HC Deb 29 March 1811 vol 19 cc644-61

"Is it advisable or safe to take off the capital punishment from shoplifting, stealing from ships, &c. in canals and navigable rivers, &c. and from a dwelling house, without breaking, and without being a burglary?

The Recorder.

"I certainly do not think it advisable to take off the capital punishment in the three cases alluded to, viz. stealing to the amount of 40s. in a dwelling house; the stealing goods to the same amount on a navigable river or canal, and the stealing goods of the value of 5s. privately in a shop. But whether any and what alteralion should be made as to the amount of the value of the goods stolen, might deserve some consideration.

The Common Serjeant.

"I am most fully convinced that the repeal of the 10th and 11th Will. 3, and of 23d and 24th Geo. 2, c. 45, would be very unadvisable and very unsafe. And, in the present depraved state of the domestic and other servants in the metropolis, I cannot possibly conceive any measure, more big with mischief to every private housekeeper, and to every tradesman, than the lessening the severity of the 12th Anne, stat. 1, c. 7."

Such then are the views which these intelligent and experienced magistrates have of this subject.

Sir, notwithstanding all I have said, notwithstanding all the general reasoning which I have urged, all the authority I have referred to in support of the main character and features of the British system of criminal jurisprudence, I am anxious not to be misunderstood, as if I confounded things most distinct in all reasonings on law, morals, and on all subjects of human contemplation, namely, general truths, and universal truths: or as if from my being deeply impressed with the general truth of the observations I had submitted to the House, I had rendered myself blind to every defect of our penal code, and considered every part of it as equally incapable of amendment. I am very sensible that many of the objections which have been stated, that many of the inconveniences which have been experienced, are well deserving of an attentive consideration. But I am equally persuaded that they admit of their appropriate remedies. The alteration which has taken place in the value of money, should be provided for, by a proportionate alteration in the law. I should have no objection to increase the amount of the value of the thing stolen, very considerably; so as to do away that disposition in juries and witnesses, to shut their eyes to facts, respecting the real value of the thing stolen. I am willing, in the case immediately before us, of stealing in dwelling-houses, that the amount of the value should be raised from forty shillings to forty pounds, if that should not be thought too large an increase. It should not be raised very high, for a criminal should feel that he is playing a losing game: and in cases where large sums are stolen, and dexterously disposed of, a criminal might be a great gainer, even though detected and punished.

