Sitting of 29 March 1811

DWELLING HOUSE ROBBERY BILL.
Sir Samuel Romillymoved the second reading of the Bill to repeal so much of an Act, passed in the 12th year of the reign of queen Anne, intituled, "An act for the more effectual preventing and punishing robberies that shall be committed in houses, as takes away the benefit of clergy from persons stealing any money, goods or chattels, wares or merchandizes, of the value of forty shillings or more, in any dwelling house or outhouse thereunto belonging, and for more effectually preventing the crimes of stealing in dwelling houses, or outhouses thereunto belonging."
Mr. Franklandspoke 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,
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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-

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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
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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-

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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-
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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,

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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.
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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

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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
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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,

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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,
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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-

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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
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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

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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
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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.

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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
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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

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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.
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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-

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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
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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

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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
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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-

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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.
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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

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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
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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

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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.
"Questions proposed to the Recorder and to the Common Serjeant of the City of London, together with their Answers.

DWELLING HOUSE ROBBERY BILL.
  QUESTION I.
  "What has been the effect of the act of parliament which took away capital punishments from privately stealing from the person?

  ANSWERS.
  The Recorder.
  "The effect of the act of last sessions, in my opinion, has been to encrease the number of offenders, and consequently the number of convictions.
  The Common Serjeant.
  "I have not observed any beneficial effect as yet, resulting to the public from the repeal of the 8th Eliz. c. 4, which took away the benefit of clergy from the offence of privately stealing from the person.

  QUESTION II.
  "Has it been found by experience that the number of pick-pockets has encreased since, or diminished?
  The Common Serjeant.
  "The information which I have collected in the course of my official duty, has satisfied my mind, that the offence of larceny from the person has very much increased since the repeal of the statute above mentioned, and that the offenders of that description have become more numerous, more united-in gangs, and that they carry on their depredations more systematically, and with greater boldness.

  QUESTION III.
  "Was there, before the act passed, any reluctance in prosecutors to prosecute for this offence, or in jurors to convict, if the evidence was complete?
  The Recorder.
  "I am not aware of the least reluctance in prosecutors to come forward and prosecute, as the law formerly stood, nor did I ever know a jury loth to convict, when the evidence was complete.
  The Common Serjeant.
  "The above-mentioned statute applied to any value exceeding one shilling, and
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  in prosecutions where the value of the stolen articles was very trifling, I have observed a reluctance injuries to find the prisoners guilty of privately stealing; but in cases, not of that description, I have not found more unwillingness to apply the law to that species of offenders, than to a thief of any other class.

  QUESTION IV.
  "What is, at this time, the state of the metropolis in respect to crimes? Which are most prevalent, and most difficult to be guarded against?
  The Recorder.
  "The crimes most prevalent in the city of London and county of Middlesex, and which are most difficult to be guarded against, I take to be stealing to the amount of 40 s. in a dwelling house, and stealing to the amount of 5s. privately in a shop. But offenders of the first description, viz. for stealing in a dwelling house, are nearly as numerous as all the other offenders subject to capital punishment.
  The Common Serjeant.
  "Offences against the personal security of individuals are not very prevalent larcenies. The larcenies from the person, and from shops and warehouses, are arrived to a very high pitch; but above all larcenies from dwelling houses, and those particularly through the agency of menial servants.

  QUESTION V.
  "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 40 s. 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,

  645
  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
  646
  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

  647
  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
  648
  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 Ansrtruthersaid, if he thought the motion of his hon. and learned friend

  649
  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
  650
  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

  651
  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. Herbertof Kerry opposed the bill.
  Lord George Grenvillesaid, 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
  652
  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. Abercrombysaid, 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 10 l. note. The jury returned a verdict for below 40 s. 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 40 s. 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 40 s. 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
  654
  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. Morrisargued 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

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  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 Exchequeragreed, 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,
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  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 Romillyconcurred 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,

  657
  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,
  658
  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

  659
  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.
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  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 10 l. 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 39 s.! 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

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  to prevent Privately-Stealing in Shops, and Stealing from Grounds in England and Ireland.

