should consider this very opinion as a reason for more caution on our part, than I do consider necessary, when I reflect upon the intelligence and humanity for which their administration of justice is so eminently distinguished. Being persuaded that great benefit will result from the adoption of this bill, it shall have my support.

Col. Frankland. Unanimous as the advocates for the present bill seem to be in their opinion, that the existing law is incompetent to attain the end intended by the legislature; it is rather extraordinary that not one of the magistrates, interested as they must be in the administration of justice, have come forward to apply for its repeal. So far from having any disposition to alter the existing law, if I rightly understand what has been said by some honourable gentlemen who have spoken this night, all the judges of the land are convinced that the proposed reform is fraught with consequences the most injurious. Instead of any representation having been made at your bar of the difficulties attending the administration of justice, from the reluctance of prosecutors to institute legal proceedings; from the dispositions of witnesses to prevaricate; the inclinations of jurymen to forget the solemnity of their oaths: and the frequent necessity of the judges to prevent the regular course of law: instead of any representations of this nature having been made, we hear that the present system meets with the approbation of all the judges of the land. There is nothing astonishing in this: for, pleasing as these theories now submitted to your consideration may appear, when examined it will be seen that they are nothing but appearance. I have heard much of the discretionary power with which our judges are intrusted, but I have not heard anything of the abuse of this discretion: nor have I heard any reason to satisfy me that we may not safely continue this trust which has been exercised with so much benefit to the country. Sanguinary as our criminal code is said to be in theory; it is, in its practical application, allowed to be as mild as any system under the sun. Why then alter it? The fact is, that, without much of penal law, there is much of

prevention. Is it not better that the laws should operate by terror than by punishment?

We have been told that our code of criminal laws has been considered as sanguinary by all foreigners. Possibly it may: but of what importance is this, when we know that their practical humanity is consistent with the kindness of our national character? If a foreigner were to walk in our suburbs, he, from seeing the rattles and blunderbusses in the windows of our citizens, might conclude that we were a ferocious nation, scarcely emerged from a state of barbarity: but I am much deceived if he would long remain amongst us without discovering his error, and without being amused at any desire he might have felt to destroy these instruments of terror, which, without injury to any person, are á safeguard and a protection to their owners. They act as a terror to thieves, although a shot may not be discharged for twenty

years.

But, it must be remembered too that the system of criminal law in this country is framed in conformity with the manners and customs of the nation. In other countries the subjects are surrounded by informers: the hand is watched, at the very moment when it is acting: in this island, happily for its liberty, the system is totally different. Do the gentlemen who are such strenuous advocates in favour of this bill desire that the modes observed in other countries should be adopted in this? Is the police to be let in upon the amusements and societies of England? I have been where armed men have entered the ball-rooms, have observed the particular manners of the dancers, and, if they saw anything displeasing to them in the motions of the company, have insisted upon their turning partners in a different manner. trust that such intrusions will never be recommended amongst us: and yet, without a strict penal law, there must be a strict police. By altering part of our criminal code, we shall produce no certain good; but the alteration will be attended with the certain evil of destroying the lofty spirit, the spirit of confidence, those

I

high and noble sentiments, which are the best safeguards against crime, and upon which our liberties so much depend.

I must therefore oppose this bill, which I consider as the first step towards an important, and, as I conceive, a dangerous innovation.

Mr. Wilberforce. The reasoning urged in opposition to the motion, which has this night been submitted to the house by the honourable and learned gentleman, may be considered either as it applies to the particular statute which it is proposed to repeal, or as it applies to the general principles of penal jurisprudence.

The question now before us, is, however, simply whether that part of a statute which inflicts the punishment of death for stealing in a dwelling house to the amount of 40s. should be repealed. Upon this subject I have no hesitation in saying that the motion for the repeal of this statute has my unqualified approbation, and shall have my strenuous support.

