course for his honourable and learned friend to have pursued was this to have again brought forward those measures, which the report of the committee had recommended, in order that the House might see the remedies which it was intended to apply to the grievances complained of; but instead of doing this, his hon. and learned friend had left the House entirely in the dark as to his intentions, and had confined himself to dark and vague generalities. The ground, continued the attorney-general, on which the present motion was defended, was, that the effect of the criminal law, as it now stood, was to increase the quantity of crime. Now, his hon. and learned friend could have no other grounds on which to rest his assertion, than the number of individuals convicted and executed for any given offence; and if so, the returns of those numbers did not bear him out in the proposition which had been advanced. Besides, his hon. and learned friend was inconsistent in the line of argument which he had himself used. His hon. and learned friend concurred with the statement contained in the report of the committee on the criminal laws namely, that there were crimes-for instance, burglary, theft, murder, and robbery-to which it was still fitting that the punishment of death should be attached. Now, it so happened, that upon all offences of the nature above specified the punishment of death did not invariably follow; for there were such gradations in the moral guilt of them, that it would be impossible to inflict such punishment upon every instance of them without exception. But

some

he found, upon inspecting the returns, that the offences he had just named had gone on in the same ratio with the offences mentioned by his hon. and learned friend; and he therefore contended that the argument of his hon. and learned friend, if it applied to the one species of offence, applied with equal strength to the other. It was also a fair inference from his hon. and learned friend's argument, for any person to state, "Your not always applying capital punishment to burglary and murder, leads to an increase of those crimes; and therefore, to diminish the fre-. quency of them, you ought to abolish the capital punishment for them, and to substitute a lighter and secondary punishment in its stead." But his hon. and learned friend was not true to his own principles, for he had declared that he had no wish to abolish the punishment of death in those cases, though he had not given any reason for continuing it in the one case, and discontinuing it in the other. The principle of English law was, not to have a scale of punishment adapted to the exact quantity of crime committed, but to have a known and specific punishment for each species of crime, and to leave that punishment to be mitigated by the crown and the executive government, whenever circumstances seemed to demand or justify lenity. It had been argued by his hon. and learned friend, that where the law affixed death to an offence, but a minor and secondary punishment was usually inflicted in lieu of it, there it would be better to remove the greater punishment entirely, and to continue the less with undeviating constancy. Now, to that

argument he could by no means yield his assent; for even though the greater punishment were but seldom inflicted, it would still leave a strong apprehension on the mind of every criminal. In corroboration of the doctrines he had advanced, the attorney-general then read extracts from certain returns laid upon the table, from which, it appeared, that, in the last year, 283 persons had been convicted of burglary, of whom only 18 were executed; and 133 of robbery, of whom not more than 23 had been executed. In the year 1820, 101 persons were convicted of forgery, of whom 20 were executed; and in 1818, 86, of whom 24 were executed. In the year 1820, 128 persons were convicted of housebreaking, of whom 3 were executed; and in 1821, 167, of whom 5 were executed. After reading this extract, he again contended, that as so many individuals had been convicted, and so few executed for the crimes in question, the punishment of death ought, upon the principle of his honourable and learned friend, to be abolished for all of them; a length to which no one was yet willing to go. With regard to the comparison which had been drawn between the state of the criminal law in France and England, it was enough to ask, whether any one would wish to introduce into this free country the police and criminal law of France? Unless the preventive police of France, and the whole system of Napoleon, were taken into consideration, any person making a comparison be tween the criminal code of France and that of England, and founding his notions upon the number of criminals convicted and executed

in each country, would be certain to arrive at a very erroneous conclusion.

