bill for preventing privately stealing was read a second time, and ordered to be committed this day se'nnight.

The Solicitor General, in not opposing the question in that instance, begged not to be understood either to adopt or oppose the measure, but wished merely to reserve himself to a future stage of the proceedings to state his sentiments upon it.

Mr. Windham expressed himself to the same effect.

The bills for preventing robberies, or privately stealing in dwelling-houses, and also on navigable rivers or canals, were read a second time, and ordered to be committed this day se'nnight.

April 13, 1810.-The privately stealing bill, the dwelling house bill, and the canal robbery bill, were severally committed, and the reports ordered to be received on Tuesday.

May 2, 1810.-Sir Samuel Romilly moved the order of the day for the further consideration of the report upon the bill for stealing in a dwelling-house: some amendments were read and passed.

On the question that the bill be engrossed-

Mr. Herbert. “I rise with reluctance to oppose this measure which has been submitted to the house by the honourable and learned gentleman: but I cannot, from respect to any gentleman, withhold my dissent from a bill intended, as I conceive, to introduce a dangerous alteration in the criminal law of this country. Unpleasant as the task is, I feel it to be my duty to resist these bills, and other bills of the same tendency, in every stage of their progress through this house. The object of these bills is to render offences hitherto capital, no longer so. friend to the old law, I find myself bound to resist such an alteration. It is not right that it should go forth to the public that

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these bills have passed through this house, upon the supposition that the criminal law of England is defective. The arguments of the honourable and learned gentleman, specious as they are in theory, are erroneous in practice. Of this nature are all arguments founded upon the numbers who escape punishment; which, I am persuaded, may be ascribed to very different causes than to defect in the law of England. Deduct from the aggregate all those who are acquitted through the unwillingness of parties to prosecute; through their avarice in declining the cost of prosecution; through their inability to defray the expense; through the ingenuity of counsel, or by means of false witnesses; and from the peculiar nature of the trial by jury, which, amidst many advantages, has some faults, the number of those who evade the law will be considerably reduced. The uncertainty, therefore, ought not to be ascribed to our law. But even allowing the statement to be correct, it would hardly be a fair way of considering the question: for, besides the list of those who have been convicted capitally, the list of those who have been punished in any way should be taken into account. There is a wide difference between any punishment and total impunity. It is, sir, a principle universally acknowledged by all authors on criminal jurisprudence, that crimes should be punished not from revenge, but for example: punishment is not retrospective but prospective. It is inflicted, not because crimes have been committed, but to prevent their future commission. This is the principle of the law of England; it is the principle of the acts of Henry VIII. of Philip and Mary, and of the act of Elizabeth, which the honourable gentleman is desirous to repeal. By reading the preambles of these acts it will easily be perceived that I am borne out in asserting that the acts were passed, not in the spirit of revenge, but with the just and rational object of preventing crime by the influence of example. Such having been the intention of the legislature, we ought to be cautious in mitigating penalties which were inflicted by the wisdom of our ancestors. Before we abolish existing punishments we ought well to consider how the deficiencies

which we may occasion can be supplied. If the punishments in use are not to be retained, what substitute will be recommended by the learned and honourable gentleman who is so desirous for their abolition?-Will he introduce the knout from Russia? I hope before this horrid expedient is adopted, there will be a careful examination of the evidence of those who have witnessed its infliction; who are unanimous in declaring it is more horrible than death itself? Will he, with Beccaria, recommend perpetual imprisonment? Is he desirous to revive the practice of nailing ears to the pillory? Or would he resort to solitary confinement as a milder substitute? Whether milder, whether more merciful or not, I am not disposed now to inquire; but I am convinced that there are many persons in this country who will contend to the last against such a system. I am proud to say that I am one of the number. Upon the whole it appears to me, and will I trust appear to the house, that, in the present state of society, our properties are preserved at the expense of as few lives as possible. I am sure that many offences are prevented by the terror of death; and it is a language which I have often heard among the lower classes, that such a thing ought to be avoided, because it is a "hanging matter." I do not wish, from the observation I have made of its effects, and the view I have of its principles, to alter the laws of England, or make any material changes in the criminal code. I will, therefore, second any person, who, agreeing with me in sentiment, will move any amendment, tending to check the progress of the present bill.

