the world; nor can I too strongly recommend to the perusal of those, who hear me, the admirable, profound, and enlightened comment on this code, in a deservedly admired periodical work, published at Edinburgh, not many months 629 since. In that excellent comment, the excessive and unprofitable accuracy and minuteness of the regulations of the code are very ably exposed, as well as the constant desire to regulate every thing; to interfere in every action, and to fix immutably, before hand, the effect of every shade of distinction, which a case may receive from its circumstances. By this code, the whole actions of a man's life are submitted to the controul of government: the legislator, seeming to forget the suffering and debasement, that was to result from the destruction of individual freedom, and seeming only to think of permanent controul and complete superintendence. The commentator most successfully points out the absurdity of the minute and anxious attempts at accuracy in distinguishing cases and proportionate punishments; and observes, that these minute regulations have their origin in "unenlightened presumption:" experience proving, that the exact apportionment of punishment is unattainable, and not even worth attaining. In almost all cases, he says, of variable delinquency, the law need only fix the maximum of punishment, leaving it to the judge to give effect to such circumstances of mitigation as may arise: all beyond this is "foppery and childishness." He continues, however, to observe, that it is not a little remarkable that this exact adaptation of pains to offences, (which we have seen is always attempted in ignorant times, and abandoned in those enlightened,) is recommended by Mr. Bentham. But I will not detail further the admirable observations of this commentator, but will venture generally to recommend the whole comment to the perusal and consideration of those who hear me. Sir, I will venture also to recommend to the perusal and consideration of gentlemen, another excellent comment in the Edinburgh Review of April, 1804, on Mr. Bentham's "Principles of Legislation, published at Geneva, in 1802, by M. Dupont." The commentator observes sarcastically, that M. Dupont is persuaded that this publication must make an epoch and a revolution in the science of which it treats. Indeed, every body now seems desirous of creating new eras, and introducing new systems of logic, ethics, and legislation. But I will not go into the details. The commentator, however, well observes that there are innumerable cases, in which the advantages to be gained by the commisson of the crime, are incalculably greater than the evils to 630 which it may expose the criminals; and he ridicules Mr. Bentham's idea of exactly apportioning punishments, and thinks "our undistinguishing grossness better than such foolery." Our undistinguishing grossness may perhaps be the effect of our foggy and impure atmosphere, and suited to it: and Mr. Bentham's work may be better suited to the pure air and more wild and romantic scenery of the country in which it was published; a country fitter for lofty speculations; a country, indeed, which afforded the first cradle, and first fostering care, to those effusions from Ferney and Moutiers Travers,^* to those aspirations after a greater good, and a more entire freedom, and to those attempts to refine, improve, ameliorate the supposed degraded state of society, of moral sentiment, and of law, which, in their operation, have spread misery over half the world, and, by their re-action, have enslaved the very country which gave them birth, and in which had been once found the stoutest champions of liberty. Sir, I also felt it to be my duty again to consult the works of Dr. Paley, and to reconsider his observations on these subjects. I would say something on them: but I have trespassed too long. I am very thankful, very deeply and sincerely thankful, for the indulgence which has hitherto been extended to me. I will not abuse it. There have been times, and there have been those,^* who could discourse on such subjects, not only without fatiguing the House, but keeping their attention alive in one continued stream of delight and admiration:—those times are past—those men are gone; and we are left to toil on in the dark, sorrowing, as well as we can. One thing, however, I must say, as to Dr. Paley, that I think my honourable and learned friend was perfectly correct in asserting as he has done, that what Dr. Paley calls the system of the British penal code, was not a system in the ordinary sense of the word; but grew gradually by detached acts both of legislation and of administrative jurisprudence, to be what it now is. But, I am ^*Residences of Voltaire and Rousseau in Switzerland. ^*When this Bill was last year under the consideration of the House, viz. May 1st, 1810, Mr Windham defended the doctrines of Dr. Paley in a speech of great length and unrivalled ability. He died the beginning of the next month. 631 persuaded that if gentlemen will consult Dr. Paley, they will find that he does not use the word system in the limited sense of the word; but he speaks as he was an artist, contemplating the work of art, and he points out those features of our criminal jurisprudence, which, he conceives, characterise and distinguish it.

