theft-she was friendless and she was poor. My lords, public duty pointed out the course I ought to take. I knew I ought immediately to go before a magistrate, who would have committed her for trial-I must have appeared in a court of justice, as the prosecutor against her, and have embittered my own life by the consciousness of having shortened her's. My lords, humanity triumphed over justice and public duty. I was constrained to turn loose upon the public an individual certainly deserving of punishment, because the law of the land gave me no opportunity of visiting her with a castigation short of death. My lords, upon this ground alone, and for the sake of public justice, this law ought, in my opinion, to be amended. For the sake of the injured, and not of the guilty, I am an enemy to inordinate severity. The prosecutors are those who fear death, and not the persons offending.

Lord LAUDERDALE.-How, my lords, can you compel an unwilling witness to state to the court and jury every matter he knows, which may have the effect of injuring an offender whom he may pity under his misfortunes? In him, therefore my lords, there virtually rests a power of mitigating the severity, of the punishment. How, my lords, can you prevent the jury, through compassion, from forgetting their oaths, and either acquit the guilty altogether, or mitigate the nature of the offence, in order to secure them from the severity of punishment? And lastly, my lords, with respect to the judges themselves, how can you prevent a judge, through a mistaken notion of compassion, from respiting the offender, or recommending him to the royal mercy?

the

MASTER OF THE ROLLS.-It can scarcely be necessary to observe, that the laws ought not in any country to be in direct opposition to the general opinion. So much of the execution of law depends upon the public, that their concurrence in the propriety or repugnance to the existence of the law, is always an object highly deserving of the consideration of every legislature. But, important as it is to the administration of justice in every country, in England it is all in all. We have not any public prosecutor; feelings and opinions of the party injured must consequently decide whether a prosecution shall be instituted or avoided. The offender may be guilty, the offence may have been committed, but the harshness of the punishment may prevent any prosecution, and, if instituted, must influence the witnesses.-Our juries are selected from the people: they are to decide upon the guilt or innocence of the accused :-Is not their opinion deserving of the most serious attention? If the law is not approved by those upon whom its execution immediately depends, will it not be relaxed, and will not guilt escape with impunity? Juries are now in a manner forced by their conceptions of the severity of the law, to as

sume a discretion which was never intended to be given to them. The exercise of any discretion by a jury is most dangerous. They are sworn to try the issue, and to give a true verdict according to the evidence. Upon the sanctity of this oath the trial by jury depends. Relax it, and think what may be the consequences. Ought laws to be so framed that there must be a continual struggle in the minds of your jurymen, whether they shall violate their consciences, or distress the best feelings of our nature by adhering to the law? The public opinion upon this subject cannot be misunderstood. The deviation by jurymen from the solemnity of their oaths, so far from being censured, has almost been sanctioned by great authorities under the loose phrase of pious perjury. The consequences are obvious: it now has become almost a mat ter of course for jurymen to avail themselves of every possible circumstance to acquit the prisoner of the capital part of the charge. They know, indeed, that the executions are few; they cannot be unmindful of the lenity of the judges; but, notwithstanding this, they are unwilling to risk any thing: they will not trust to another the use of a discretion which they have the power and disposition to exercise themselves. But this evasion of the law does not stop with the prosecutors; nor is this mitigation of its severity confined to the juries it extends higher :-it is easily discovered in the charges made by the judges from the bench:-it is seen in their constant intercession for mercy: it is seen in the conduct of the King's advisers, who, influenced by the same anxiety to spare the lives of this class of offenders, readily apply and easily obtain from the throne a remission of the sentence. This universal confederacy amongst the middling classes of society not to punish these offences by death; this conduct of the higher orders in dispensing with the law, is to me conclusive evidence that, in the advanced state of civilisation in this country, the punishment of death is too severe for this crime.

On Wednesday the 25th of March, 1818,

Sir S. ROMILLY stated, that he rose for leave to bring in a bill, to repeal so much of the act as took away the benefit of clergy from persons convicted of privately stealing goods, wares, or merchandise, to the value of 5s. in any house, shop, warehouse, stable, &c. He called their attention to the returns which for some days had been on the table, in order to show what the state of the law was on the subject. From 1805 to 1817, a period of twelve years, 655 persons had been indicted for the offence under consideration. Of these only 113 had been capitally convicted, and of those 113, not one had been executed; 365 of the 655 had been

