138 ANNUAL REGISTER, 1810. 



terations in the criminal laws ot 

 the country. The indiscriminate 

 apphcation, he said, of the sen- 

 tence of death to offences exhi- 

 hiting very different degreesof tur- 

 pitude, had long been a subject 

 of complaint in this country. 

 Nothing, in his opinion, could be 

 more erroneous or mischievous 

 than, that certain punishments 

 should be allotted to particular of- 

 fences ; and that the laws so laid 

 down, should not be acted on, and 

 peremptorily enforced. Our law, 

 as it now stood, instead of operat- 

 ing as a preventative, was a mani- 

 fest cause of tiie commission of 

 crimes. The infliction of capital 

 punishments was the cause of 

 crimes, by holding out a prospect 

 of impunity. The character of 

 the age, the circumstances of the 

 times rendered it impossible, that 

 all the convictions for stealing in 

 shops or private houses, and other 

 offences of that class, should be 

 carried into execution. Judges, 

 jurors, prosecutors, and the crown 

 were all responsible for the statutes 

 in those cases to be carried into 

 effect. On an average of 7,19G 

 persons committed in the years 

 1808 and 1809, for those offences 

 which the law calls capital, only 

 one had been executed. If an of- 

 fender against the laws were quite 

 certain that punishment would 

 most assuredly follow, the slightest 

 degree of punishment altogether 

 unavoidable, would be sufficient 

 to deter him from offending. He 

 had it in view, therefore, to move 

 for " leave to bring in, 1st. a bill 

 to amend the act of king William, 

 as to privately stealing in shops, 

 warehouses, &c. to the value of 

 five shillings. 2ndly. A bill to 

 amend the act of Anne, as to 



stealing in a dwelling-house to the 

 value of forty shillings. 3rdly. A 

 bill to amend the act of George 11. 

 as to stealing on navigable rivers, 

 &C. to the value of forty shillings." 



On the motion for leave to 

 bring in the first of these, Mr. 

 Windham observed, that what- 

 ever might be the limits applied 

 to discretion, there must still be 

 not only a gradation of offences, 

 but of guilt, in different perpe- 

 trators of the same legal offence ; 

 and that there must necessarily 

 exist in some living tribunal a 

 power to proportion the punish- 

 ment to the degree of moral guilt. 

 Now it would be much better, 

 that this discretion should rest 

 with the judges than with juries. 

 The Solicitor General and the 

 chancellor of the Exchequer were 

 of the same opinion. Leave, how- 

 ever, was granted to bring in the 

 bills, nem. con. The report of the 

 committee on these bills vyas 

 brought up on the first of May, 

 and the amendments proposed 

 severally agreed to. 



But on the question, " that the 

 bills be engrossed," a long debate 

 arose. Mr. Herbert asked, if the 

 punishments in use were not to be 

 retained, where were we to seek 

 for others to be substituted for 

 them ? Such as might be neces- 

 sary to put down occasional acts of 

 violence; for instance, those of the 

 White boys of Ireland, or rather 

 banditti? Sir John Newport con- 

 tended, that crimes were more 

 effectually prevented by the cer- 

 tainty, than the severity of punish- 

 ment. — Mr.Davie Giddy said, that 

 in his view of the subject a cer- 

 tain degree of arbitrary discretion 

 was absolutely necessary in all ad- 

 ministrations of justice; and this, 