I have also occasionally been disposed to think, that it might be an improvement in our law, to permit an election to the prosecutor, to proceed either for the simple, or for the compound larceny. This, in point of fact, is often permitted by a kind of indulgence. Compound larcenies are frequently tried at the assizes as simple larcenies, by omitting to insert in the indictment the circumstances which give the new character to the offence. It often happens, however, that during the trial, it appearing by the evidence that it was an aggravated case of compound larceny, the judge directs the indictment to be quashed, and a new bill to be preferred for the specific offence. That which has been done by indulgence, I have thought it might be expedient to permit to be done by law; I have been inclined to imagine, that this election so to be granted to prosecutors, would have several good effects: criminals would feel there was a double discretion; the discretion of him whom they might injure, and the discretion of him, by whom they might be tried. This feeling would produce a strong moral effect upon his mind; criminals who might sink under temptations, would still so act, as not to be unworthy, as far as might be, of the lenity which might be extended to them from either quarter. A man acting under such impressions, seems to be acting under a continued and indefinite controul, which softens and amends his heart, even in the midst of crime; The system which attempts to affix prospectively an exact punishment to an exact offence, antecedently endeavouring to define every shade of distinction which a case may receive from its circumstances, trusting nothing to the discretion of the wise and the good, and thus presumptuously making the human code all in all, hardens men's hearts, and destroys all moral sentiments. Criminals become sober calculators, and know how to measure and weigh, and appreciate the quantities on each side of their equation? Sir, I am not anxious to encourage the breed of these senior wranglers in crime. I submit this suggestion respecting the election to be permitted to prosecutors with great diffidence. I am aware of objections. But looking as I do to the, effects which laws ought to have upon the mind, I have been willing to communicate this suggestion to the House, as a matter perhaps not wholly undeserving consideration. It is indeed true, that, by-the law, as it now stands, much of this effect is already produced, and men al-ready feel that the severity of the law is never likely to visit them, unless their actions evince moral depravation, atrocious malignity, or confirmed habits of evil. It is this feeling which forms the character of a people. Laws, customs, manners, habits, character, act and re-act upon each other. They are fearfully and wonderfully blended together; operating at once, as both cause and consequence. Sir, our system has formed the character of the people. And what a people! Those can best speak of them who best know them. If our system of laws is different from other more admired systems, so also is the character of the people. And may it continue different! Oh! let us pause before we introduce changes, founded on new maxims, derived from other sources, applicable to other states of society, and supported by doctrines avowedly calling in question the whole frame and policy of our criminal jurisprudence. Do not let us think meanly of ourselves, or suffer others to imagine, that we are savage, unfeeling, ignorant barbarians, who know nothing either of the principles of legislation, or of the principles of humanity and justice. Are we to cast about for instructors on such subjects? We are a nation grown grey in the contemplation of moral, legal, and political truths. No country on earth has had so many minds, for such a series of years, engaged in such contemplations, and in attempts by every species of arrangement, moral, legal, and political, to increase the liberty and happiness of the people. How comes it then that our laws are severe? It is because we love freedom and happiness; because we are jealous of previous restraint and controul of our actions; because we wish to avoid the teasing vigilance of the perpetual superintendence of the law; because we would not purchase exemption from crime, by the loss of virtue. If, from the want of this superintendence and controul, crimes are more difficult to detect; if, from the nature of our modes of trial, and from the scrupulous and jealous exactness with which testimony is scrutinized, criminals are with more difficulty convicted, and we have been thus obliged to counterbalance these inconveniences by the terror of severer sanctions, such sanctions are the price we pay for our liberties. And cheerfully ought we to pay this price, even though we were convinced that, by other courses of action, we might have fewer crimes. But have we failed in obtaining the objects we have sought? We have every way attained them. We have formed the character of people, which I will not trust myself to describe, but which I trust I shall never live to see altered. Have severe laws made us cruel, or humbled or broken down our spirit? Are we a mean, creeping, overawed people? I never look at the people without feelings of respect, affection, and admiration, which overcome me. Kind, generous, magnanimous, resolute, yet full of compassion; with a courage dauntless and inexhaustible; but with hearts tender as the bosom of a dove. Let us look at the people and pause. Even with respect to that part of their character, to which the Bill now under consideration more immediately relates; I assert, that there is not on the face of the earth, a people among whom the propensity to thieve prevails so little; notwithstanding the immense amount and value of our personal property, which our commercial prosperity has amassed, and which the nature of our commercial habits and intercourse necessarily displays and exposes to depredation. Sir, I repeat that we have every way attained our object; we have attained at once the benefits of the terror of human laws, proceeding from human necessities, and the benefit of the moral laws, proceeding from justice. As in our political institutions, we have succeeded in uniting res ohim dissociabiles, imperium et libertas. So in our system of jurisprudence, we have succeded in uniting things full as difficult to reconcile, Lex et honestas. We have fashioned and taught a people to respect the law of the land, with out having at the same time weakened their sentiments either of honour or morality. Shall we introduce new maxims into our jurisprudence, and risk-altering the character of such a people? If we doubt for a moment, we ought to reject the measures proposed. We must not forget that we are repealing old, laws, and Hot enacting new. I earnestly conjure the House to pause, as they prize liberty, as they prize benevolence, and that real humanity which seeks by enlarged views to encrease the sum of human? happiness. I would conjure them to pause, as they love the people, as they admire, their character, and as they would keep alive for ever in their hearts, that lofty, fearless, independentspirit, the best fruit of; our liberties, and the surest foundation of, individual happiness, and of the nation's glory, prosperity, and power.