God forbid, that British laws, or British institutions, should ever be supposed to have grown out of preconceived systems; nor should ever, at any time, be cut and carved so as to be squared to any man's preconceived systems! The moment we so deem of them, or so dabble with them, our liberties and happiness are at an end. Sir, it is not necessary for me to contend, that there may not be other systems more effectual for the prevention of crimes, than the one adopted in this country; nor is it my purpose so to contend. Indeed, I believe that other systems are more effectual for the prevention of crime. I only say that if in this country, there is little preventive justice there must be much penal. I even admit that preventive justice is more operative than penal. In countries, in which have been introduced the patria polestas, the domestic jurisdiction of the heads of families, multiplied tribunals, spread without a gap throughout the land, justice brought, as it has been called, to every man's door, a well organised, powerful, armed, vigilant and indefatigable police, the perpetual superintendance of authority, public and private, every where on the watch, with eyes that never sleep, so that no man is for a moment out of the sight and influence of those who have controul over him. I am indeed ready to admit, that in such countries, there may be few crimes. But we buy exemption from crime too dear, if we purchase it by the loss of happiness and virtue. We may be so swathed, and swaddled, as not to be able to commit crimes. Destroy the free action of our limbs, put us into leading strings, and give us the go-cart, we may-have few vices and few crimes, and may become a very pretty behaved and contemptible people. Under such a system of preventive justice as I have described, a system of penal justice might be expected, to be found more conformable to those characteristic features of that more perfect criminal code, which we are all able to conceive in our minds, and on which the theorists so frequently insist. We might well expect to find punishment more mild, more definite, more 632 proportionate, more certain, and more speedy. No man can be less disposed than I am, to undervalue the works of the theoretic writers on these subjects. In many instances, I greatly admire and applaud their labours. I have read much of their reasoning with delight and instruction. Such contemplations sooth, cleanse, and refresh the mind. We seem to breathe more sweetly and freely, when no longer in faœ Romuli, sed in republicâ Platonis. I do not complain of the theories, but of the misapplication of the theories. These theories find their way, from the speculative works of the abstract reasoners, even into the petitions which now lie on the table of the House. There are two petitions now on the table, from two different bodies of manufacturers, residing in parts of the united kingdom very distant from each other. The one is a Petition from the master calico-printers in the vicinity of London; the other from the proprietors of bleaching grounds in the north of Ireland. The petitioners are divided in local situation, but not in sentiment; for both petitions are word for word the same. Both request us, in due conformity to the theories, to substitute certainty for severity of punishment. They seem to think it is only necessary for them to ask for us to give: and most happy should I be to comply with the request, if it was in human competency to grant the boon. It may be perfectly true, as a theory, that certainty of punishment is more efficacious than severity. Assuredly, if every misdeed was sure to be punished, it would not be necessary that punishment should be severe; and the certainty of an adequate punishment might alone be sufficient to repress the offence. But how can this be in human affairs? If when I stretched out my hand to do evil, an invisible hand smote me, it might not be necessary that it should strike hard, or strike often. If, from the perversity of my passion, I should still persist, and the blows were to become more frequent, and more severe, I am nevertheless willing to hope, that mild and certain chastisement would be abundantly sufficient to keep me within the path of my duty. But, in human affairs, where is this invisible hand? How can we secure certainty of punishment? Certainty of punishment implies certainty of detection, certainty of prosecution, certainty of sufficient legal evidence, and of witnesses disposed to give it, certainty of conviction, and of the 633 correct views and clearness of understanding of the Judge and the Jury, certainty in the disposition and intelligence of those to whom it is intrusted to qualify the operation of the laws. How, I repeat it, can we secure this certainty? Sir, I sadly fear that human laws, proceeding upon human necessities, and not upon abstract ideas of justice, must, to secure the end and object of those laws, compensate by the severity of their sanctions for the uncertainty of their execution. The magnitude of the threat must be proportioned to the uncertainty, and to the distance of the period at which it may be carried into effect, and to the degree of probability of its never being carried into effect at all. This uncertainty, this distance, must vary in different countries. Even in the countries to which I have alluded, considerable allowance must be made on these heads. We are not, in making these calculations, apportioning a certain degree of moral guilt. The man who suffers is often an object of pity, of the most lively compassion. He may create the most agonizing sympathy in his favour. Every body may wish he may escape, is well those who try him, as those who are spectators of his trial. As a moral agent, his guilt may be minute; as a moral agent, he may be spotless. His motives may have been meritorious, even sublime. Yet, from human necessities, which look to actions and not to agents, he may have to suffer. Even his father might have to pass sentence upon him. Does he then deserve punishment? As a moral agent, assuredly not. Nor does human law visit him, because he, as a moral agent, deserves punishment, no. Others must be deterred by his suffering from his action. He may die a martyr. He may go to his reward, under another dispensation. Was Manlius'son a wretch deserving death? Yet his death laid the foundation of that scrupulous military obedience, from whence was derived all the triumphs and glory of his country. Human laws must be so contrived, that criminals must feel that they will be losers. They must feel that crime is not a profitable trade. And without severe sanctions, it is not easy to conceive a more profitable trade. There are many cases where a criminal would be a gainer, even though detected and punished. But how enormous are his gains, when the uncertainty of detection, prosecution, &c. &c. is taken into account. 