appeared, that the number of individuals committed for this offence amounted to 188, of whom 18 only had been convicted, and of these not one executed. This he trusted would be admitted as a pretty accurate criterion to shew, that it was not intended to carry the law into effect against individuals who were found guilty under this statute. The consequence of the law not being executed, as was already stated, was, that where some punishment was deserved, no punishment was at all inflicted, and the offender escaped altogether with impunity. This was an evil which could not exist if the laws were less severe, and a certain but mild, although effectual punishment was substituted. He did not mean to censure the forbearance which thus disarmed the law of its ferocity, but he condemned the retention of a law which was found too cruel for application, and which was therefore superseded in almost every instance by à discretionary adoption of that wise and humane principle, that no unnecessary suffering, no useless pang, ought ever to be inflicted under the sanction of the legislature. Upon this part of the subject, he could not more powerfully illustrate his argument than by quoting the sentiments of a man who had once been the ornament of that house, and whose opinions would have weight far greater than belonged to any thing that could fall from so humble an individual as himself. In the observations upon our penal laws which were published in the last edition of Mr Burke's works, that distinguished person says, 'The question is, whether, in a well-constituted commonwealth, it is wise to retain laws not put in force? A penal law not ordinarily executed, must be deficient in justice or wisdom, or both. But we are told, that we may trust to the operation of manners to relax the law. On the contrary, the laws

ought to be always in unison with the manners, and corroborative of them, otherwise the effect of both will be lessened. Our passions ought not to be right, and our reason, of which law is the organ, wrong.' The words of this admirable writer were never more applicable than in the present case; for without some extraordinary aggravation, who was there with nerves strong enough to contem. plate the execution of this law? Who would say that any one for stealing a ribbon or a piece of lace above the value of five shillings, was deserving of death, if not guilty of some other offence? He did not believe that there was a single instance in which the sentence had ever been carried into execution. If there were any instance, it would be very desirable to know under what aggravations the offence had been committed; and it would also be extremely desirable that these aggravations, which had been the foundation of the punishment, should in future be made the foundation of the sentence. This would relieve the judges from that responsibility in deciding on the fate of individuals from their own private judgment, which constituted the most painful part of their duty. He was himself satisfied that the effect of the law had been to increase the frequency of the crime. Laws, to be effectual, must hold out a terror to individuals. What terror could a law carry with it, when it was known that it was never put in force, but remained a dead letter on the statute-book? He had on a former occasion stated, that no instance had occurred of the law against stealing to the amount of forty shillings on navigable canals having been put in force. An aggravated case of this kind had lately happened, in which property had been stolen to the amount of some thousand pounds. This case had been cited against the principle of the

bill for repealing that act. But could this be considered as a fair ground of objection? Because stealing to the amount of some thousand pounds was punished with death, was that a reason why stealing to the amount of forty shillings should be punished with death? He should, however, have congratulated himself, even if a law had passed to save the lives of those individuals. It was not likely that an instance of so aggravated a nature would soon occur again, and the effect of the execution of the sentence was to make persons dissatisfied with the existing law. The trial had lasted three days, and the jury had the fullest opportunity to consider every circumstance of the case. Yet after their entire conviction of the guilt of the prisoners, they had joined in an unanimous petition to the prince regent to spare the lives of those whom by the law they were bound to condemn. There could not be a stronger instance of the general repugnance in men's minds to the carrying such laws into

execution.

"The next bill he proposed to introduce related to the common-law punishment in cases of high treason. The sentence, at present, it was well known, was, that the criminal shall be drawn upon a hurdle to the place of execution; that he shall be hanged by the neck, and being alive shall be cut down; that his entrails shall be taken out of his body, and, he living, the same shall be burnt before his eyes; that his head shall be cut off, his body be divided into four quarters, and head and quarters shall be disposed of at the pleasure of the king. In point of fact, this horrible sentence was not now executed, the offender being hanged until dead, and his head being then cut off and exhibited to the spectators, a practice to his mind most exceptionable, when it was considered that it was calculated to excite only disgust in some,