Sir John Ansrtruther

said, if he thought the motion of his hon. and learned friend contradicted any settled opinion, or encroached on any established principles of the constitution, he should be one of the last men to rise in its support. But he believed that neither he nor his hon. and learned friend were remarkable for any exertions of a mere political tendency against the ministers of the crown or the government of the country. The question before the House was of a very different nature, and perfectly unconnected with any considerations on the general frame and policy of the government of the country. Its object was not to innovate on the ancient principles of the law, but to bring back the law to the principles of its ancient standard. It was undeniable, that new penal enactments took place frequently, with very little attention or examination on the part of the legislature. New felonies were often created on the spur of the occasion, according to the prevalence of any particular crime. At times, one description of offences became more numerous than another, and the remedy applied to the circumstances of a certain period was generally left unabrogated, and operative in succeeding times, while fresh changes in the complexion of crimes were constantly calling for additional penalties. No one could look at our penal code on paper without shuddering, and the consequence was, that the practice was totally different. The object, however, of human punishments was to deter others; and it was the practice, therefore, that operated, not the theory of legislative provisions. It had been said, indeed, that the advantage to the public was in proportion to the magnitude and severity of the punishment of an individual. Admitting the policy of such a principle, he entertained very considerable doubts of its justice. But the policy itself was bad, and for this reason, that a law of extraordinary severity was seldom or never strictly enforced. The judge found himself impelled to interpose his discretion to mitigate it, because it was not in human nature to separate the consideration of the crime from all consideration of the person of the delinquent—His hon. and learned friend only wished to bring back the written to the practical law. It had been said that it was impossible to describe all the aggravations of a crime. This was true, a discretion must, in many cases, be left to the judges—but in his opinion, much more might be done towards extending the certainty of the law, and by that means diminishing the-cases in which the judges now exercised a discretionary power. The right hon. baronet then dwelt with great force of reasoning upon the pernicious tendency of the multiplied sentences of death pronounced in our criminal courts, while the spectators were perfectly assured that it was not intended to carry one out of the multitude of them into execution. It was also of the last importance that punishment should be proportioned to the crimes, that the people might never be induced to consider the criminal as an injured man deserving of pity for his unmerited suffering, rather than censure for his comparatively slight offence. Prosecutions might indeed, be more frequent for some time, because many would then be satisfied in prosecuting, as the punishment would be proportioned to the offence. But the number of crimes would be diminished, and this was the great object of law. The right hon. baronet concluded, by declaring that he would support the Bill.

Mr. Macdonald,

though an enemy to rash and ill considered changes, was far from being a friend to that indiscriminate hatred of innovation which extended to the prevention or obstruction of all improvement. It had been asserted, that persons who had been the chief sufferers-from crimes often abstained from prosecuting because by law the delinquent might be subjected to a punishment totally disproportioned to the crime. If this was really the case, it was a matter well worthy the attention of the House, and one which ought to be taken into immediate consideration. It had been said, that the same' motive which deterred the injured from prosecuting ought to deter the guilty from committing the offence. The cases were' widely different. The thief knew perfectly that very few were executed, though the law denounced death—one only out of a thousand. His wants might be pressing, the risk under these circumstances was small, and at any rate the punishment distant, while the gain was immediate. The person robbed of some trifling article might not be inclined to prosecute. The injury to him he might know to be trifling; but the consequences of a conviction he must be aware must be treble to the of-fender. It had also been argued, and he believed with truth, that juries had almost, from the necessity of the case, assumed a discretion which did not properly belong to them; and that judges were often anxious to get rid of that discretion. Indeed, the judges of this country were desirous of having as little discretionary power as possible. They consented to exercise such a power only because it was necessary for the public interest.—He next adverted to the mischievous tendency of the frequency of sentences of death, when all the spectators must be convinced that hardly one in a thousand would be executed. It was turning that into a solemn mockery, which might be a powerful engine for the prevention of crime; little less efficacious perhaps than public executions. This practice reflected discredit on the law. He would support the Bill.

Mr. Herbert

of Kerry opposed the bill.

