cross-examination, to confess his own guilt, which was never the case in England, except when an individual was unfortunately called to the bar of that House. No inference, then, ought to be drawn in favour of the present bill from the practice of foreign countries; and therefore unless his hon. and learned friend was prepared to inflict upon the crime of forgery some punishment already recognised by the law and the constitution, he would give his warmest opposition to the measure.

Mr. Buxton followed the solicitor-general (but did not attempt to reply to him) in a very elaborate speech, which dilated at great length on the general theory of penal codes, but did not state a single fact, or adduce a single argument, that bore directly upon the measure actually before the House. Dr. Lush ington spoke more to the purpose. The forgery of wills, he said, had been described as a very heinous offence; but it was also a very rare one. During a connexion of thirteen years with that court, before which all disputed wills must necessarily come, only three instances of forged wills had occurred, and in none of them had there been any prosecution. To forge a will was by no means an easy undertaking, particularly for the purpose of passing real property; because, in that case, it was necessary to forge not only the name of the testator, but also the names of three witnesses. The destruction of wills was a more dangerous crime. It was more easily effected, and it held out a much greater temptation. Any individual getting possession of an in

strument by which the property of a person recently deceased was devised, might, by destroying it, entirely frustrate the intention of the testator; and wills generally fell into the custody of those, who were more or less interested in the disposition of the property devised. Now, what was the punishment affixed to the perpetration of this crime? The House would be surprised to hear, that there was actually no punishment at all. Here, then, was a vacuity to be filled up in the criminal code; and he called on the attorney-general to introduce some measure for that purpose. It was a curious circumstance, that, during the last thirteen years, exactly the same number of wills had been feloniously destroyed as had been forged, namely, three: so that the offence which had a punishment affixed to it, had been just as often committed, as that the perpetration of which was not visited by any penalty. The solicitor-general had laid considerable stress on the forgery of marriage-registers, and had said, "Surely you would not take away the punishment of death from that offence." He (Dr. Lushington) could not, however, find any instance of that offence, either before or since it had been made punishable with death. He could not, therefore, see any reason for making it a capital felony, except our extraordinary anxiety for the multiplication of capital punishments. The punishment of death did not, it was evident, produce that salutary terror,which some individuals supposed. It might produce a good effect to a certain degree; but the question was, whether that good was not overbalanced

by the perjury committed by juries, who acquitted prisoners of capital charges, rather than subject them to the severity of the law. Those who were favourable to an alteration in the system balanced these two points, and decided that the greatest portion of good would be derived from an alteration of the existing system. Mr. Nolan opposed the measure on the very narrow, but very strong principle, that the bill itself, admitted death to be the proper punishment of forgery, in one case for the first offence, and in all other cases, for the second offence. Lord Londonderry (lord Castlereagh had now by the decease of his father succeeded to that title) spoke on the same side, declaring that he could not yet make up his mind to so great a change in the law, but that he had not come to a final and permanent determination against it. The attorney-general followed on the same side, and Mr. Wilberforce and sir James Macintosh on the other. The House then divided, and it was carried by a majority of 44, that the bill should go into a committee; the Ayes being 118, and the Noes 74.

On the 25th of May, the report of the Forgery Punishment Mitigation Bill was received, and agreed to by the House. Sir James Macintosh said, that giving way to the opinion of others, he should move to omit from its provisions forgeries of wills, of marriage-registers and licences, and of transfers of stock, and to leave the law, inflicting the punishment of death for those offences, as it stood at present. He afterwards consented to except also country bank notes.