compassion in others, and brutal apathy in a third class. Mr Justice Blackstone had said, that the practice of embowelling had been discontinued, but it was well worthy of consideration whether so shocking and ignominious an infliction ought to be left to the discretion of the executioner. The judges had not the power of remitting any part of this prescribed judgment; for in the case of Captain Halcot, who was convicted in the year 1683 of being concerned in the Rye-house Plot, the judgment was set aside upon appeal to the House of Lords, because, although the embowelling and burning had been directed, the words ipso'vivente had been omitted. These expressions were pronounced by that high tribunal to be an essential part of the judgment, without which it had no legal validity whatever. It was argued, that never any judge was known to require that the man's bowels should be burnt while he was alive, and that the same was impossible to be executed. To which it was answered, that to have bowels cut out while alive was the most severe part of the punishment, and therefore ought not to be omitted; that to pretend that the judgment could not be executed, was to arraign the wisdom and knowledge of all the judges and king's council in all reigns; that the strict execution was not impracticable, for that tradition said that Harrison, one of the regicides of Charles the First, did rise up and give the executioner a box on the ear after his body was opened.-Ought then this punishment to remain to revolt the feelings of mankind, and furnish foreigners with a reproach against our national character? Ought the terrors of a vain threat to be displayed in the hour of the wretched offender's fate, to bereave him of his understanding? Ought the question, whether a man shall perish instantaneously, or by slow, bitter, and protracted torments,

to be left to the decision of the executioner? He was ready to admit, that at later periods no such horrible scenes were exhibited, except by accident, and such instances had occurred; but surely it could never be endured with any degree of patience, that the unfortunate wretch who was doomed to suffer death, should be exposed to the most horrid tortures by the mere inattention or carelessness of an executioner, while the judge had no discretion whatever. It was true, that from the increasing humanity of the present times, the dreadful sentence of the law was seldom put in execution; but what other effect could it produce, he would ask, but that of frightening the wretched culprit, when all those barbarities were denounced against him by the judge? Nor was this the only evil; the judges could use no discretion in those cases; they were bound to pronounce the dreadful sentence of the law, while the mitigation of punish ment was left to the care, and the aggravation to the negligence of the executioner. Nor were the additional cruelties sometimes exercised on those occasions always to be attributed to negligence. Lord Bacon had recorded, that in the time of Queen Elizabeth, they were generally excused by the barbarities practised in other countries; and Cambden relates, that in Babington's conspiracy, when fourteen individuals, found guilty of high treason, were left for execution, the first seven who suffered were so cruelly tormented, that the queen being informed of the severity used in the executions the day before, and detesting such cruelty, gave express orders that these should be used more favourably; and accordingly they were permitted to hang till they were quite dead, before they were cut down and bowelled.' He was sorry to say, that in the last rebellion, in the year 1746 such was the state of inflamma

tion which men's passions had attained, that a Mr Townly was executed with all those disgusting barbarities which he had submitted to the reprobation of the House. After hanging six minutes, he was taken down, and laid on the block, but still showing signs of life, the executioner struck him on the breast, and finding this not sufficient, proceeded to cut his throat. He was afterwards embowelled, according to the letter of the law. The origin of this common-law judgment he had not been able to trace higher than the reign of Edward I. when David, Prince of Wales, and the celebrated Wallace, were executed for having bravely and heroically maintained the interests and defended the independence of their native land. The burning, in cases of petty treason and witchcraft, long remained a disgrace on the statutebook; it had been repealed in the one instance, " and blessed," he said, " be the memory of the man who had procured the abrogation of the dreadful edict."-He intended then to move for leave to bring in a bill' to alter the punishment of high treason,' and also for another bill to take away the corruption of blood, as a consequence of

attainder of treason or felony.' This corruption of blood, he begged leave to observe, was quite a distinct thing from forfeiture, and was, indeed, a subject on which great diversity of legal opinion had prevailed. It consisted in incapacitating the person attainted from devising his property; it left him, in fact, without an heir, or, in technical language, disqualified him from tracing a pedigree. He should be ashamed," he said, " to take up any more of the time of the House with this subject, although he could quote passages from Mr Justice Blackstone, and other eminent writers, in favour of his opinion."

The Solicitor-General (Sir William Garrow) "hoped the House would

indulge him while he made some general observations on the principles by which his hon. and learned friend appeared to be actuated, although he certainly did not mean to oppose his motion. He confessed himself totally unprepared to speak on the subject of punishment in cases of high-treason, as he had not understood before that this would form a part of the proposition of his hon. and learned friend, yet he would say that the barbarous punishment so loudly and pathetically complained of was merely nominal; and as to the corruption of blood it had been devised to deter men from committing such a heinous crime, for it was well known that individuals, whom no human or divine law could keep in bounds, were restrained from crimes by the consideration of the fate which awaited their helpless orphans. As to the first proposition of his hon. and learned friend, he certainly agreed with him, that if the obligation of strictly interpreting and literally enforcing the provision of the criminal law, were imposed on the judges, no man would accept an office which would convert the assizes into shambles. But if discretion must be vested somewhere, where could it be so safely reposed as with the judges of the land? Always reserving an appeal to the fountain of mercy-an appeal, which, whenever good cause could be shewn in support of it, had never been made in vain.-With respect to the punishment of transportation he might be permitted to say a few words; and possibly he could not do better than to relate what had come under his own immediate observation. He had at times been called upon to assist the judges at assizes. In one instance a man had been tried for stealing a piece of timber in the night time, and had been convicted. The sentence to be inflicted by the law was transportation for seven years; but if the