Lord George Grenville

said, that exaggerated rigour uniformly defeated its own object, and there was a point beyond which its influence would not extend. To punish small crimes with death, therefore, was not only the height of injustice, but it was also extremely impolitic. What opinion would a stranger form of the humanity of England, when he was told that fifty years ago there were more than 160 offences punishable with death. If different gradations of crime, the small and the great, were to receive the same punishment, the greater crimes would be naturally resorted to.—He then proceeded to shew how inconsistent this severity was with the Christian morality, and the danger of lightly condemning a man as unfit to live, who might be more unfit to die. These severe punishments he said, had their origin in the feudal code. It was natural in times of ignorance, to recur to an indiscriminate severity. The most horrible punishment of those times, which was inflicted for parricide, &c. was now laid aside, but the secondary punishment of death for comparative trivial offences, still remained. The law, therefore, either had done too much or too little, in removing the one punishment and allowing the other to subsist. To those who dreaded the consequences of this repeal he would refer to the effects of the alleviation of punishment introduced into Russia by the empress Catherine. Those who objected to the repeal seemed to think that whatever is must be right, for if wrong, it must have been already discovered; and in this manner error was continued from generation to generation. Whatever fate this measure might have at present, he could not but congratulate his hon. and learned friend (sir S. Romilly) on the noble employment to which he had devoted his high talents. Sooner or later the cause he had advocated must triumph, because it was the cause of good sense, humanity and justice.

Mr. Abercromby

said, he thought the speech of his noble friend who spoke last, as well as the speeches of those who had preceded, partook too much of general discussion, and seemed rather to wander from the question. One would suppose that a new code was intended to be introduced, whereas the sole object of discussion was a short practical question, whether a law should remain which was almost never enforced, or whether the present Bill, which took away in the few instances where that law was executed capital punishment, was more expedient and advisable? It had been said, what opinions of practical men were there in favour of the Bill? He would say, that they had the opinion of all the judges, and all the jurors who had been in the practice of administering the laws for many years past, in their favour. Practice was therefore in favour of this Bill. It had been said on the other side, that there was no ground of complaint under the existing laws. The single subject of dispute therefore was, whether the disadvantages were such as to warrant the repeal of those laws, or whether the measure of his learned and hon. friend was more advantageous, and admirably calculated for the prevention of crime. One great disadvantage of the existing system was the disinclination of judges and jurors to execute the laws as painful to their feelings. It was mortifying that the people of England should remain so long subject to the animadversion of the people of other countries, either directed against the laws or the execution of them, and that foreigners should have it in their power to make Englishmen blush for those laws which put judges and jurors in such a situation that they could not discharge their duty. He held in his hands an account of the number of persons committed, tried, and convicted during the last ten years. It was unfortunate, however, that for the last five years, the numbers of those who were committed, and those tried, were not distinguished. This list afforded the most complete practical illustration of the disinclination to prosecute. To what other cause could the disparity between the commitments and trials be imputed.

Committed Actually tried
In 1802 107 79
— 1803 168 109
— 1804 135 59
— 1805 131 76
— 1806 128 56

This Return being official, certainly called on the House to consider the cause of this defection in the trials.—As to another point, he could add nothing to what had been already said, namely, that of the situation of the judges and jurors; but as it constituted a leading feature of the case, he should advert to it. When he recollected that judges and jurors were every session guilty of that for which they were certainly not punishable, but which, nevertheless, could go by no other name than that of perjury, he certainly did think, that some reformation was called for. He should unfold a case which was already stated last session—a case so striking, that it could not fail to make an impression. A female had stolen a 10l. note. The jury returned a verdict for below 40s. Nothing could afford a more striking illustration than this fact, of the inconvenience to which juries were subjected. Was it fit that they should continue subject to them? What opinion must a person who heard the trial, have formed, if next day he himself should have stood in the criminals' box for perjury? Except in a solitary instance, therefore, of one in a thousand, the laws were never executed. It would be found that in the course of the last ten years, 895 individuals were tried, of whom 155 were acquitted, and of the remainder 414 were found guilty of stealing below the value of 40s. He would ask any person, who heard him, if there was the smallest room to doubt that of these 414 people so found guilty, a very great number must have been guilty of stealing to a larger amount than 40s. The verdict, therefore, was contrary to fact. By repealing these laws a very great relief would be afforded to both prosecutors and juries. Prosecutors must be much more disposed to come forward when assured that the punishment was commensurate to the crime. When his hon. and learned friend first stated this disproportion in that House, to men supposed to be possessed of the best information, it appeared as a new fact, and excited a good deal of astonishment. Was it, therefore, astonishing, that those whose situation precluded them from that information, should remain ignorant of the leniency of the practice, and should feel the greatest reluctance to prosecute. The necessary and infallible consequence, therefore, of the repeal would be to increase the number of prosecutions, and the number of convictions; and the opinion would become generally prevalent, that punishment would follow the offence. The reasons opposed to this measure were contradictory; for, according to them, it was sufficiently known that the jury, the judges, and the king, mitigated the punishment in practice. Their theory, therefore, held out a punishment which it was known was not to be executed.—He could not conclude without expressing the sincere obligation which the country owed to his learned and hon. friend, not only for bringing forward the present measure originally, but persisting in it, notwithstanding the opposition he had met with. He had now the hope of being at last rewarded for his exertions; for there was evidence that he had made converts of many who had formerly been his op-posers; and although he might not be successful this session, yet he had no doubt that perseverance would at last crown his efforts with success, and render him one of the greatest benefactors of the country of which he was at present one of the greatest ornaments.