FOREIGN MINISTERS PENSIONS BILL.
Mr. Leachmoved the second reading of this Bill.
Mr. Bankesopposed the Bill on the ground of its breaking in upon the line of financial reform already laid clown.
Sir J. Newportwas hostile to the second reading of the Bill upon the same ground.
Mr. Brandopposed the second reading. He was averse to any step that could have the least tendency to raise a suspicion on the part of the people of the sincerity of the efforts making by that House in the financial reform already entered upon.
The Chancellor of the Exchequersaid, that amongst the objections he had heard urged against the Bill, there was none against its general provision. It was admitted that the persons in question ought not to suffer loss in consequence of their having held such situations; and that they ought to be provided for as far as it could be done consistently with the public service. The question then was, how far the present bill was calculated to effect that? He justified the conduct of the duke of Portland's administration, when it first came into power, in continuing to these foreign ministers the pensions given to them by the preceding government.
Mr. Abercrombysaid, it was then open to the King's discretion, whether he would continue to them their pensions or not.
Mr. Canningsaid, that from the constant exercise of the discretionary right in the King to grant a pension to all those who had served abroad as foreign ministers, there seemed to have arisen on the part of those ministers, a correspondent right to demand; so that the claims were so many, and were represented to be so similar, that the great difficulty was to know where to grant and where to withhold; this of course led to difficulties which were justly obviated by the Bill of last session. This Bill provided certain rules, which were meant to regulate future claims, by putting aside all those which did not come within such regulations. The first rule laid down was, that limiting the period of service within ten years from the date of his commission. The Bill further provided, that the person holding the foreign seals should certify that the claimant had not, within that space of time, refused any one mission
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to which the government might have thought it fit to call him. This he thought to be a wise provision, and one that had' been rendered the more necessary by a new custom, which was creeping in amongst those gentlemen, of exercising a supposed right of refusing any mission, after they had served out their three years; insisting upon it, at the the same time, that this refusal upon their part to discharge their duly to the public, did not invalidate their claims to the pensions they were receiving from the public, upon the ground of those services.—At the same time he had no hesitation in saying, that if when he had the honour of holding the seals for the Foreign department, any exemption had been proposed in favour of certain persons who were supposed (he knew not why) to be interested in the fate of the Bill, he would then have consented to it. The omission made in the Bill of last year, respecting this case, was merely an oversight; and it ought to be recollected, that though this Bill should pass, the discretion on the part of his Majesty to grant or withhold such pension, would remain entire and uncontrouled.
Mr. Whitbreadexpressed his reluctance in feeling himself obliged to vote against the Bill.
Mr. Stephen and Mr. Giddywere for the Bill.
Mr. Leachreplied to the arguments urged by various speakers against his Bill, and contended, that persons employed in the diplomatic service of the country, were entitled to a liberal provision, when they were no longer employed, though they might not have been ten years in; the service. Persons who gave their talents to the diplomacy, and relinquished other prospects of obtaining an independence on the faith of the existing negociation, ought not to be subsequently denied support in consequence of a new arrangement having been made.
The House divided, when the numbers were—

For the second reading

34

Against it

24

Majority

—10

COMMERCIAL CREDIT BILL.
This Bill passed through a Committee, and was reported without amendment.
The Earl of Lauderdalegave notice, that he should move a clause on Monday, to prevent the Bank from purchasing the Exchequer Bills issued under this act. His lordship also stated, that he should then prove that he was correct in stating that the Bank of Ireland had diminished its issues after the report in 1804, and which had been positively denied by a noble earl on the former evening.
The Earl of Rosssaid, he had not denied that the Bank of Ireland had diminished its issues at the period alluded to; but what he maintained, and was still prepared to contend, was, that the exchange became more favourable to Ireland previous to any diminution of its issues by the Bank. His lordship then proceeded to notice a statement in the Report of the Bullion Committee, which, he maintained, was founded in error; namely, that the Bank of England had increased its issues between June 1804 and 1806, whereas it was proved by documents, that, during that period, the issues were diminished.
The Earl of Lauderdalecompared the present state of the paper currency with former depreciations, contending that the same cause, namely, an excessive issue of paper, would infallibly produce similar effects to those produced by that means in the reign of William 3; to the depreciation of assignats in France; and to what had been witnessed in every one of our colonies. In consequence of an excessive issue of paper, the coin disappeared, and the paper became depreciated—an evil which was only cured by limiting the quantity of paper.
Lord Hollandobserved, that the very same arguments that were now used, by those who contended that the paper currency was not depreciated, were used in France, to prove that assignats were not depreciated.
Lord Redesdalecontended that Bank notes were in a different situation from assignats, being issued on securities which must be paid in a certain and short period, and in payment of which the Bank notes were returned.
The Earl of Lauderdaleobserved, that the assignats were issued on the best security in France, namely, the land, and
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whilst they did not exceed the amount of that security, remained at par with bullion; but as soon as it was known that more were issued than could be taken in payment for the land, then they begun to fall in value, until at length they sunk to nothing. So by the directors of the Bank of England increasing the issue of Bank notes, for which cash was not to be had, the Bank paper had become depreciated, whilst the Bank proprietors had gained the enormous profit of 21,000,000 l. since 1797.
Lord Redesdaleadmitted the cause of the depreciation of assignats, but contended that the assignats were issued by government for provisions, for the armies, and other articles, without any prospect of their being returned, whilst the notes of the Bank of England were issued on securities in payment of which they must be returned within a short period. The Bank notes were merely similar to assignats before their depreciation.
The Earl of Rosslynwished to understand clearly what was meant by this argument, as supposing the issue of Bank notes to be doubled, how would it then apply?
Lord Redesdaleobserved, that the argument did not apply to an excessive issue without the means of return, but to the actual issue, as at present, of Bank notes, only upon securities.
The Earl of Lauderdalecontended that it was merely a collusion for the Bank to issue notes to the bill-holder to pay his bills with.
The conversation ended, and the House adjourned till Monday.