ed obligation and I please myself with thinking that the noble motive by which he is actuated will prevent his being deterred by any obstacle: and that, be the obstacles what they may, he will persevere and succeed, as he must eventually, in the great cause of humanity in which he is engaged.

The Solicitor General. I have great pleasure in seconding the recommendation of my honourable friend for the establishment of penitentiary houses. I have myself witnessed the good effects of that excellent system which is founded upon a principle in direct opposition to the modes of punishment now generally adopted. The object of penitentiary houses is to reform offenders and to restore them to society. The object of ordinary imprisonment, of the hulks and of transportation, appear to be merely a prevention of a repetition of the offence: the consequence is, that the bad habits of depraved men are confirmed or rather aggravated by these punishments. It certainly, therefore, is necessary to devise other means for the amendment of criminals, and I am not acquainted with any means so well calculated for this purpose as the system prescribed by the act of the 15th of his present Majesty, for the establishment of penitentiaries. When any plan of this nature is brought forward, most happy shall I be to give it my cordial support:--but the present question is of a very different nature; we are required to repeal a salutary statute, for reasons which, plausible as they may be in theory, are totally destitute of any solid foundation. It has been contended that the severity of the punishment occasions impunity, from the aversion of prosecutors, of witnesses, and of juries, to convict. It is always easy to assert, but often difficult to prove. How can this position be established: no attempt of this nature has been made: for my own part I am quite astonished at the assertion. With respect to the prosecutors it is manifest that they cannot be deterred, because, if they dislike the capital part of the charge, they have nothing to do but to omit it in the indictment, and proceed for the simple larceny; with respect to juries, even if they are so apt, as it is said, to reduce the value

of the goods stolen, in order to evade the capital punishment, how can this afford any facility to the escape of guilt, as the evasion of the punishment of death cannot secure impunity to the criminal or the infliction of a less punishment than is proposed by the present bill. I cannot but conceive that the whole of these suppositions originate in mistake. In the course of my professional practice I have had frequent opportunities to observe the conduct of prosecutors, of witnesses, and of juries, and I never observed that the fear of inflicting the punishment of death possessed any of the powers this night ascribed to it. But, even supposing that I am mistaken, supposing that the severity of the punishment may have this effect, it will not, I suppose, be contended that it is wholly inoperative upon the minds of offenders: and upon the balance between its effects upon the mind of the offender and upon the mind of the party injured and of the public the conclusion must be established. This is the strength of the argument in favour of the motion made by my honourable and learned friend: it has not produced any conviction on my mind: nor have I heard any reason to induce me to consent to the mitigation of a punishment for one of the most serious offences with which the peace of society is interrupted: an offence which, if the punishment be relaxed, may soon be destructive of all the comforts arising from the domestic relation of master and servant. I shall therefore oppose this motion, which has a tendency to abridge the discretion intrusted to the judges and to introduce an innovation where no practical mischief is found to result from the existing establishment,

Mr. Canning. I cannot but be apprehensive that my reasons for the vote which I shall give this night may, possibly, be misunderstood; for, although it is my intention to vote in support of the motion made by the honourable and learned gentleman, I certainly subscribe to much of the general reasoning adduced by his opponents, and am not a convert to all of the arguments ascribed to the learned mover upon his opening, when I unfortunately was not in the house.

The question now before us does not extend to any general plan for an alteration of our penal code, but is limited to the expediency of altering a particular law. The arguments of the honourable and learned gentlemen who oppose the present motion are, however, framed upon the supposition that this is a proposal for a total change in the criminal law of the country: as such they appear not to be wholly irrelevant: the points now at issue before us, as far as I have been able to collect them, are, whether it is proper in this instance to diminish the discretionary power intrusted to the judges and whether the certainty of the punishment inflicted by the statute of Elizabeth is, not decreased by the prevalent opinion in the community that the penalty is too severe ?