634 It is 500 to 1, that he is never detected. It is 100 to 1, that the legal evidence is insufficient, &c. &c. and 10 to 1, on many other events. These chances must be counterbalanced by a proportionate increase of the terrors of the threat. In free countries, these severe sanctions are the more necessary, from the jealousy which subsists, as to that perpetual superintendence and controul, which in countries differently constituted, lessens the number of crimes, from the nature of laws and from the elaborate and scrupulous process by which they are administered; from the nature of our manners, habits, character, customs, and opinions, severe sanctions have found their way into our code. We should not be very fond of the invisible hand, which should check the pen while it was writing, and not after it had written; and the hand, while it was acting, and not after it had acted, lest actions should ripen into crimes—destroying thus all free agency, and of course all the energies of virtue. These characteristic differences, in nature, mode of operation, and in immediate and remote effect, between penal and preventive justice, abundantly manifest themselves in the history of free states, where it will be found, that the lessening of penal sanctions has led to the multiplication of preventive means, and thus, by the introducing of maxims of jurisprudence, and modes of action unsuited to free states, by the gradual progress of human affairs, the character of the nation has altered and conformed itself to the change which had taken place in its maxims. So that the taking off of penal restraints, which would naturally seem to increase freedom and happiness, has in fact been found to have destroyed them both. Sir, I am well aware, that these observations which the House has to indulgently permitted me to submit to their consideration, do not all directly apply to the particular bill immediately before us. I am willing, however, to hope that they are not wholly inapplicable, or indeed of very remote application. But, when so many erroneous ideas are entertained respecting the human and the moral codes, when such a disposition manifests itself to misapply even the more valuable theories of speculative men, and when the whole frame and policy of our criminal jurisprudence has been called in question, in the arguments and reasonings which have been brought forward in support of the al- 635 terations proposed, it seemed to be the bounden duty of those who seriously entertained different views, after long and diligent meditation on such subjects, not to let their opinions remain in silence, but to add their feeble voice to the sentiments of those enlightened men, who, in a system of seeming severity, have observed the true elements of justice and mercy. Sir, the Bill immediately under the consideration of the House, seeks to repeal an act passed in the 12th year of queen Anne, which took away the benefit of clergy from persons stealing in dwelling houses, goods of above the value of forty shillings. Let us see what this statute of queen Anne is, on what inducement it was enacted, and what evil it proposed to remedy? The preamble recites, "Forasmuch as divers wicked and ill-disposed servants, and other persons are encouraged to commit robberies in houses, by the privilege as the law now is of demanding the benefit of clergy." Is this preamble false? It is a practical assertion of a fact made by practical men, and of a fact established by the experience of several years. The House will recollect, that, at an earlier period of queen Anne's reign, the law respecting the benefit of clergy had been modified, so that larcenies ceased to be capital felonies. Such an alteration in the law would naturally produce a great change in the minds of men: and the preamble of the 12th of Anne, to which I have referred, stales this alteration to have actually taken place. It states, that persons had been encouraged to commit offences owing to the alteration in the law; and therefore it revives the old system, as to aggravated larcenies committed in dwelling-houses. There is no theory in all this. It is the reasoning of practical men on matters within their knowledge. How happened it, that the alteration which had taken place in the ancient system, in the beginning of queen Anne's reign, had not lessened the number of crimes? Larceny had ceased to be a capital offence. Of course, therefore, prosecutors would not decline prosecuting; witnesses would not withhold their evidence; juries would not commit pious perjuries, &c. &c. Certainty had been substituted for severity of punishment.