The third reading of the bill was

fixed for the 4th of June, when petitions against it were presented from the bankers of the metropolis, and also from the bankers of Bristol. In the debate, sir James Macintosh was not a little perplexed to defend both his bill and the exceptions which he had admitted into it. The forgery of paper of the Bank of England was, he said, an offence of more mischievous consequence than other forgeries, and was therefore excepted from the general principles of the bill. The exception was made, not for the protection of the Bank, because the Bank did not pay the forged notes, but for the protection of the public, into whose hands they came. This kind of paper passed through all hands; it was taken by the ignorant and inconsiderate; it was received in moments of haste and inadvertence; and by persons who had neither leisure nor knowledge to detect the forgery. No private forgery was under similar circumstances. Private negotiable securities came into the hands of individuals, who were accustomed to examine signatures, and who, therefore, could more easily discover the forgery. The reasoning which he had applied to notes of the Bank of England, applied likewise to country bank notes; and, therefore, he had extended the provision to the latter, as part of the circulating medium of the nation. Further than this, he could not go in his concessions; but he did not think, that, in going so far, he was introducing any arbitrary distinctions.

It is clear that sir James Macintosh here abandoned the great principle of those who co-operated with him on this occasion; name

Jy, that capital punishment was not so sure a means of repressing crime, as other modes that might be devised. The whole question was, How will unprincipled men 'be most effectually deterred from forgery? It was admitted, that in certain cases where the good of society requires the most vigilant suppression of the offence, death 'must be inflicted: the fear of 'death was therefore allowed to be the best security against the crime.

After a keen debate, in which the attorney-general and Mr. Denman participated, the House divided. The Ayes were, 109; the Noes, 102; which gave a majority of 7 for the bill. After the division, Mr. Brougham stated, that, as lord Londonderry had thought proper to make the bill, even in this last stage, a subject of division and debate, he felt himself called on to say, that he agreed with his learned friend, and only regretted with him some of the "exceptions which had been introduced into the bill. He should heartily rejoice to find the bill receive the final sanction of that House; and he hoped it would elsewhere meet with the respectful attention, to which a bill that had undergone such ample consideration was entitled.

On the question being put, that this bill do pass," The Marquis of Londonderry rose and signified his intention of opposing it.

Sir James Macintosh objected most strongly to this manœuvre of the noble lord, observing that many of the friends of the bill had quitted the House, in the persuasion that no further opposition was intended. Since he had sat in parliament, he said, he had

never known so unworthy a manoeuvre practised. Sir James ended by moving, "that the House do now adjourn," and after a warm discussion, in which Mr. Brougham, lord John Russell, and lord Londonderry took part, the two former representing the proceeding as a parliamentary stratagem; a division was taken upon the question, that "the bill do now pass."

The numbers were

For the bill, 114; against it, 120; majority against it, 6.

The bill was thus lost.

The bills taking away capital punishment from the offences of stealing in dwelling-houses and on navigable rivers, passed the Commons, but in consequence of the opposition of the lord chancellor, were lost in the House of Peers.

Mr. Martin, of Galway, attempted another improvement of our criminal code, by introducing a bill for allowing the benefit of counsel to persons accused of felony. The second reading of the bill was moved on the 30th of March. The solicitor-general opposed it, alleging, that it would operate to the injury of the very individuals, whom it was meant to serve. He contended, that the judges were not only, in point of law, counsel for a prisoner, but that they were so substantially, entirely, and often astutely. If the bill passed, the prisoner would lose this advantage; for it would then become the duty of the judge to detect the sophistry and expose the fallacy of the arguments which might be used by counsel in his behalf. Besides, as the law now stood, counsel for a prosecution, knowing that the prisoner's counsel could not speak

for him, generally confined themselves to a dry detail of the facts in support of the prosecution. In treason, it was true, a prisoner had the advantage of counsel to address the jury, because there it was supposed he might be exposed to a formidable weight of power; and the law, therefore, fenced him round with privileges, the better to enable him to prepare his defence: but to extend the same mode of proceeding to other cases, would be a waste of the public time. There was also a strong objection to the form of the bill; for, though it empowered the court to assign counsel, it provided no fund out of which they should be paid.