It has been admitted, that of 1872 persons convicted of this offence, one only has been executed :-what is the inference to be deduced from this? Is it not clear that either the law or the practice is defective? and is it not allowed that the practice ought not to be altered?-But it has been said that, although the practice is deserving of commendation, and is consistent with the humanity of our national character, the law ought to remain in force, to be operative by terror, and not by punishment. My sentiments are totally different. I cannot conceive that this ought to be the ordinary course of law: nor can any ingenuity mislead me into the belief that the interests of society require the continuance of a law, which is so adverse to justice, and at such direct variance with our feelings as to be virtually abrogated. Upon the present system the rule has become the exception, and the exception the rule: and what are the consequences of this inversion? The infliction of death, instead of being designated

:

by a known law, is left to the discretion of the judge:—a momentous trust, ever to be regarded with jealousy and which, however purely it may be executed, will always have such an influence upon prosecutors, upon witnesses, and upon juries, as to produce the frequent impunity of guilt. Of this the honourable gentleman who spoke last, (Col. Frankland) seems to have been aware, when, instead of meeting the objection by argument, he has had recourse to a sort of humour to satisfy the house that severe laws do not defeat their object, and give pain to those feelings which it is of the most signal importance in the administration of justice to keep alive. In this humourous allusion, however, the honourable gentleman appears to me not to have stated his case of the blunderbusses with accuracy: He supposes that this instrument produces its effects by remaining quietly in the window of its possessor: the analogy to the motion now before us would have been correct, if, instead of remaining thus quiescent, the honest citizen had been represented as firing it regularly for one thousand eight hundred and seventy two times without hitting one of the depredators at whom it was levelled: in this case I presume the honourable gentleman would not calculate upon any great terror being excited by this warlike engine: nor object to its being removed: and yet this is the exact case of the law which it is now proposed to repeal.

The honourable gentleman has stated as reasons in opposition to this motion, that, by assenting to it, we shall affect the whole code of criminal jurisprudence and endanger the liberties of the country, which he has represented as being intimately connected with the severity of the penalties attendant upon the violation of our laws. How the repeal of a single statute can endanger the fabric of our laws the honourable gentleman has not explained: and I can scarcely suppose him serious in contending that there is any such connexion between liberty and severity. If the severity of our laws is a test of the liberty of the subject: if freedom is to decline and fall as humanity and kind feeling advance, then are we, indeed, in a progressive state to slavery. In the reign of Henry

the eighth the executions were averaged at 2000 a year. This, according to the argument of the honourable gentleman must have been the brightest period of English liberty. In Queen Elizabeth's reign, when the reformation introduced a purer religion and more humane conduct, a fatal stroke must have been experienced by our liberties, for in that reign the annual executions decreased from 2000 to 400. From that hour to the present there has been a perpetual advance in the merciful administration of justice, and, consequently, according to this reasoning, a correspondent advance in tyranny. I so totally differ from the honourable gentleman, that I am satisfied there is no such sympathy between cruelty and liberty: but, as the rigorous justice of our forefathers has been tempered by the gentler morals of our religion, so we may safely continue to encourage these humane dispositions without any danger to our own freedom, or to the liberties of future generations. Such have long been my sentiments upon this important subject: and it is a satisfaction to me to reflect that I am fortified in my opinion by the concurrent testimony of many able statesmen: and particularly by an honourable friend of mine, now no more, whose whole life was devoted to the service of his country. So deeply was Mr. Pitt convinced of the improper severity of our laws, that, to my knowledge, that distinguished person had it in contemplation to submit the whole of our penal code to the revision of some able lawyers, for the purpose of digesting a plan to diminish the sanguinary nature of its punishments, so inconsistent with the justice and humanity for which this country is so peculiarly distinguished. It is a great satisfaction to me to discover that a spirit of inquiry is excited upon this subject: it will, I trust, never rest until some plan is adopted to prevent the repetition of crime, not by threats of extermination which cannot be enforced, but by the certainty of punishment, and by the amendment of the criminal, and particularly by the general establishment of penitentiary houses, from which we know that such beneficial effects have resulted. To the able and eminent lawyer who has undertaken this noble task, I for one must declare that I feel the most unfeign

1