—But I wander—I will return to my statement. Our ancestors state plainly and distinctly, that the received ideas of guilt had been disturbed, and that persons had been encouraged to commit 636 offences, owing to the alteration of the law. Is this statement false? Even, if we were not much disposed to reverence the assertions of our ancestors, or the principles on which they acted, I repeat, is this statement false, or likely to be false? Is it not manifestly likely to be true? Now, what says the Bill on the table? The preamble of the Bill states, that the act of the 12th Anne "had not been found effectual for the prevention of the crimes therein mentioned." How is this general assertion to be established? Indeed what is the meaning of the assertion? It is said, that a certain law has not been found effectual for the prevention of a certain crime. Why! what law ever was? Is it meant, that there are more robberies committed in houses now, than there were in queen Anne's time, or in the time of George the first, and George the second? It would be very strange, if there were not, considering the great encrease of population, and the still greater encrease of houses, and in the amount and value of personal property. Is it meant that robberies in houses have ehcreased within the last ten years? It would be equally strange if they had not. The closer our population treads upon the means of subsistence, the more the channels for the outlet out of the fabrics of our productive labour are impeded, the greater the competition of labourers for employment, and the greater the necessities of those who cannot find employment at all, the greater, I fear, will ever be the number of crimes, and the less will it be found that any human law can be effectual for its purpose. I should be very unwilling to believe, that the habitual, almost uniform lenity, with which the law has been executed in late years may have contributed to the encrease of this offence. It will hardly be contended, indeed it does not appear to have been ever contended by any one, that cases of robberies in dwelling-houses, by the confederacy of servants, and other circumstances of aggravation, have not been, and may not readily be conceived to be, among the most atrocious of crimes. I will not put cases. They are too obvious. Is the law then too severe? Or do we not inflict, not merely hold out the threat of capital punishment, in cases, which, in point of moral malignity, are of a much less atrocious complexion? No, say the supporters of the Bill, we do not complain that the law is practically too severe. We say it is nominally too severe, but practically 637 not severe enough. It would not, indeed, be very easy to prove that its sanction is, even nominally, too high; if it is admitted that cases have occurred, and may occur, when such robberies would be among the most atrocious of all crimes, much more atrocious than those upon which capital punishment is uniformly inflicted. But I only state their argument. They say the law is nominally too severe, practically not severe enough. It is the practical result of a law, which gives its real operation. In order to make it practically more severe, we must make it nominally less severe. The criminal looks to practical results. In his meditations he reflects, that prosecutors decline prosecuting, juries acquit, judges mitigate, kings pardon, nobody is ever hanged. It might be observed, that this is rather a whimsical series of supposed facts; for juries could not acquit, unless prosecutors prosecuted; judges could not mitigate, unless juries convicted; and kings could not pardon, unless judges passed sentence. But let us imagine and admit the criminal to be moved and seduced by the instigation of a strange species of logic, and to arrive at the conclusion, that he may safely persist in his courses. What are the meditations of the prosecutor on this same notable series of supposed facts? He also reflects, juries acquit, judges mitigate, kings pardon—and what? That nobody is ever hanged?—No. He is seized with a fit of trembling, on arriving at the conclusion, that every body is hanged; and he, of course, declines to prosecute. So that from the same premises they arrive at different conclusions, the one that nobody is hanged, and the other that everybody is hanged, and thus the one, devoid of terror, continues his depredations, and the other, full of terror, forbears to prosecute. Supposing these premises from which prosecutors and criminals reason, to be correct, it would not be very easy, according to any theory of our passions, to explain how it happens that they arrive at such different conclusions. I do not limit my observation to the premises which I have stated, or to the manner in which I have stated them. But I wish gravely to observe, that supposing the criminals and prosecutor equally to contemplate the existing state of the law, and the mode of its administration and of its application, it would not be very easy to explain how they can arrive at such different conclusions. For 638 whether men are most disposed to believe what they wish, or to believe what they fear; whether in the lottery of good and evil, we expect more intensely to acquire the good or apprehend more intensely to incur the evil, the problem is equally of difficult solution. But the problem is not worth solving, for neither the criminal or the prosecutor do in fact so reason or so act. Prosecutors, naturally enough, are unwilling to prosecute, and happy to avail themselves of any pretence which may seem creditable. Men do not even enforce their civil rights by legal process. They acquiesce in civil injuries, injuries often of considerable magnitude, sooner than incur all the harrassing and uneasy circumstances of suits at law. But is the civil code therefore useless, because men decline to call it into action? Indeed it is much more conducive to the general happiness of the community, that men should occasionally acquiesce in