Mr. Morris

argued generally in favour of the Bill; and in support of that part of his speech which related particularly to the injurious effects of its being imperative on the Judge by the existing law, to pronounce sentence of death on a person capitally convicted, although he might not have the remotest intention of ordering that sentence to be carried into execution, mentioned an affecting incident which occurred some years ago on the Home Circuit, when lord Kenyon was on the Bench. An interesting young woman was tried for a robbery in a dwelling-house. It appeared to have been her first offence; and there were so many circumstances of extenuation, that the witnesses very reluctantly gave their evidence, and the jury still more reluctantly' their verdict of guilty. When lord Kenyon proceeded to pass the awful sentence of the law upon her, the poor creature, who had observed the previous interest which her peculiar case had excited, fell senseless at the bar. Lord Kenyon, who was a man of great sensibility, immediately cried out, in the most hurried manner, "Good woman, I don't mean to hang you, I don't mean to hang you.—Will nobody in the court tell her I don't mean to hang her?" This case made a great impression on himself, as well as every one present. He had frequently heard the same noble lord pass sentence, not only on the prisoner before him, but on the law. He most cordially supported the present Bill.

The Chancellor of the Exchequer

agreed, that it would be an important improvement on the law, if judges were not compelled to pass sentence of death on those who, at the time of passing sentence, they should be of opinion did not deserve a capital punishment. It would make a wonderful difference, however, if capital punishments were entirely to be removed out of the criminal code in every case connected with the objects of the different Bills now before the House. The case cited by the hon. gent. who spoke last was no doubt calculated to awaken the feelings of the by-standers, but it became the House, in their legislative capacity, to have firmer nerves. The hon. and learned gent. (Mr. Abercromby) had placed the question on its fair footing, namely, whether the alteration was, or was not, on the whole, well calculated to diminish the offences in question. He asked, on this principle, was the alteration proposed best calculated to prevent the offence now more peculiarly under consideration, in those degrees and shades of guilt which it was most desirous to prevent? Would not the severity of the punishment rather tend to check those deeper shades of criminality for which the severe punishments were always reserved? And would not the knowledge that the capital punishment was no longer to operate be an encouragement to the perpetration of those most desperate robberies in the dwelling-house, which alone were at present visited with the punishment of death? He could not agree, however, to the suggestion of his hon. friend (Mr. Frankland,) that an option might be given to prosecutors to lay their indictments capitally or not. as they chose. If this were the case, no offence would be laid as of a capital nature, unless from some improper feeling on the part of the prosecutor. As to the idea that the present measure would contribute to render punishment more certain, that he could not agree to, if by "more certain" was to be understood more defined, for, by the present measure, a greater latitude of punishment than that now in use was allowed. The unwillingness to prosecute, he contended, was not to be attributed solely to the offence being of a capital nature, but to the expence and trouble of prosecuting, and to other similar causes. He denied that the criminal code of the country was bloody; on the contrary, executions very rarely followed ascertained guilt. The right hon. baronet (sir J. Anstruther) talked as if the present measure was not an innovation, but was only bringing back the law to its original state. He would be glad to know what period of our history the right hon. bart meant. Was it the period between Henry the 7th and Edward the 3d, when murder was a clergyable felony? If there was any part of the system proposed by his hon. and learned friend (sir S. Romilly) to which he peculiarly objected, as being more capable of aggravation than another, it was that of robbing from the dwelling-house, which might be greatly aggravated by being accompanied by more of terror, breach of confidence, violence and danger, than were likely to attend on robbery on a river, in a shop, &c. He would suppose the case of a servant robbing his lady, when probably he was the only other person in the house, where it could not be accomplished without creating terror, or even inflicting violence; or, he should figure a case where a servant awoke his master in the attempt to rob him, and the only means that remained to prevent his becoming a witness against him was to add murder to the robbery. He conceived that the law should remain as it was, that it might prove a terror against the commission of the aggravated species of offences. He must, therefore, oppose the present Bill, whatever might be his course as to the others.