Sir J. Newport." If, sir, I could entertain the opinion which has been expressed by the honourable gentleman who has just sat down: if I could concur with him in thinking, that the ends of criminal justice, the prevention of crime, would be more effectually attained by severity than by certainty of punishment ; I certainly should, with him, resist the introduction of the bill now before the house: but, as my sentiments are wholly different; as I am satisfied that certainty of punishment is far more efficacious than any severity which is subject to remission and re

laxation, I shall most cordially co-operate with my learned and honourable friend to whom we are indebted for the discussion of this important question.

I have long been convinced that the criminal laws of England require great amelioration:-an opinion in which I am much fortified when I reflect upon the sentiments of different authors on jurisprudence, and the uniform disapprobation of our system by all foreign nations. They, judging of our law as they see it in theory, invariably represent it as sanguinary, and enacted by a people upon whom the mild spirit of Christian legislation has not moved. We know that in practice it does honour to the kindness of our national character. It is a system which in theory outrages humanity, is in opposition to the general feelings of the civilized world, and is incapable of practical application. The theory of our law, and the practice of our nation are at direct variance with each other. Can there be stronger evidence of the necessity of a reformation? a necessity which rests upon a principle so clear and indisputable, that it is now adopted as a maxim by every person who has reflected upon the subject. The principle, which can never be too often repeated, is, that," the real cer"tainty of a lesser punishment will have more effect in deterring "from the commission of crime, than the imaginary terror of a "greater punishment which probably may never be inflicted."

Instances of this occur daily; and are, I make no doubt, in the recollection of many gentlemen now present. To one, amidst many, I will request a moment's attention. Some years ago

an act was passed in Ireland by which it was made a capital felony to cut down a tree by day or by night. A gentleman who dedicated much of his property and most of his time to agricultural improvements; who had planted much, and was much attached to his plantations, was the first to rejoice at this additional security to his property; and having, before the act passed, suffered much from these depredations, he again and again de

clared, that, in the event of detecting any offender, the law should be put in force. An occasion soon occurred. An offender was detected in the very act of destroying his plantations; and was committed for trial at the ensuing assizes. I well knew what my friend endured upon that occasion:-I had the happiness of his friendship, and the honour of his confidence:--he was a man of the highest worth and of undaunted public spirit; he never relaxed in his resolution to enforce the law; he prepared to proceed, and did proceed to the assize town; but there his fortitude at last failed: he declared that, after the most agonizing deliberation, he could not reconcile to his notions of justice the propriety of being the cause of the untimely death of a fellow-creature for having cut down a tree. My worthy friend afterwards stated* to me, that, great as he considered the injury to society in suffering the criminal to escape with impunity, yet he could not be instrumental in procuring his condemnation, even though the crown might remit the punishment. Such was the mode in which a man, far above the weaknesses likely in most cases to interfere, decided. This, sir, is the way in which every man who possesses the common feelings of man's nature, must decide in cases where there is not any proportion between the crime and the punishment. But the baneful effects of severe laws is not confined to the minds of prosecutors alone. They have a sensible influence upon the offenders themselves, who calculate upon the chances of escape, from their knowledge that many of their companions have eluded the law, not only by the unwillingness of prosecutors to proceed, but by the dispositions of juries to decide, as it is called, in favour of mercy :-ought laws thus to remain a dead letter?―ought this perjury, however it may be sanctioned by the motives, to be encouraged?-The honourable gentleman, unmindful of the evil attendant upon this lenity of juries, has adduced it as an argument in his justification for opposing the bill, when it is one of the strongest reasons for supporting this salutary meaşure. Every legislature should well consider the importance of not encouraging any relaxation of these moral obligations, upon