Sir James Macintosh, in reply, admitted, that the general proceedings of the courts of justice in this country were perfectly irreproachable; but he was much surprised that the solicitor-general should have argued this question, as if the proposed bill were one which had been tried, and had operated unfavourably for a prisoner. His hon. and learned friend very well knew, that, before the statute of William 3rd, allow ing counsel in cases of treason, the law refused counsel to prisoners in all criminal cases. The statute of William was the first good fruit which grew out of the Revolution. Its benefit was universally felt as a safeguard for the subject; and he was at a loss to conceive, why the same advantage which accrued to a prisoner, in cases of treason, out of this privilege, would not also be felt in the same manner in other cases. It was remarkable, that all the arguments, used by his honourable and learned friend against the mo

He

tion, had been employed at the time of passing the statute of William, with the boldest metaphors and the most startling hyperboles. He thought, that, if this measure were tried, it would be found serviceable instead of injurious. There was a broad distinction between what a judge would do in behalf of a prisoner, and what his counsel might. That, which it would be the duty of a counsel to do for his client, would be criminal if done on the part of a judge. His hon. and learned friend had argued this question, as if there were no experience of the operation of such a bill elsewhere he had overlooked the invariable practice of Scotland, where any prisoner might have the advantage of counsel. (sir J. M.) did not confer this privilege, to enable criminals to have a better chance of escaping; for their escape he thought the greatest slur upon the practice of the law; and to prevent it, had always been his aim in his attempts to reform the criminal code: his object was, not that these should escape, but that the innocent should have a better protection. The utmost that could result from agreeing to this measure would be, that a greater number of guilty persons would be convicted, which must be regarded as a good and not as an evil. The whole of the doctrines, which his learned friend contended for, were irreconcilable with the advantages which were contemplated by the statute of William; and they proceeded on the supposition, that that act, instead of being beneficial to persons charged with high treason, was, in fact, detrimental to them.

Sir J. Yorke remarked, that the

hon. gentlemen, who supported the bill, left out of their consideration one point, which he conceived to be very valuable to the country-namely, "time." Suppose a counsel to be "boring" on one side of a case for two hours, and his opponent to be "bothering" for a like period on the other (and he never knew any of those gentlemen, who would not insist on his full portion of time), what must be the consequence? The solicitor-general had stated that 3,000 capital cases were tried in a year; and, allowing counsel four hours to each case, it gave a total of 12,000 hours. Then it would be necessary to have a double allowance of judges and jurors; and even with that double allowance, they would be under the necessity of keeping watch and watch.

The bill was negatived without a division.

Mr. Kennedy, on the 14th of February, directed the attention of the House to several supposed defects in the administration of justice in Scotland, and particularly to the faulty mode of constituting the juries in all criminal cases except treason. The established practice, he stated to be as follows:-From each county, a list of 45 persons is, previously to the circuit, returned by the sheriff to the justiciary office at Edinburgh; and from these lists of all the counties contributory to each circuit town, containing altogether 90, 135, or 180 names, according as there may be 2, 3, or 4 contributory counties, the judge selects 45 who compose the grand assize. These 45 persons appear in court on the day of trial; no challenge can there be made to the array;

and from them 15 are selected by the judge to try the particular case. The remedy which Mr. Kennedy proposed was, 1st, That the jury should be constituted by ballot : 2ndly, That the prosecutor and prisoner should each have a right to three peremptory challenges. These alterations were certainly very moderate, and no doubt can be entertained, but that they would be improvements. The objection to them was, that no inconveniences were felt from the present system; and as the government and law officers of Scotland showed a determi nation to resist the proposed changes, Mr. Kennedy deemed it vain to press forward his mea

sure.

The greater part of the provisions of the act of William III., relative to trials for treason, had been long ago extended to Ireland; but there were still two of its regulations, the benefit of which was not enjoyed by that part of the empire; namely, one requiring an act of treason to be proved by two credible witnesses, and the other, that a prosecution for treason must take place within three years after the commission of the treasonable act. A bill was passed, under the auspices of lord Holland, extending these provisions to Ireland. Yet the common appeal to experience might have been made here, as well as in the case of Scotch juries; for it might have been affirmed, that no practical oppression had ensued from the imperfections of the Irish law of treason.

A commission had been ap pointed in 1815, to inquire into the state of English courts of justice. No more important subject