Sir Samuel Romilly

concurred entirely in the testimony that had been borne by every gentleman who had spoken on the subject, as to the ability and ingenuity with which his hon. and learned friend (Mr. Frankland) had opposed the present measure. He could not but observe, however, that his hon. and learned friend had been rathersevere upon him, treating him as one who, so far as the present subject was concerned, was to be regarded merely as a speculator, and not a lawyer—or as one of those dilettanti lawyers, who knew no more of the law than any other person in the country who had never made it his study. If so, and he was really so ignorant on this subject as his hon. and learned friend represented him, he was, indeed, extremely unpardonable. For fifteen years he had been in the constant habit of going the circuit in his professional character; he had been much employed in the criminal courts; and when not employed there, he had been in the constant habit of visiting them, and taking notes for his improvement in that branch of the legal code of this country. But that his hon. and learned friend should be so angry at those whom he supposed to be mere theorists, he confessed surprised him a little, as he could not help thinking that his hon. and learned friend dealt as much in theory as any man, indeed, the greater part of his speech was so dark and abstruse, that he must be excused answering it actually, because he did not understand it. His hon. and learned friend had said that all the judges were against the measure which he now presumed to press on the consideration of the House. He (sir S. Romilly) had no reason to suppose any such thing. He knew that he had the authority of the magistracy of the country in his favour, and he had no reason to suppose that all the judges were against him. He knew that he had the authority of one judge of high rank against him, having experienced his opposition to the measure in another place. He had now also against him, the authority of the Recorder and Common Serjeant of London, and he was glad they had given their reasons for opposing the present measure, as it gave him an opportunity of examining what those reasons were. They objected to the proposed alteration, but why? Because the offences to which the Bills applied, were offences which had greatly encreased and were now encreasing! Could there, he asked, be any greater objection to a law, than that the offence against which it was intended to provide was encreasing under it? If a person had a medicine administered to him, and a change of regimen was recommended, would it be enough to say, No, do not change the medicine, for the person is dying without any change? Or, would the chairman of the College of Physicians, when advising with the whole body as to the state of their practice, assign as a reason for adhering to the medicine and to the course of treatment in a particular malady, that their patients were coming to be cured, and were dying as fast as could be desired? If under the present law the offence had increased and was increasing, what a strange reason for objecting to a change? Of what nature, then, ought the change to be? They could not at this period of time go back to the wheel or the rack in search of a substitute for the present mode of punishment; and if they could not resort to a system of greater severity, why not seek for a remedy in a greater degree of lenity? If he (sir S. Romilly) had succeeded, two years ago, in procuring a change of the law in this respect, would not the increase in the number of culprits, which was now regarded as a reason why no change should take place; hare been attributed to the very change which had been introduced? The chances of escaping as the law now stood were multiplied to such a degree as absolutely to operate as a snare to the commission of offences of this kind. He admitted that the number of prosecutions for stealing from the person had increased since the passing of his Bill exempting the crime of stealing privately from the person, from capital punishment, but this was the necessary consequence, and shewed that the measure was likely to operate. It must necessarily, at the first, increase prosecutions and convictions, but when its effects were seen and felt, it would immediately lead to a decrease of the crime. His hon. and learned friend (Mr. Abercromby) had stated the disproportion between the numbers of persons committed and those actually prosecuted for stealing in the dwelling-house. If gentlemen would look, however, at the numbers committed for stealing in the shop, they would find that there the disproportion was still greater. The whole number committed for this offence in five years was 598; of these 120 were tried; 20 were convicted, but not one was executed: and for stealing in the dwelling-house, within the same period, only two were executed. It was impossible not to see that this proceeded from a disinclination to prosecute to the effect of inferring a capital punishment on such offences as these. The right hon. gent. opposite, however, said, that though punishment was not inflicted, the mere passing of the sentence would operate in a salutary way, by deterring