authority of Lord Ellenborough, who had declared, that taking away capital punishment from the crime of privately stealing from the person, had increased the offence to an enormous and alarming degree; and said, that to his opinion he should pay more deference than to the theories of all the speculative writers collectively. He said, that upon the principle maintained in the bill, all the acts inflicting the punishment of trans portation ought to be repealed, since it was well known that in SO cases out of 100, when that was the maximum of punishment, the judge commuted it for a less seve:e penalty. It was the system of the law of England that a greater punishment should be affixed to crimes than it would be always necessary to inflict, leaving it to the discretion of the judges to diminish it, and he saw no necessity for altering it, while the judges were actuated by the feelings of tenderness and humanity. He deprecated the mischief resulting from discussions which would propagate among the people a notion of the cruelty of the laws by which they are governed; and should feel it his duty to resist the farther introduction of an innovating spirit into our criminal legislation.

Mr. Stephen said that his hon. and learned friend, the mover, so far from discarding practice for theory, or wishing to innovate, was desirous to restore the law to its criginal state, in which it existed a century ago, before an experiinent had been tried which had failed of its purpose. The strongest argument he had heard against the bill was the opinion of the judges, which was entitled to all due re

spect, yet it might be remarked that there was a propensity in all professional men to resist every deviation from established usages. The consideration which most weighed with him in supporting the present measure, was the advantage of introducing certainty into the feelings which pronouncing the awful sentence of the law should excite in the criminal himself and those who witnessed his fate, and which must be rendered quite vague by the fore-knowledge that in not more than one case in twenty the sentence was carried into execution. The hon. gentleman also adverted with energy to the necessity juries were laid under of trifling with the solemn obligations of an oath, to evade, under the direction of the judge, the severity of the law.

After several other members had spoken, with a repetition of the former arguments, Sir S. Romilly made a concluding reply to the objections that had been advanced against his bill. He said, he was perpetually termed a theorist, but it was upon fact alone that he had rested, and his opponents were the real theorists with their general arguments. The number tried for the offence in question from 1749 to 1771, was 250, of which 109 were convicted. But in the last five years, out of 188 tried, the convictions were only 18; and how could this difference of proportion be accounted for, except from the unwillingness of juries to find the property stolen to be of the value required by the act? Could any stronger argument against an existing law be conceived, than that crimes increased and multiplied under them?

them? With respect to the 'alleged fact, that privately stealing from the person had been more frequent since the repeal of the capital punishment annexed to it, he denied that the mere increase of committals proved that this was the cause, since it might be attribited to the general increase of crime, and also to the fact, that since the alteration of the law, persons were less averse to prosecute. The lord chief justice, whose authority had been so much referred to on this head, had given it as his opinion that the crime was increased before the passing of this act. Many instances might be adduced to show, that in consequence of the rigour of laws, men were never prosecuted upon them. This was remarkably the case with regard to the punishment of death enacted against bankrupts secreting their effects: although the offence was well known to be extremely common, there had been only four prosecutions of it within half a century. Sir S. made some remarks on the maxim quoted by a member, "Nolumus leges Angliæ mutari," and showed how defective the laws would have remained, had it always been acted upon. He concluded with the words of the present master of the rolls, "that when the law was such as to be no longer executed from its repugnance to the manners and sentiments of the community, the time was come to repeal that law, and to substitute others more mild and more effectual."

The House then divided upon the third reading of the bill, when the numbers were, For it, 72; Against it, 34. Majority 38. The

bill was then read a third time, and passed.

On April 2d, Lord Holland in the House of Lords moved the order of the day for the second reading of the above bill. The short debate which this motion occasioned produced nothing new in point of argument, except the lord-chancellor's question, Was it an encouragement or a discouragement in the eyes of a man of common sense to commit a crime, that instead of being hanged if he com. mitted it, he could at the most be only transported? an argument, Lord Grenville observed, that if good for any thing, amounted to this, that it would be advisable at once, for every offence, however trifling, to enact the law of Draco. Lord Ellenborough on this occasion pronounced a splendid panegyric on the laws of England; and fon a division, the bill was thrown out of that House by 26 votes against 15. All the ministers, law-lords, and bishops present, voted against the bill.

On April 5th, Sir Samuel. Romilly moved the commitment of a bill to take away corruption of blood as a consequence of attainder of treason or felony. The bill having passed through the committee, Sir S. R. having moved that the report be received to morrow, proceeded to state his views respecting this measure. There were many persons, he said, who confounded corruption of blood, and forfeiture,whereas no two things could be more distinct. Forfeiture was always a punishment inflicted for an offence; corruption of blood was a consequence of the feudal law.

