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toleration to all our fellow-subjects by and political. That was a statement conwhom they are not approved." Ordered to lie upon the table.
tradicted by the fact. The privilege of returning members to both Houses of Parliament was a civil right, which was not fully enjoyed by the Irish Catholics. They could vote indeed for members to sit in the lower House, but not to the representative seats in the House of Lords.
HOUSE OF LORDS. Wednesday, February 17. PETITIONS AGAINST THE CLAIMS OF THE ROMAN CATHOLICS.] Lord Rolle presented a Petition from the inhabitants of Exeter, against the Catholic Claims. Viscount Sidmouth presented a similar Petition from the borough of Leeds. The clerk having read the title and part of the Petition,
Lord Holland inquired across the table if that were the whole? and being answered in the negative, he added, perhaps it was not the wish of the noble viscount to have the whole read.
Viscount Sidmouth begged the noble lord's pardon, but it was his wish that all the petitions on this subject should be read.
The Clerk then read the whole of the Petition; it stated that the petitioners should view with concern any ascendancy of Popish power; and that they should view with alarm Papists sitting on the bench of justice, or acting in the capacity of legislators. The noble viscount presented another Petition from the mayor and corporation of Berwickupon-Tweed, against the Roman Catholic Claims. This Petition was also read, and in one part it stated that the Roman Catholics of Ireland had uninterruptedly enjoyed their personal and civil rights, but that they ought not to be entrusted with political privileges
The Duke of Norfolk wished to ask the noble viscount, whether it was his intention to found any proceeding upon the Petitions he had presented?
Viscount Sidmouth was somewhat surprised at the question put by the noble duke, and did not see the propriety of any peer presenting a petition being interrogated as to his future intentions. The Petitions on their lordships' table were put into his hands by desire of the petitioners, and he had done his duty in presenting them.
The Duke of Norfolk disclaimed any purpose of the least offence to the noble lord, but was induced to ask the question from observing an assertion in one of the Petitions, which was false. In that Petition it was stated, that the Catholics in Ireland enjoyed full toleration of rights, civil
Viscount Sidmouth thought it was treating the petitioners with very undue harshness, to scrutinize with such severity the terms in which their fair and legal petitions to that House were couched. They came before their lordships with an humble but earnest submission of their feelings and opinions upon a subject, which to them appeared of the greatest importance to the national welfare; and while so expressing their sincere opinions he could not think it either decorous towards them, or compatible with the liberality and justice of their lordships to charge them with stating a falsehood."
Lord Holland perfectly agreed in the propriety of the noble duke's observations. When an allegation so material as that to which they referred, was set forth in a Petition to that House, it surely was incumbent on their lordships to ascertain whether it was true or false. Had the noble duke proposed the rejection of the Petition, there might have been some cause for alarm on the part of the noble viscount, but no such rejection was intimated. It was, however, of great importance, while such pains had been taken in every quarter of the country to excite alarms respecting the situation and claims of the Catholics, that their claims and situation should be fairly represented, and no material fact set down that could not be proved.
Lord Redesdale could not help considering the language and terms of the noble duke's observations, as tending strongly to deter petitioners from exercising their fair and admitted right of submitting their opinions to that House on any great national question. The noble duke appeared not to have heard distinctly, or accurately attended to the words as read in the Petition, where a guarded distinction seemed to be made between personal rights and civil privileges, on one hand, and political privileges, on the other. The distinction indeed, was so clearly marked in the language of the Petition itself, that he could not conceive how it should be misunderstood, much less how the petitioners should thereby have incurred the charge
The Lord Chancellor observed, that whatever variety of opinions might be entertained on the subject of the Petitions by the public, the meaning of the petitioners could by no means be mistaken. They saw a material difference between the privileges at present enjoyed and the new ones claimed by the Catholics, and to that difference they wished to direct the attention of the House. The temper and moderation which had been so conspicuously displayed throughout the country in the various discussions which in every part of it had taken place on the subject of the Catholics, was highly creditable to the public feeling, and he was confident that when that most serious and important question came before parliament, it would be met with suitable wisdom and moderation by their lordships.