found guilty by the juries before whom they were tried, of simple larceny, by which the capital part of the charge was taken away. It was evident, therefore, either that these 365 persons had been improperly charged with a capital offence; or that the juries, influenced no doubt by feelings of humanity, had in 365 cases violated their oaths. It was true, that there were high authorities in justification of a jury thus acting. Mr. Justice Blackstone stated, that a jury who brought in a verdict of guilty to an amount less than the evidence established, with a view to avoid capitally convicting the accused person, might be justified, on the ground that they had a right to take into their consideration the difference in the value of money between the present period and that at which the statute was enacted. This, however, he (Sir S. Romilly) should always contend, was a practice which had a most immoral tendency, and the temptations to it, he should always maintain, it was the duty of the legislature to remove. He would take the present opportunity of mentioning the state of the law, as derived from the returns on the table, with respect to the act making it capital to steal within a dwelling-house to the amount of 40s. Within eight years, down to 1816, no less than 1097 persons had been tried for this offence. Of these, 293 only had been capitally convicted, and not one had been executed. In 1816, 131 more persons had been tried, of whom 49 had been capitally convicted, and one (whose case was accompanied by circumstances of great aggravation) executed. So that, of 1228 individuals tried, 342 only had been capitally convicted (the juries either acquitting the 886, or finding them guilty of stealing to a less amount), and only one person executed! Was this a state of the law which it was desirable to continue? (hear, hear!) It was important, also, that the house should direct their attention to the state of the law as it respected some other capital offences, besides those which he had already specified. The principle on which the law was administered with respect to the offences he had already specified, was, that the law should generally not be enforced, but be enforced only in particular cases. In another part of the administration of the law, this principle was reversed-the law was generally enforced, and was not enforced only in particular cases. He alluded to the offences of fraudulent bankruptcy and forgery. It had been thought wise, by those who were intrusted with the execution of the law, to extend mercy in cases of fraudulent bankruptcy in only one instance, and that was under circumstances so peculiar, that, to have withheld pardon, would have been an act of the grossest injustice. He was sure, that every man conversant with the bankrupt laws knew, that not a year passed without the occurrence of a great number of fraudulent bankruptcies. Nevertheless, during 85 years, there had been but four capital convictions for this offence; numerous frauds

to a great amount having been suffered to escape with complete impunity, because the parties injured saw no alternative between that course and the shedding of blood. (hear, hear, hear !) The same system was pursued with respect to the crime of forgery. Formerly pardons for this offence were very rare. Lately, however, the offence had so multiplied, in consequence of the great increase of paper currency (both that of the Bank of England and provincial), that it was impossible to adhere to the system of never pardoning the crime. Still, however, theprinciple existed, that, in most cases, the law should be enforced, and that in comparatively few (and those under peculiar circumstances of extenuation), it should not be so. A considerable discretion had been vested in the Bank of England on this subject; a discretion which, he believed, had been judiciously and humanely executed, and the consequence of which was, that prosecutions had only taken place in aggravated cases. But the consequence was, that the uncertainty of punishment which this occasioned, destroyed all the advantage that might be supposed to result from the severity with which the law was generally enforced. He was persuaded that the frequent punishment of forgery by death excited strong feeling of compassion on the part of the public toward the sufferers. Indeed some examples of this punishment were extremely shocking. That day se'nnight two women had been executed for forgery, and that very morning two boys, 16 and 17 years of age, would have been executed for the same crime, had it not been for the exertions of a worthy magistrate and an honorable friend of his, who had detected a conspiracy for the purpose of their seduction, and who had successfully pressed a recommendation for a suspension of their punishment. Was it possible that such spectacles as these could have any other effect than to produce, not obedience to the law, but compassion for the violators of it? The fact was, that forgeries had greatly increased. Nothing could be more certain, than that if the sanction of the law was insufficient to prevent the crime, it was calculated to produce the worst effects. There was not only the loss of lives, but the deterioration of moral feeling which such exhibitions were calculated to occasion.

honorable and learned numerous instances of The crime of forgery

Mr. J. SMITH confirmed all that the gentleman had stated, with respect to the fraudulent bankruptcy that yearly occurred. had also lamentably increased within the last five or six years. Numerous cases of forgery were hushed up, from the indisposition of parties to prosecute. The bankers of London had formed a committee for the prosecution of forgeries, in order that no individual pity might interpose between the offence and its punishment; but even this expedient had been found unavailing.

In the years 1817 and 1818 a committee was appointed by the House of Commons to inquire into the state of the bankrupt laws. During this inquiry the attention of the committee was of course directed to the law, and to the effect of the law, by which the punishment of death is awarded for non-surrender and concealment of property. The total inefficacy of the law, from the determination of the injured parties not to assist in enforcing a law of such unreasonable severity, was indisputably proved. In May 1818 the committee made their report to the House, that "The law by which capital punishment is ordered to be inflicted upon fraudulent bankrupts, and upon those who do not surrender, is so severe, and so repugnant to the common sentiments of mankind, that it becomes totally inefficient in its operation; and hence the most flagitious individuals escape with impunity.-That it is the opinion of the committee, the severity of the law against bankrupts, in the cases of non-surrender, or for concealment to the amount of 201., has a tendency to defeat the object of the legislature: it is therefore recommended, that so much of the 5 Geo. II. c. 30, as subjects persons found guilty of such offences, or either of them, to suffer as felons, without benefit of clergy,' should be repealed; and that, in lieu thereof, the punishment of transportation for life, or for any period not less than fourteen years, should be enacted."

From such instances, and from a knowledge of their own feellings, the wise and the good have for years proclaimed the injurious consequences of indiscriminate severity, and they will at last

be heard.2

It

Sir W. Blackstone in his Commentaries on the Laws of England, says, "Yet, though in this instance we may glory in the wisdom of the English law, we shall find it more difficult to justify the frequency of capital punishment to be found therein, inflicted (perhaps inattentively) by a multitude of successive independent statutes, upon crimes very different in their natures. is a melancholy truth, that, among the variety of actions which men are daily liable to commit, no less than a hundred and sixty have been declared, by act of parliament, to be felonies without benefit of clergy; or, in other words, to be worthy of instant death. So dreadful a list, instead of diminishing, increases the number of offenders. The injured, through compassion, will often forbear to prosecute; juries, through compassion, will sometimes forget their oaths, and either acquit the guilty or mitigate the nature of the offence; and judges, through compas

I See note M at the end of this tract.

2 See note X at the end of this tract.