judge had been compelled to insist on the infliction of that sentence under the peculiar circumstances of the case, it must have made his situation miserable indeed. The prisoner was a poor, but industrious tailor; every body bore testimony to his good character, even the prosecutor himself was constrained to say that he believed him to be the most industrious and excellent creature living. When called on for his defence, and to state why he had committed the theft, the poor man said, It is true that I stole the piece of timber as I was returning home from my club; and I intended to make stools of it for my poor, sick children.' Such was the feeling of the judge, after having heard all the heart-rending circumstances, that he said to the prisoner, I hope that your appearance here will be of no detriment to you hereafter-it ought not to be-you have suffered much already-go home, and bless the laws which have enabled the judge to exercise some discretion in your case :Gaoler, discharge the prisoner!'What would have been the situation of the judge, had there been any written scale of law which must be applied to this case? Would not any further punishment than this man had already received have been too much? The same occurrences often happened, yet there were instances in which it was advisable for the security of society, to exert the utmost rigour of the law.-He could not but lament that the present motion had been brought forward; yet, knowing the high and honourable mind of his learned friend, he felt convinced that it had been the result of honest conviction, and not from a mere desire of making complaint. He meant not to impute any thing like blame. He lamented that any such notion had been introduced into that House, for there were persons out of doors who might think that there was much

ground for complaint. His hon. and learned friend had told them, that he verily believed a recent occurrence would not have taken place, had the bill proposed by him succeeded, alluding to the conviction and subsequent petitioning of those persons who had stolen a great quantity of silk on the river Thames. He, however, differed from his hon. and learned friend in such an opinion. He admitted that it would be most cruel if the letter of our penal code were to be abided by in every instance, for there were many cases where to inflict the punishments prescribed by the statutes for the offence would be the most barbarous cruelty, yet there were many cases of a very different description. It was death to steal on a navigable river to the amount of 40s., and there were many cases where it would be acting mercifully by society to inflict the punishment to the utmost letter of the law-cases which developed regular plans and deep-laid conspiracies; which formed part of a series of depredations that were carried on daily and nightly, to the apparent disregard of all law. When the ringleaders in such violations of good order and law were caught, was it not right that they should be punished as examples, out of mercy to others, to deter them from committing similar offences?-Such then was the character of the case which had been alluded to. There were to be seen deep-laid plots, and the effects of widely-extended corruption. Those who had the care of the property had been corrupted to abandon their duty towards their masters, and the law by which they had been tried, had said that the offence was capital. They had been tried before as conscientious and as intelligent a judge as ever sat upon the bench (Mr Baron Thompson.) After a patient trial, which lasted three days, they had been convicted. On that occasion,

the assistance was had of all the per sons eminent in the law; and the learned recorder of London, as was customary, had laid a minute report of the case before the sovereign au thority. In the privy council every circumstance of so important a case was minutely canvassed; and the an xiety of the royal mind on all occa sions to render judgment in mercy was well known. Indeed, the anxie ty of the sovereign to save the life of that unfortunate criminal, on whom the sentence of death had been passed, could only be known to those who had witnessed its effects, and it was difficult to communicate even a faint idea of that anxiety. He had heard the late recorder (Adams) speak with great delight and enthusiasm of the excessive anxiety of his majesty to save the lives of criminals; and for that purpose he would repeatedly question as to the law and the circumstances of the case, and all in favour of the criminal. But what was to be done, when a desperate gang were brought before the tribunal of justice to answer to the violated laws of their country? Was there no difference between the measure of their guiltbetwixt their culpability and that of an individual who might have com mitted a similar offence for the first time, from absolute poverty, and without having been in concert with any one? But it was said, respect. ing the robbery on the Thames, that the jury had afterwards petitioned his royal highness the Prince Regent for a mitigation of the punishment-a proof of their notion of its unnecessary severity. Some of the criminals had families others wives

and others fathers or mothers dependent on them for bread. No man had a higher veneration for the trial by jury than he had, and for those who composed the juries of this country. Few men had seen more of the