Mr. Courtenay and Mr. Peel. having made some objections, rather to the wording than to the principle of the motion, sir James Mackintosh consented to modify it by leaving out the latter part of it, His reason for this was, that the attention of government, as Mr Peel stated, had for some time been, and was then very anxiously directed to the subjects of prison discipline, transportation, and the improvement of the police; and new plans relative to these points were in considerable forwardness. The resolution in its altered state, said sir James Mackintosh, pledged the House to no principles but those which they had session after session recognized; therefore no injury could possibly follow the adoption of his resolution. By entertaining it, the House would give a proof of their intention seriously to adopt measures for the amendment of the criminal code. They would thus invite persons of knowledge and experience to lay their sentiments upon the subject before parliament. The resolution would, in fact, serve as a notice, as well to the profession of the law, as to all others, to supply that House with all the information they could impart on a question, which required all the wisdom, the learning, and ability of the nation.

The question was then proposed, "That this House will, at an early period of the next session of parliament, take into their most serious consideration, the means of increasing the efficacy of the criminal laws, by abating their undue rigour," and the previous question

being put, the House divided: Ayes, 117; Noes, 101. Majority in favour of sir J. Mackintosh's motion, 16.

Several particular alterations of no small importance were this year made in our criminal jurisprudence. By the 53 Geo. III, c. 162, persons convicted of felony with benefit of clergy, or of grand or petty larceny, might be doomed, as part of their punishment, to be kept to hard labour. A similar provision was now extended to all who should be convicted of any of the following offences-any attempt or assault, with intent to commit felony; any riot; any misdemeanor for having received stolen goods, knowing them to have been stolen; any assault upon a peace-officer, an officer of the Customs or Excise, or any other officer of the revenue, in the proper execution of their respective duties, or upon any person acting in aid of such officers; any assault committed in pursuance of any conspiracy to raise the rate of wages; being an utterer of counterfeit money, knowing the same to be counterfeit; knowingly and designedly obtaining goods, money, bills, or other securities for money, by false pretences, with intent to cheat any person of the same; keeping a disorderly house, or a common gaming house; wilful and corrupt perjury; subornation of perjury; having entered on any lands with intent there illegally to take or kill game or rabbits, or to assist others in so doing, and having been found there at night armed with any offensive weapon.

By another act,t the laws

3 Geo. IV, c. 114. + 3 Geo. IV. c. 24.

against the receivers of stolen goods, were extended to the receivers of stolen bonds, bank-notes, and other securities for money.

Notwithstanding the general spirit, which now prevailed in favour of lenity, there were some offences with respect to which it was deemed necessary to arm the law with new vigour. Manslaughter, the utmost penalty of which was, formerly, only twelvemonths imprisonment, was now made punishable with transportation for life, or for any term of years; or with imprisonment and hard labour, for any term not exceeding three years. Servants, clerks, and apprentices robbing their master, were also made liable to imprisonment and hard labour for three years, or to transportation for fourteen years. Where persons persuading or instigating others to the commission of theft, were, according to the old laws, punishable only by fine and a year's imprisonment, they were now subjected to transportation for seven years, and to imprisonment and hard labour for three years. It was also enacted, that accessaries accessaries before the fact to burglary, robbery, or grand larceny, where the principal felon had not been convicted, might be imprisoned and kept to hard labour for two years.

Mr. R. Martin introduced a bill to prevent the improper treatment of cattle. It provided, that any person accused of wantonly and cruelly beating, abusing, or illtreating any cattle, might be summoned before a magistrate, and if convicted, either upon his own confession, or by the oath of any witness or witnesses, should be fined

3 Geo. IV, c. 38.

in a sum not exceeding five pounds, and not less than ten shillings. Several members opposed the measure; and among others, the attorney-general and Mr. Scarlett. Even the philanthropy of Mr. T. F. Buxton shrunk from the vagueness and indeterminateness of this measure. Mr. Martin, however, persisted, and his bill passed into a law. Dogs, cats and pigs, together with the whole of the finny and feathered creation, yet remain to be taken under his protecting care. Many of these are surely not less liable to be illused, and are not less worthy of the patronage of the legislature, than calves or mules.

