cases of more atrocious offences, where the feelings of mankind naturally agree with the criminal law? I have seen juries paying great attention in such cases, but I never saw them otherwise affected than by being extremely careful, but not in any degree to be too much swayed by motives of humanity. I have been often surprised, and once indeed for 19 hours of an end, to see the unwearied attention of a jury, not one of whom, as far as I could observe, being inattentive for a single moment. It has been thought, that the circumstance of sentence of death being very frequently pronounced on many offenders, which is not intended to be inflicted, has a tendency to diminish the terror of the punishment. Does your experience agree with that observation?-I have thought for many many years, that there was a great impropriety in passing the solemn sentence of death upon 18 or 20 people, not one of whom could with any sort of propriety be left for execution ; and most of whom, especially in London and other very populous places, were very confident in their own minds that they would not be left for execution; my own idea being, that the criminal law should be ingenuous, and that it should speak distinctly what a criminal is to expect; and that the execution of that sentence should be as nearly infallible as possible; which, if moderate, could well be afforded; subject always to the interposition of the crown. severity of the penal laws in the revenue department ?-When I held the office of attorney-general and solicitor-general, of course I had a good deal to do with the drawing of those acts; and I was always an exceedingly strong advocate for the milder course; because such cases were generally of such a nature that a man might be ruined by a conviction, and the conviction in the lower penalty in all reasonably clear cases was almost infallible. That was the principle which I myself followed. It may be worth the consideration of the committee, to remark on the state of the law with respect to forfeiture; that there is one case which, though it may not come within the range of your inquiries, may deserve your attention. I allude to the case of felo de se. It may not be totally foreign to your object, to see how the law of forfeiture stands with respect to that case. When a man kills himself, that unhappy act is attended with the forfeiture of all his goods. That is, when a family has thus lost its support, it is also to lose all possible means of subsistence. One cannot help observing, that there is something disgusting and brutal in that. When a man commits an act of that sort, his reason has been overturned and he does not look to the family, and his mind is in a state of disturbance which very nearly approaches to insanity. I take the origin of this punishment to have been in catholic times, that when a man avoided extreme unction What is the result of your ex- he was not permitted to be perience with respect to the buried in consecrated ground, which to the feelings of persons of that persuasion is very important; and why should the survivors have the mortification of knowing, that the corpse of their father or husband is disgraced? it is punishing them when the unfortunate man himself is beyond the reach of temporal punishment. With respect to cases of capital felony, there is a forfeiture of land to a certain extent, the freehold going to the king during the life of the felon. The goods are irretrievable, and afterwards the king has what is called his "6 year and day and waste;" which last, formerly, was literally put into execution, but that has not been the case now for a great length of time. That too is attended with a visitation of poverty on the family, and proceeds upon a principle which I am afraid has little operation upon the depraved minds of felons, which is the well-being and comfort of their families. It is supposed, that that would have a hold upon mankind, which does not seem to be the case, as capital felonies, we all know, are, if any thing, increasing. It is too refined a principle to be acted upon by such persons. Is the law in the respect of forfeiture now carried into execution? Yes, the king may do it, but the felons generally have nothing, and therefore it is not worth pursuing; but the king may do it upon the whole, I have always considered that the certainty and not the severity of punishment, will best repress crime. Do you think, that much more terror is caused by an execution of one in twenty than by an execution of one in sixty? Do you mean more effect on the public? Yes. Upon my word I do not know what to say. Frequency of execution I have no doubt has a bad effect. You are well aware that it has often been observed, that more offenders escape justice from flaws and informalities in this country than in any other. Now, although that is to be considered as the result of a precision necessary in the administration of the laws of a free country, do not you think, that in some measure it may be imputed to the disposition of judges as well as juries to favour the prisoner, in consequence of the disproportionate severity of the punishments?-It is very certain, with respect to myself at least, that I would always desire to give the prisoner the benefit of every thing that I could discover in his favour. I knew it perhaps when he did not, and I always felt it my duty to be counsel for him; as the common expression is; and I cannot but say, that where the punishment is very disproportionate to the offence, I would always lean to the merciful side, if I could with satisfaction to my own mind. Do you think that it would be expedient that capital punishments should not be materially extended beyond crimes affecting personal safety ?-I think myself, that against treason, murder, arson, rape, and crimes against the dwelling house and person, and some others, the punishment of death should be directed; but I always I always thought that the antidote to many crimes is hard labour, confinement and regular diet; when I say regular diet, I mean that they should have no indulgencies of gin, or such kind of things. The people of England being as moral and religious a people of all mankind. It is quite enough to say, that out of about 230 felonies that exist by the present laws, it is seldom that more than from a dozen to twenty of them, when committed, are capitally punished. Excise, examined. Are you very well acquainted with the statute of 52 Geo. III., cap. 143?-I cannot say I am very well acquainted with the statute. It was passed, I believe, upon the recommendation of a committee of the Lords in 1812. I was examined before that committee. It was a consolidation act, remitting the punishment of death for all revenue offences except those therein specifically mentioned. My evidence went to deprecate the making offences against the revenue punishable as crimes, unless where committed with violence; and I understood it was ultimately determined, to confine the law to those species of revenue offences where the fraud was a forgery, or accompanied with violence. as any in the world, do you think T. W. Carr, Esq. Solicitor of that this phenomenon of the number of crimes results from the severity of the laws ?