evil, and should temporize, manage, mitigate, compromise, than that they should be always appealing to the contentious intervention of the law. I do not know that it would be an advantage to the community, that every crime should be prosecuted, and nothing left to morals and workings of men's hearts towards each other. So also as to witnesses. Witnesses keep out of the way in civil cases, as well as in criminal, from delicacy, indolence, pusillanimity; and they always endeavour to assign, and often succeed in assigning, some reason which may be creditable. With many, the dread of fatigue, inconvenient hours, bad air, confinement, weighs much. To some, the mere circumstance of appearing in court, all eyes and ears directed towards them, the forms of examination and cross examination, seem perfectly terrific. To all they an; very irksome and unpleasant. How frequently do we find prosecutors declining to prosecute, in cases of misdemeanor, and even in cases of great personal injury. Must we alter the laws respecting misdemeanors on this account? Witnesses here also conceal themselves. Even, while, the misdemeanor is being committed, they will turn their backs, run away, that they may not see what happens, lest they may be called as witnesses. In cases of simple felony, we all know how unwilling men are to prosecute, and how continually they decline so to do. The truth is, that the duty of prosecuting is one of the burthens imposed on individuals by the system of British jurispru- 639 dence; and none of us are quite so fond of our duties as we are of our rights. Indeed every man who has ever had the painful task of prosecuting, imposed upon him, must too well know, that it is not one of the pleasures of life. This is true, with reference even to the more opulent part of the community, and to those who may have leisure; but with the lower orders, the sense of the evil is aggravated by the expence and loss of time, the removal from their families, and other inconveniences.—These very irksome and uneasy circumstances apply equally to witnesses. Indeed they apply also in great measure, even to the jurymen, and to all who either preside, assist, or in any way attend the administration of the laws. And yet my honourable and learned friend hopes to increase generally, throughout the community, the sum of human happiness by multiplying the causes by which happiness is destroyed. The object of the Bills of my honorable and learned friend is to encrease the security of property, by lessening the amount of depredation on property. But property itself is but one mean of happiness, and it is in vain we vender that mean of happiness more secure, if, by so doing, we subtract a greater amount of happiness in another place by the operation of other causes. I, however, distinctly deny that his Bills would have the effect of rendering property more secure; for I am persuaded they would at once render property less secure, and men more miserable,—It should never be forgotten, that even a multitude of mild punishments might produce a greater sum of human suffering, and a greater diminution of human happiness, than a small number of severe punishments, without more effectually obtaining the end proposed, which end is the prevention of a species of action materially injurious to the community, and not an infliction upon the agent of so much Suffering, as a retribution of so much moral guilt. I am perfectly ready to admit that there may be prosecutors who decline to prosecute, and witnesses who keep out of the way from the motives assigned by those who support the Bill. We know that motives of this kind influence even large bodies of men, where external depredation is the subject matter of their reasonings, and not merely an internal depredator.^* This may be an evil. ^*Alluding to the opinion of the Quakers as to war. 640 It is, however, far from so great a one as is imagined, and it is counterbalanced as the law now stands, by more than a commensurate good. For it does not follow, because our system is such, as to induce many not to prosecute, that property is therefore less secure than it would be under another system, which should induce every man to prosecute, who happened to be able to detect a depredator and to possess sufficientlegal evidence against him. Nor, Sir, do criminals reason or act in the manner which has been imagined. As the law now stands, the person who feels the disposition working in his mind to commit the crime, endeavours to calculate the extent of his danger. He finds his views very indistinct. He seems ignorant of the objects which surround him. He finds every where confusion, uncertainty, and obscurity. A kind of darkness seems to envelope him. The terror of the law swells in his imagination. The haze magnifies it. He cannot measure its size or shape. When we know the extent of a danger, how much of our apprehension immediately disappears? Let any man look into his own mind on such a subject as this; or consult his recollections in childhood or in early youth, and he will find how much the laws have interwoven themselves with the other institutions, and the other means which have contributed to form and fashion his mind. I well remember the different sensation which I experienced, on first hearing, that for such an act, a person might be transported; but for such an act he might be hanged. The idea of being transported conveyed little terror; I was able to measure and comprehend it; but the other idea was indefinite and truly terrible. I even doubt whether the phrase, 'might' be hanged, did not agitate the feeling more, than if the phrase used had been 'must' be hanged. Be that, however, as it may, it is obvious, that, to