The state of the bankrupt laws also attracted some attention, and a few improvements were made in this department of our jurisprudence.* Where a joint commission had issued against several persons, and all the partnership debts had been discharged, and likewise all the separate debts of any one of the partners, but not of the others, that one partner was enabled to apply to have the commission surperseded as against him. It was further enacted, that one partner might be entitled to his allowance, though none was due to his co-partners. The commissioners were empowered to commit all persons summoned to attend them as witnesses, who should refuse to come or to give evidence, or to produce any books or writings which were in their possession. The assignees, also, were enabled to execute any powers, which the bankrupt would have been entitled to execute for his own benefit. Another new enactment of considerable importance,

3 Geo. IV. c. 74 and 81.

was, that any creditors, who could have petitioned for a commission against all the partners of a firm, might petition for a joint commission against two or more of the partners. Several minor regulations were made with respect to the voting in the choice of assignees, and the proof of proceedings in bankruptcy.

The most important alteration in our jurisprudence, which took place in the present session, was effected by the New Marriage Act. Within the preceding five years, three bills on this subject had been passed by the Commons, varying in form from each other, but agreeing in substance. All these had been rejected: but now the fourth attempt was successful; and the Lords, not satisfied with the bill sent to them from the Commons, carried the principle of reform infinitely further than the lower House had contemplated. The act of 1754 declared null and void all marriages of minors, celebrated without the consent duly given of certain specified persons. The bill passed by the Commons had two objects; one to give validity to marriages, which according to the existing law were null, but had not yet been declared void by the sentence of any competent court; the other, to provide, that the marriages of minors, celebrated without due consent, should be merely voidable, and not void, and that they should be liable to be annulled, only during the minority of the partics, and at the suit of parents or guardians. The retrospective part of the bill was retained by the Lords, and it was the only part of it which was retained; all the other provisions were, after repeated discussion, rejected. In their stead, the princi

ple was adopted, that there should be no such thing as nullity of marriage; and by eight verbose and cumbersome clauses, a multitude of forms and affidavits were prescribed, the omission of which however, did not invalidate the ceremony, though it might be visited with severe punishment.

In every stage of the measure in the House of Lords, it was violently opposed, and by those whose opposition was generally most efficacious. The lord chancellor, lord Stowell, lord Redesdale, and lord Colchester resisted it in toto; and, with respect to many of the provisions, lord Liverpool agreed with his learned friends in thinking them impolitic and unjust. Even on the third reading, the opposition made was strong and ardent. First, lord Stowell moved, but without effect, to omit the clause which declared marriages once solemnized, to be indissoluble.

Then the Lord Chancellor moved an amendment on the retrospective clause, to the following effect-viz. "Provided that no marriage by licence heretofore concluded without consent of the natural or putative father, shall be deemed to be valid, if the parties did at the time of the marriage know that such father was living, and had refused his consent."

Lord Ellenborough objected to the proviso, on account of the difficulty of finding legal proof of the knowledge of the parties.

The Earl of Liverpool was not friendly to the retrospective clause as it stood. He wished an exception had been made, saving all suits pending, but that had not been done. He confessed, how ever, that he could not approve a clause such as that proposed, which

depended upon proof of a nature extremely difficult to be obtained.

Their lordships divided :-Contents, 18; Not-contents, 68 8; Majority against the amendment,

50.

The Lord Chancellor then proposed a clause for rendering valid deeds, assignments, and settlements made by persons having claims on property affected by this bill. He said he should first propose it without the words " upon good and valuable consideration," and if rejected in that shape, would propose it with those words. The Earl of Liverpool supported the clause.

The Marquis of Lansdown contended, that the clause proposed by the learned lord would produce a monstrous state of things. It would declare children legitimate, but would disinherit them of their property; it would people that House with titled beggars, enjoying the honours of their ancestors, but stripped of the means of supporting those honours. If their lordships adopted this proviso, they would leave existing possession subject to endless litigation and fraud.

Lord Ellenborough hoped, after their lordships had agreed to the retrospective clause, that any attempt to render it nugatory by provisos like the present, would prove unavailing. The course proposed was one, which, as guardians of the public morals, their lordships could not adopt; for it would introduce a system of lefthanded marriages in the true German style-marriages which gave legitimacy, but not property.

Lord Redesdale contended, that to destroy reversionary rights retrospectively, was downright robbery.