HISTORY OF EUROPE. 



139 



he said, he would much rather see 

 lodged in the hands of the judges 

 than the juries. The Attorney 

 General argued, that the law, as 

 it stood, had all the power of pu- 

 nishment and prevention given by 

 the bills, and the power of death 

 in addition. Mr. Frankland said, 

 that however sanguinary our cri- 

 minal code might be in appear- 

 ance, there was not, upon its prac- 

 tical application, so mild a system 

 under the sun. Infact, many of our 

 laws were preserved only in terro- 

 rem. There was a discretion of 

 punishing desertion with death, in 

 the military code, and yet hardly 

 one of 10,000 deserters was put 

 to death. Our criminal code had 

 grown out of our commercial sys- 

 tem. In a country, too, where po- 

 litical and personal freedom was 

 so much enjoyed as among us, our 

 criminal statutes must of course 

 be numerous and severe. He was 

 averse to weakening the penal 

 code, the effect of which would 

 be more mischievous than the 

 House was aware of. It would be 

 better to leave the application of 

 the criminal laws to the conscience 

 of the juries, the discretion of the 

 judge, and the royal mercy, when- 

 ever it should be necessary. 



Mr, Wilberforce asked how ex- 

 perience argued upon this ques- 

 tion ? Why that the infliction of 

 capital punishments had become 

 comparatively unfrequent and un- 

 necessary ? "Out of 1,000 sen- 

 tenced, only one was executed. 

 Hence it was clear that the law 

 was unnecessary ; and that the 

 cxceptbn was the rule, while 

 tliu rule was the exception. He 

 could not help considering the se- 

 verity of our penal code as incon- 

 sistent, in many instances, with 



justice and humanity, and as a 

 disgrace to the character of the 

 country. He strongly recom- 

 mended the general establishment 

 of the system of penitentiary 

 houses. 



The SolicitorGencral admitted, 

 that it would be very beautiful if 

 the law could be so contrived, as 

 that a precise punishment should 

 be proposed for every individual 

 offence, without leaving any thing 

 to the discretion of those by whom 

 the law was administered. But it 

 would be wholly impracticable. 

 Let any one try his hand at such a 

 particularization, and he would 

 soon find the impossibility of 

 it. And even if it could be ac- 

 complished, so far from insuring 

 a certainty of punishment, it would 

 give the criminal the greatest op- 

 portunities for escape, both in the 

 mode in which the indictment 

 must necessarily be drawn up, and 

 in the hesitation which juries 

 would entertain in consequence. 

 This consideration seems to be of 

 great weight. He instanced se- 

 veral cases in which criminals had 

 speculated on their crimes being 

 only transportable offences ; but 

 it seemed, the dread of a capital 

 punishment was to operate on a 

 prosecutor, on witnesses, on the 

 jury, on every body but the indi- 

 vidual tempted to commit the 

 crime. Was that a rational sup- 

 position ? Under all these cir- 

 cumstances, the Solicitor General 

 tliought the present system better 

 than that proposed to be substi- 

 tuted. 



The Master of the Rolls said 

 it was evident, that either the law 

 or the practice must be wrong; 

 and whichever was wrong ought 

 to be remedied. Now the prac- 