If the latter was intended for a punishment, it would be punishing the innocent for the crime of the guilty, and that sometimes at the distance of half a century. Corruption of blood prevented a man from being a link in tracing a pedigree from one remote relation to another. Could it be asserted that at the present day this extravagant subtlety and refinement should enter into the penal code of this country? Justice Blackstone had in many parts of his commentaries expressed himself hostile to this practice.

Further, the law was unequal in its operation, for in Scotland it was made to apply only to cases of treason by the act of Queen Anne, and in England, the county of Kent is excepted from its operation. Should such an anomaly be suffered to continue?

Mr. Yorke, in opposing the motion, avowed that he was one of those who were prejudiced in fayour of our ancient laws, at least so far, as not to acquiesce in any alteration of them until some strong case was made our to convince him of its necessity. He further made some remarks on the atrocity of the crime of treason, and the use of holding up the terrors of the law against it.

Some other members who spoke on the question took similar ground, not without strictures on the appa rent intention of the bon. mover to alter the whole system of our criminal laws. Some of them supported the bill as far as it went to do away corruption of blood in cases of felony, but would not agree to its abolition in cases of

treason.

Sir S. Romilly, in his reply, ob

served that he had been accused of having a system; which was true, if by having a system it was meant that, enacting or repealing one law, you considered the effect it would have on other laws. It had, however, been objected against him in another place, that he had not proceeded more systematically; so impossible was it for one who indiscreetly set himself up for a legislator to provide against all objections. He made some farther remarks on the inconsistency of the present law; and to the argument which had been advanced, that upon his principles we ought not to punish the guilty at all, because their fate affected their relatives and friends, he observed, that it did this only indirectly and inevitably, whereas corruption of blood punished the innocent directly and voluntarily, and the guilty only by means of a distant sympatby. And why not carry this reasoning a little farther, and inflict actual punishment on the relations, as had been formerly done?

In conclusion, the House divided, when there appeared, against receiving the report, 55; for it, 43. Majority 12. The bill was therefore lost.

Still zealous for his humane object, notwithstanding disappointments, Sir Samuel Romilly, on April 9, moved that the House should resolve itself into a committee on a bill for altering the punishment in cases of conviction for high treason; which being complied with, and the clauses of the bill being agreed upon, he moved that the report should be received on the 12th.

Mr.

Mr. Franklond objected to the bill generally, and moved that the report be received this day six months.

The opposition which ensued turned entirely upon the ordinary objections against change in the laws, and therefore need not be

reported. On a division, the numbers for the original motion were 60; against it, 73. The bill was therefore thrown out by a majority of 13.

Sir S. Romilly declared his intention of bringing it forward at a future period.

CHAPTER

N February 23d, a motion was

of Commons by Sir Francis Burdett, which, if not of present polical importance, touched upon a curious and interesting point of the constitution, and appears to have made a more serious impression on the house than might at first have been expected. The hon. baronet, in his introductory speech, after premising that he regarded it as an imperious duty to call the attention of parliament to a subject of the greatest magnitude, said, that it appeared to him that violent encroachments had been made on the true principles of the constitution, by those measures which had bern adopted in consequence of the unfortunate malady under which his Majesty is labouring. The first of these was in 1788, when it had been determined that the heir apparent to the crown had no more right to the government of the nation than any other subject. The steps taken at this period were justified on the plea of necessity; but in his opinion there were two principles which governed the whole of this question: 1st. That the powers and prerogatives annexed by the common law to the crown descend by hereditary succession, and not by election: 2dly. That its powers are never suspended; for if the func

tions of royalty were for any time to cease, one of the three branches of the constitution would be abrogated, and a dissolution of legal government would ensue. Both these principles, he thought, were unnecessarily and unwarrantably departed from at the period referred to. In 1810 this mischievous precedent was followed; the usurpation was renewed, and a fiction was resorted to, creating a phantom of royalty, in order to elect and appoint an executive magistrate. As a farther usurpation of power, restrictions were placed upon the person selected to possess some of the prerogatives of the crown, all of which were bestowed by the law for the benefit of the people. His object was, to prevent on future occasions this lawless assumption of authority, and to destroy that pretence of necessity, which in fact never existed, because many legal remedies remained. He did not mean to tie down the House to any distinct propɔsition, but simply to provide against any interruption in the exercise of the royal authority in the event of the death of the Prince Regent during the continuance of his Majesty's malady; he, however, did not hesitate to state, that in his view, it would be right to give to the regent powers as uncontrouled as those belonging to the king

himself.