As to the discretionary power with which the judges are now intrusted, it must be remembered that it is a most awful discretion; a discretion by one man is to give or to take away the life of another: I can scarcely conceive it to be the subject of serious argument that this trust ought, unless from unavoidable necessity, to be confided in any magistrate, even although he may be endowed with all the noble feelings by which our judges have raised the character of this country for the pure administration of justice. The trust of discretionary power in judicial proceedings is, indeed, from the difficulty of describing the gradations of crime, not always to be avoided: but, when this necessity does not exist, the legislature ought not to grant what every upright magistrate must reluctantly receive. Whether such necessity exists in the present case is the immediate subject of this part of our present inquiry. It appears to me that it does not exist, and that the ends of justice may be better attained by the discretionary punishments not extending to death, which are proposed by this bill to be annexed to the offence now punishable by death.

Upon the next topic, whether the certainty of the punishment is not diminished by the opinion entertained of its severity, there is one fact which seems to be admitted as indisputable: I mean, that the punishment awarded by the statute is inflicted upon a very few of the offenders who are committed for trial: unless I

am mistaken, it is not inflicted upon one in a thousand. If this is admitted, the inference appears to me to follow of course. Something, some where or other, is wrong. It has been truly said that this error must be either in the practice or in the law itself; but it is admitted not to be in the practice, and must consequently be in the law. My honourable and learned friend who spoke last has contended that, even if the opinion of the excessive severity of this law have an effect in preventing the conviction of offenders by its influence upon the minds of prosecutors, of witnesses, of juries, and of the judges, yet that the opinion of this severity must also have an effect upon the minds of the criminals, and prevent, to a certain extent, the perpetration of crimes: and that the whole good or evil must be estimated by balancing these opposite effects. This cannot be controverted: but does my honourable and learned friend mean to contend that the remote fear of death being inflicted will have such a powerful operation upon a misguided mind under the influence of a strong and pressing temptation to do wrong: as the immediate fear of inflicting death unjustly will produce upon kind dispositions actuated only by a desire to discharge a painful duty to the public? I am sure that my honourable friend has too much knowledge of human nature to entertain such an opinion. When the punishment is too severe, kindness will ever be more unwilling to inflict than atrocity to expose itself to the remote risk of a distant punish

ment.

There is another observation made by my honourable and learned friend, (the Solicitor General) upon which I must say a few words. He has stated that the opinion of this severity cannot deter prosecutors from instituting legal proceedings, because it is optional with them whether they will proceed for the capital offence or for a single felony. I cannot but express my astonishment at such a remark made by my honourable friend, particularly when I consider the profession in which, so much to his own credit, he has passed his life. I do contend that, without violating his duty, it is not optional with the prosecutor to com

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mute the punishment. It is incumbent upon him to state the offence as it really exists, to state the truth and the whole truth, be the legal consequences what they may these consequences are not for his consideration but for ours: the legislature is to award the punishment, without giving any discretion to the party injured for any exercise either of his humanity or malignity. I may be in error, but I conceive that an acquittal for a single larceny is not any plea to a new indictment for a capital offence. How, therefore, can it be said, that a prosecutor may make his election so as not to injure the prisoner?

Entertaining these sentiments of the effects of this law upon the minds of the various persons concerned in the punishment of an offender, it appears to me to be of the utmost importance for us to prevent them; it is of the utmost importance that we should prevent the evasion of justice by sanctioning these perjuries, which, to save the life of a fellow-subject, our countrymen will commit: for it is vain to suppose that they will enforce your laws which are repugnant to the best feelings of our nature: which are in opposition to those merciful dispositions that have for centuries been inculcated amongst us, and for which our national character is raised to its present height and is respected throughout the world.

It has been said that the bill now before us is a dangerous innovation which we all ought to regard with suspicion and jealousy. It is, I trust, scarcely necessary for me to declare that I am no friend to any speculative innovations: but I cannot, upon the present occasion, discover any cause for this alarm, unless every species of revision and improvement is to be rejected as injurious. Fortunately for this country no such opinion has ever prevailed. The act of parliament which it is the object of the present bill to repeal was, upon its original enactment, an innovation, but, our ancestors were not afraid to adopt it: circumstances, times, and above all, opinions have changed, and what is there to be dreaded in adapting a penal law to the sentiments of justice now en