others from the commission of crimes. How were persons to be deterred, however, by the idea of a punishment which they knew would never fall upon them? This was, indeed, to go to the nursery for our ideas, but such an argument would not operate with persons acute as those on whom it was meant to have effect were admitted to be. The cases alluded to by the right hon. the Chancellor of the Exchequer as being of an aggravated nature, with great submission, did not apply to stealing in the dwelling-house, but must fairly be considered as stealing forcibly from the person. Yet these two cases of simply stealing in the dwelling-house, and the aggravated offence which the right hon. gent. had himself pictured so highly, he would have punished in the same manner. As to the observations made by his hon. and learned friend on the work of Mr. Bentham, he (sir S. Romilly) should only say, that it was a most masterly and valuable performance, which would live and be highly thought of when those who now heard him would be no more; and if his hon. and learned friend had by his observations on that work made any gentleman who might not have already perused it, desirous to do so, he Could assure that hon. gent., whoever he might be, that his hon. and learned friend had conferred on him a high obligation. The right hon. the Chancellor of the Exchequer had said, that the criminal law of England was not a sanguinary law; for it was not to be executed. It was intended, however, to have been executed, and it was executed till towards the latter end of the present reign. At the beginning of this reign, more persons were executed than were pardoned, in the proportion of three to two, now, not more than one was executed out of 17. Ministers, therefore, were themselves the innovators, and not him (sir S. Romilly). All he wished to do was to make the law in theory what it was already in practice. Ministers in the lenity with which they now executed the sentence of the law, only concurred in the general feeling of the nation. It was as his hon. and learned friend (Mr. Morris) had expressed it. It was time that had become the innovator. Gentlemen would have it supposed that these laws, which he now wished to see amended, were the combined efforts of all the great men who had lived before us. So much the reverse of the fact was this, that these laws had all passed without discussion of any kind. One or two discussions on particular criminal laws did take place previous to this reign; the others, as lord Bacon expressed it, had been passed on the spur of the occasion. A gentleman would stand up and move that in such a case the benefit of clergy should be taken away, and it was done. The only choice of punishments thon was, to brand the hand, or imprisonment for a year. The right hon. gent. asked the worthy baronet (sir J. Anstruther) what he meant by restoring the law? He would tell him. To give back to the offence the benefit of clergy; to let the law stand as it did before the act of queen Anne. To the cases already mentioned, he begged to add the case of an apprentice tried in the year 1807 before Mr. Justice Lawrence, for robbing his master of his pocket-book, containing six 10l. bank notes. There were alleviating circumstances in the case. The master had held out an improper temptation to the boy, who had otherwise be haved in a most exemplary manner. In these circumstances, what could the jury do? They found the boy guilty of stealing 39s.! A most serious and distressing situation in which to place a jury, by which they must find little less than a judicial murder, or get the better of it by a judicial perjury. A cruel case, first to compel a Jury to call on God to witness their observance of the oath they had taken, and then to open the Statute-Book containing this act, and say, you must consign this boy to death, or you must violate your oaths. This was a most cruel course in which to persevere. If he had some opinions against him, he had also opinions of great Judges, now no more, in his favour on this subject. He had the opinion of judge Blackstone, whom, as he had then ceased to follow the profession of the law, his hon. and learned friend would probably conceive to be only a sort of dilettanti lawyer. He esteemed the severity of our criminal code as deplorable, and lamented that it should not be revised, at least once in a century. Lord Bacon, too, had set about a revision of this code; and even lord Coke, an enthusiast, and even a bigot where the established law was concerned, observed, that though ourlaws went to inflict punishment, they did not go to prevent crime, which could only be done by instructing the poor and ignorant. He (lord Coke) looked to the period when the English nation should be employed in that work, and prayed blessings on the head of those who should promote it. These he esteemed authorities at least equal to the Recorder and Common Serjeant of London.

The House then divided—

For the second reading 79
Against it 53
Majority in favour of the Bill. —26

The Bill was then ordered to be committed for Tuesday, as were also the Bills to prevent Privately-Stealing in Shops, and Stealing from Grounds in England and Ireland.