-I certainly think, that the chances of escape are much greater in cases of severe punishment than in those to which a more moderate punishment is attached; and, as I said before, were punishments and crimes better adjusted than they are, crimes would be fewer; and there is another very great thing that arises from the chances of escape in cases of severity; namely, that every one who is executed thinks himself hardly dealt with: I was going to add, that when a criminal code is of such a nature that you shrink from the execution of the letter, it pretty plainly shows that that letter should be modified in some shape or other. A statute which, if executed, would shock the feelings of mankind, must have some defect in it. There are certainly instances in the letter of the law, which, if put in execution, would shock mankind; as, for instance, if a man were to suffer the execution of the law for doing some damage to one of the banisters of Westminster bridge, or for breaking to pieces a small cherry tree, not worth half-a-crown, it would be an extravagant degree of severity, which would shock the feelings I stated to the Lords' committee, that the efficacy of criminal law, if it were thought fit to apply criminal law to the security of the revenue, depended not more upon the means of detection, than the sufficiency of motive for prosecution, and the facility of conviction. The officers in their survey have generally the means of detection; but it has been found necessary, in order to excite their activity and stimulate their zeal, indeed to preserve preserve their integrity, to give them a certain share in the penalties in which they may convict offenders. The moment the offence is made a crime this motive is entirely taken away. The officer has perhaps to undergo, and generally does undergo, a considerable degree of obloquy in convicting a man who has committed an offence against the excise laws in a penalty; this becomes considerably increased if he subjects the trader under his survey to a personal punishment. But it will be easily conceived by the committee, that the officers, in addition to having to withstand the shame and discredit that are thrown upon them by the detection and conviction of a trader, have also to support themselves against the influence of the bribes which are offered them to collude in the evasion of the duties. Now both operate in conjunction against his integrity, where the offence is made a crime. The obloquy becomes more terrible, and the influence of the offered bribe becomes greater also; all motive of benefiting himself or his family by conviction is taken away, and he stands a personal sufferer without reward. When, therefore, the revenue is attempted to be secured by making the breaches of its laws crimes, it is the fraudulent trader who is secured and not the revenue. I believe that it will rarely be found that an officer, under such circumstances (and he alone is likely to come forward as a prosecutor), would make the offence known; would willingly subject himself to the obloquy which would arise from bringing such an offender to death or transportation; but where the trader is liable to only a pecuniary penalty, no such difficulty or reluctance is experienced. The excised manufactures to which stamps denoting the charge of duty apply, are printed goods, such as paper and calicoes, hides, and paper in general, and starch. There are two other subjects of forgery, debentures and permits, for which we prepare the paper. The word Excise Office is a water-mark, and it is made penal to forge it. One sort of offence against the revenue which it was the tendency of your evidence to subject to capital punishment, the committee understand you mean to state, was violent resistance?— According to my impression, it was rarely violent resistance; and it appeared to me, that the objections which I had the honor to submit just now applied to excise forgeries just as much as to any other frauds; for much as may be written or said on this subject, the people will never be brought to feel or admit, that to defraud the revenue is a moral crime; and therefore they will continue to follow with the severest obloquy the officer who is the prosecutor and instrument of bringing any individual to the punishment of death for such an offence. There is another reason against it, which has also considerable weight; I mean the difficulty of conviction which attends trials for criminal offences; as for instance, for forging an impression of an excise stamp, compared with a trial of the same offence when subject to a penalty. It is a maxim established by innumerable determinations in the court of Exchequer, that any trader who enters his premises for the purpose of carrying on a trade under the excise, is civiliter responsible for a breach of the revenue laws, committed by his servants, on his entered premises in such trade, but criminaliter the offence must be brought home to himself; and therefore fifty instances might occur, in which the commissioners of excise, who make all orders for prosecutions, might be perfectly satisfied that such offences were committed on certain entered premises, for which they could with no hope of success make an order to proceed as for a crime, though they might for a penalty. The committee understand you to give this as the result of your experience, arising out of many years' experience and observation upon offences committed against the revenue laws?-Yes; I believe I may add one material fact. The offence of putting a forged stamp on paper was first made criminal about the year 1806 or 1807; before that time it was a penalty of 500l., and it had been by no means unusual before that time to convict persons guilty of the offence in that penalty. I am not sure whether any convictions have taken place or not, but certainly very few, since it has been made a crime. The committee would ask, generally; does your own experience, with regard to the revenue, lead you to believe that VOL. LXI. the laws become more inefficient by becoming more severe ?-If by severity is meant punishment, I should think they did; as far as relates to the making frauds crimes, I am perfectly certain they do. It is a very common thing with respect to penalties, for traders requesting a liberty to do what is objected to by the board (who always attach greater consequence to laws of prevention than to laws of punishment) because it facilitates the commission of a fraud, to say, "Grant us that, and secure it against fraud by any penalty you please; let it be one or two thousand pounds." It is perfectly well known, that such penalties never are or can be enforced to their extent, therefore they amount in their excess to nothing but penalties upon paper, which experience shows to be nothing. The committee understand you to say, that the great increase of the penalty tends to an impunity of offence?-The increase of a penalty beyond what can be levied, or what the offence can be supposed ever to merit, must be inefficacious. There is a class of offences criminal at common law, of which the committee are no doubt aware, and which belongs not only to the excise but to every branch of the revenue, and appears to me to give as great power of punishment as ever can be desirable for revenue frauds unattended with violence, that is conspiracy. Wherever the trader and officer, or any other person, combine together to commit a fraud, that is a conspiracy at common law, and they are liable 2 A to |