THE PARLIAMENTARY REGISTER. [cox. Mr. Perceval agreed, that it would be an important improvement on the law, if Judges were not compelled to pass. sentence of death on those who, at the time of passing sentence, they should be of opinion did not deserve a capital punishment. It would make a wonderful difference, however, if capital punishments were entirely to be removed out of the criminal code in every case connected with the objects of the different Bills now before the House. The case cited by the honourable gentleman (Mr. Morris) 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 honourable and learned gentleman (Abercromby) had placed the question on its fair footing, namely, if 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 more 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 capitaily or not, as they chose. If this were the case, no offence would be laid as of a capital nature, unless from some improper feeling on the part of the prosecutor. As to the idea that the present measure would contribute to render punishment more certain, that he could not agree to, if by "more certain" was to be understood more defined, for, by the present measure a greater latitude of punishment than that now in use was allowed. The unwillingness to prosecute, he contended, was not to be attributed solely to the offence being of a capital nature, but to the expence and trouble of prosecuting, and to other similar causes. He denied that the criminal code of the country was bloody; on the contrary, execu tions very rarely followed ascertained guilt. The honourable Baronet (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 honourable Baronet meant. Was it the period between Henry the VIIth and Edward IIId, when murder was a clergiable felony? If there was any part of the system proposed by his honourable 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 where a servant awoke his master in the attempt to rob him, and the only means that remained to prevent him 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 S. Romilly concurred entirely in the testimony that had been borne by every gentleman who had spoken on the subject, as to the ability and ingenuity with which his hon. friend (Mr. Frankland) had opposed the present measure. He could not but observe, however, that his honourable and learned friend had been rather severe 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 is study. If so, and he was really so ignorant on this subject as his honourable friend represented him, he was, indeed, extremely unpardonable. For fifteen years he had been in the constant habit of going the circuit in his professional character; he had been much employed in the Criminal Courts; and when not employed there, he had been in the constant habit of visiting them, and taking notes for his improvement in that branch of the legal code of this country. But that his honourable and learned friend should be so angry at those whom he (Sir S: Romilly) supposed to be mere theorists, he (Sir Samuel)

confessed surprised him a little, as he could not help thinking that his honourable 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 honourable 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 Samuel 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, Sergeant 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 these reasons were. They objected to the proposed alteration, but why? Because the offences to which the Bills applied, were offences which had greatly increased and were now increasing! Could there, he asked, be any greater objection to a law, than that the offence against which it was intended to provide was increasing 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 Physicians, when advising with the whole body as to the state of their practice, assign as a reason for adhering to the medicine and to the course of treatment in a particular malady, that their patients were coming to be cured, and were dying as fast as could be desired? If under the present law the offence had increased and was increasing, what a strange reason for objecting to a change! Of what nature, then, ought the change to be? They could not at this period of time go back to the wheel or the rack in search of a substitute for the present mode of punishment; and if they could not resort to a system of greater severity, why not seek for a remedy in a greater degree of lenity? If he (Sir S. Romilly) had succeeded, two years ago, in procuring a change of the law in this respect, would not the increase in the number of culprits, which was now regarded as a

reason why no change should take place, have been attributed to the very change which had been introduced? The chances of escaping, as the law now stood, were mul tiplied 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 honourable and learned friend (Mr. Abercrombie) 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. gentleman 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 honourable gentleman (Mr. Perceval) 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 honourable gentleman 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 honourable 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 honourable gentleman, whoever he might be, that his honourable and learned friend had conferred on him a high obligation. The right honourable gentleman (Perceval) 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 seventeen. 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 honourable aud 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, 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 then was, to brand the hand, or imprisonment for a year. The benefit of clergy, namely, being able to read, was then an exemption from punishment, on account of every offence scandalous to be thought of, being of itself an aggravation of the crime. The right hon. gentleman asked the worthy Baronet (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 mention the case of an apprentice tried in the year 1807 before Mr. Justice Lawrence, for robbing his master of his