10] ANNUAL REGISTER, 1813. 



authority of lord EUenborough, 

 who had declared, that taking 

 away capital punishment from the 

 crime of privately stealing from 

 the person, had increased the of- 

 fence to an enormous and alarm- 

 ing degree; and said, that to his 

 opinion he should paj' more de- 

 ference than to the theories of all 

 thespeculativewriters 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 portation ought to be repealed, 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 se- 

 vere penalty. It was the system 

 of the law of England that a 

 greater punishment should be af- 

 fixed to crimes than it would be 

 always necessary to inflict, leaving 

 it tothe discretion of the judges to 

 diminish it, and he saw no neces- 

 sity for altering it, while the judges 

 were actuated by the feelings of 

 tenderness and humanity. He de- 

 precated the mischief resulting 

 from discussions which would pro- 

 pagate among the people a notion 

 of the crueltyof the laws by which 

 they are governed; and should feel 

 it his duty to resist the further in- 

 troduction 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 

 original state 'n which it existed 

 a century ago, before an experi- 

 ment 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 ad- 

 vantage of introducing certainty 

 into the feelings which pronounc- 

 ing the awful sentence of the law 

 should excite in the criminal him- 

 self and those who witnessed his 

 fate, and which must be rendered 

 quitevague by the fore-knowledge 

 that in not more than one case in 

 twenty the sentence was carried 

 into execution. The hon. gentle- 

 man also adverted with energy to 

 the necessity juries werelaid under 

 of trifling with the solemn obliga- 

 tions of an oath, to evade, under 

 the direction of the judge, the se- 

 verity of the law. 



After several other members 

 had spoken, with a repetition of 

 the former arguments, sir S. Ro- 

 milly made a concluding reply to 

 the objections that had been ad- 

 vanced against his bill. He said, 

 he was perpetually termed a theo- 

 rist, but it was upon fact alone 

 that he had rested, and his oppo- 

 nents were the real theorists with 

 theirgeneral arguments. Thenum- 

 ber tried for the offence in ques- 

 tion 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 argu- 

 ment against an existing law be 

 conceived, than that crimes in- 

 creased and multiplied under 