young minds, on which the silent and invisible workings of the law are most operative, in the forming of habits, manners and character, when the spirit of adventure and love of novelty is ardent, the idea of being sent to new and distant climes conveys few terrors, even to those who are happily tied and connected to the society of their native soil. How little, therefore, can such an idea operate on those who are loose upon the world, It is one thing to present to the imagination of a boy, consequences, which seem to open to his view new and interesting 641 scenes of adventure, and a very different thing to present to his imagination, that last consequence, which awfully closes the scene of adventure forever. I confidently assert, that every man who hears me, will be convinced on this subject, if he will but take the trouble to look into his own mind, and consult his own recollections. Let us study ourselves, and commune with our own hearts: do not let us first create in our imaginations a new man, and then make laws to fit him. But if authority could be wanted, or necessary, on such a subject, I am enabled to state distinctly as a matter of fact, that criminals do so reason, so feel, and so act. I am enabled to do this, from conversations I have lately had with a person of that intelligence, that rank, and of that high trust, not long since, in our settlement at Botany Bay, and who has so lately returned from that country that his recollections are fresh on the subject. The House may not be aware, that, as the crown has its police officers and law officers for the security of persons and property, so also have those, who prey on persons and property, their public offices and law officers. They have their attorney and solicitor-general as well as the king. The general object of the questions, put to their learned advisers, is to ascertain, how such and such acts may be done, so as to avoid the operation of those statutes which take away the benefit of clergy. As soon as the bearing and operation of the law had been explained, and the several distinctions completely understood, and it was found that the project, if executed in a particular manner, would only amount to a simple transportable felony, the adventure was undertaken as a matter of course. They had calculated the amount of the danger, and were prepared. Their great reliance always was, that they should not be discovered at all, which their practice and dexterity rendered almost a certainty, or even, if there might be grounds of suspicion against them, that there would not be sufficient legal evidence. No branch of the law was more studied than the law of evidence. These were the great points to which their attention was directed, and, if the worst came to the worst, they knew they should only have to pay a visit to Harry, Tom, or Sue, or some old acquaintance beyond sea, who had so mismanaged their business as to have been stupid, and unlucky enough to have been detected, prosecuted, convicted, and transported. This was 642 the sort of language invariably held by all the convicts, with whom my informant had occasionally conversed on such subjects, during the time of his holding a public situation in that country. But he remembered having learned from one convict in particular, a whimsical anecdote, respecting great doubts, and difficulties, and discordancy in opinion, between their attorney and solicitor-general, and their other law officers, whom a gang, to which the convict belonged, had consulted, as to the safest mode of robbing waggons. All sorts of intricacies presented themselves, and perplexities, and distinctions (whether well or ill founded matters not) about robbing waggons on the highway, in motion, at rest, at inn doors, in inn yards, under sheds, or not under sheds, &c. &c. Nobody could understand the subject. Nobody felt certain what the consequences would be. What was the effect of this uncertainty, this confusion, this obscurity, of this unknown danger, of which they could not calculate the extent? Why, that the poor waggons escaped scot free. Nobody would venture to touch them. Such are the admissions, such the statements, and such the modes of reasoning, and of acting, of those miserable men, on whose minds the laws are to operate. And if the minds of those who are practised in depredation so reason, how much more so will the minds of those so reason who are for the first time meditating to depart from the path of their duty.—Such then is the authority of the criminals themselves. What is the authority of those, who from the nature of their judicial situations, have their attention constantly and practically directed to this subject, and who are almost daily in the habit of observing how the laws operate upon the mind? I refer to their view of this matter, as to that of spectators, who see the object nearer than we do. I do not quote their opinions, as authority, to govern or direct the conduct of the House. I appeal to them as witnesses. I refer to the evidence of intelligent, respectable and enlightened men. And feeling as I do, the extreme importance of ascertaining the opinions of practical men on these subjects, who have a closer and more continued insight into the operations of the criminal law than we can have, I am very anxious to be permitted to read, as part of my speech, certain Questions, which have been proposed to very able and experienced magistrates, the law officers of the city of 643 London, together with their Answers to these questions. I repeat that I do not do this, as if I was referring to authority, which ought to govern our conduct; but merely as to materials, which may contribute to enlighten our judgment.