The Petition was ordered to lie on the table.
HOUSE OF COMMONS.
Petitions against the Claims of the Roman Catholics were presented from the clergy and other inhabitants of Manchester and Salford; the Protestant inhabitants of Ar(VOL. XXIV.)
SIR SAMUEL ROMILLY'S CRIMINAL LAW BILLS.] Sir Samuel Romilly hoped, that in again drawing the attention of the House to a part of the general laws of the country, which he had already on a former occasion brought under their notice, he should not be considered guilty of any impropriety. The Bill which he at present meant to introduce was one which had twice passed that House; but had been rejected in the House of Lords. No person had more respect for the quarter from which opposition had come than himself, and if he imagined by again introducing a measure which had been considered impolitic, he should be supposed to act from the least disrespect to that quarter, no person could feel more concern than he would. But from all that he had observed since the last consideration of the subject, he felt he should not be doing his duty if he did not bring the subject under the attention of a new parliament. It would be in the recollection of the House, that in 1810, he had proposed to bring in three Bills; one of which was to repeal the act of king William, which rendered it a capital offence to steal property to the amount of five shillings privately in a shop; another to repeal the act of queen Anne, which pronounced it a capital offence to steal to the value of 40s. in a dwelling-house; and the third, to repeal the act of George 2, rendering it a capital offence to steal property to the same amount, from on board a vessel on a navigable river. These Bills were all passed in 1811, by that House, but were rejected by the Lords. At the present moment he should only move for leave to bring in that one which in the former discussions that took place was considered least objectionable; he alluded to that which related to stealing property of the value of 5s. in a dwellinghouse: and the principle upon which he should propose to introduce this Bill was precisely the same as that which he had before stated, namely, the inexpediency of penal laws existing, which were not in(20)
tended to be executed. This inexpe- | diency was strongly demonstrated by the returns of the criminal courts for London and Middlesex, during the years 1805, 6, 7, 8 and 9. He could not help here expressing his surprise that these returns had not, in compliance with the order of the House, been made to a later period. During these few years it 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 had been 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 effective 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 a 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 sentiment 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 instance: for without some extraordinary aggravation who was there with nerves strong enough to contemplate 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 those 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 40s. 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 40s. 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 execu tion 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 a 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 of such laws into effect.
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 Walcot 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, 8 William 3, 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 counsel in all reigns: that the strict execution was not imprac
*See New Edition of the State Trials, edited by Howell, vol. 9, p. 560.
ticable, for that tradition said, that Harrison, one of the regicides of Charles the 1st, did mount himself, and give the executioner a box on the ear after his body was opened." Ought then, this pu nishment 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 of fender'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 latter periods no such horrible exhibitions 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 into 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 punishment 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 Camden related, that in Babington's conspiracy, when fourteen individuals, found guilty of high treason in that reign, were left for execution, the seven first 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 in
flammation which men's passions had attained, that a Mr. Townley was executed in the plenitude of those attending 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 shewing 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 1, when David, prince of Wales, and the celebrated Wallace, were executed for having bravely and heroically maintained the interests and de nded the independence of their native land. The burning, in cases of petty treason and wichcraft, long remained a disgrace on the statute book; 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 of devising his property, it left him in fact without an heir, or, in technical language, disqualified him from tracing a pedigree. The hon. and learned gentleman said he should be ashamed to take up any more of the time of the House, although he could quote several passages of Mr. Justice Blackstone, in favour of his opinion, and concluded with moving, "That leave be given to bring in a Bill to repeal so much of the said Act as takes away the benefit of clergy from persons privately stealing in any shop, warehouse, coach-house, or stable, any goods, wares, or merchandizes, of the value of five shillings, and for more effectually preventing the crimes of stealing privately in shops, warehouses, coach-houses, or stables."
ward, he 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 propositions 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 crime 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, that if the obligation of strictly interpreting and literally enforcing the provision of the criminal law were imposed on the judges, no one 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, too, 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 alleged necessity and severity 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
The Solicitor General (sir William Garrow) said he did not propose to enter at large into the question in this early stage; but as he was not in parliament when his hon. and learned friend brought his Bills for