HC Deb 23 June 1840 vol 55 cc18-41
Mr. Kelly

rose, pursuant to notice, to move for leave to bring in a bill for the further abolition of the punishment of death. It would be a source of unmixed gratification to him, if through any effort of his, the improvement which he sought to introduce into the criminal law of this country should be effected. He believed the alteration he proposed would tend alike to further the ends of justice, and to improve the national character. He was quite aware of the many difficulties that surrounded the consideration of this question. He was aware how difficult it was—when the public mind was agitated, as it was at this moment, by the recent perpetration of crimes and enormities of the blackest die —he was aware how difficult it was for any hon. Member to propose to Parliament, under, such circumstances, a bill of this nature. But it was the system under which those crimes had been committed, that he sought to modify. He thought it was impossible not to feel that the time had at length arrived when some further abolition of capital punishment should take place. Before he called attention to the kind of offences in respect to which he now proposed to abolish capital punishment, he might remark that out of the 180 descriptions of crime in which the punishment of death had been abolished by the bills that had been passed at the instance of the noble Lord opposite, in not one single instance had that amelioration of the law been attended with any increase of those particular crimes; on the contrary, in the great majority of them a considerable diminution had resulted. He regretted much that the motions that had been brought forward by the right hon. and learned Gentleman, the Member for the Tower Hamlets (Dr. Lushington), and the hon. Member for Wigan (Mr. Ewart), when the measures to which he had alluded were under consideration, had not met with the sanction of the House, but he trusted that the principles which they advocated in common with himself, would soon obtain both in that House and in the country, and that full effect would be given to their humane and benevolent intentions. He (Mr. Kelly) did not now propose such an extensive alteration of the existing law as in former Sessions had been advocated by those hon. Gentlemen, because as it appeared to him that the sense of the House, and, perhaps he should add, the sense of the country, having been declared against the abolition of capital punishment in all cases, it would be useless for him, at the present moment, to attempt to press, in opposition to that opinion, so general and extensive a measure. For this reason, the abolition which he proposed in this bill did not extend to the case of murder. He had certainly intended to include within the operation of this bill these numerous and grievous offences which came under the denomination of high treason; and, as his opinion was still unaltered, he felt it due to some hon. Members of the House (who he was most proud and happy to say agreed in his opinion) to state the reasons why he was compelled to except from his bill the case of high treason. It might not be known to the unprofessional Members of the House, that even the most atrocious and dia- bolical act of high treason, the taking away of the life of the sovereign of these realms, would not be punishable as murder, as the offence of murder, great as it was, would be merged in the higher crime of treason. If, therefore, he were to include the crime of high treason in the scope of his bill, the result would be this—that while the murder of a subject was punished with death, the murder of the sovereign would be punishable only with transportation for life. Such a state of the law would be absurd in the highest degree. The only way in which he could have avoided such an anomaly would have been by the introduction of a clause in his bill including as punishable with death all attempts upon the life of the sovereign, and of course the actual murder. But he had a conscientious objection against visiting any crime whatever with the punishment of death, and he therefore could not introduce any such clause into his bill. These were the grounds, added to the opposition which he must have expected from her Majesty's Government, which induced him to except the case of high treason. He felt that it would be extremely desirable to extend the operation of the abolition law to Ireland. He knew no reason why any difference should exist between the laws of the two countries with respect to the punishment of death. He had, therefore, wished to extend his bill to Ireland, ay, and to Scotland; but he had found that there were doubts whether the majority of the Members connected with Ireland would agree to it. He had held communications on the subject with several influential Irish Members, and he had now every reason to believe that he should have been supported by them in such a proposition, but unhappily that communication was too late to enable him to make the necessary alterations in his bill without endangering its passing through the Legislature at this period of the Session. For this reason, and this reason only, the present bill would not apply to Ireland; but, upon the sanction of the House being pronounced upon his bill, he should be happy to bring in a bill extending the whole provisions of the present measure to Ireland, and if he received a like assurance from Members connected with Scotland, to Scotland also. It had been objected to his bill, that he ought not to abolish the punishment of death without the substitution of some adequate secondary pu- nishment for the prevention of crime. He was free to admit that the law as it now stood did not provide any efficient or adequate secondary punishment for the punishment of death. It was, however, one thing to make this admission, and another to say that the punishment of death should be uselessly and unjustly inflicted on individuals. When the noble Lord opposite proposed to the House in 1837 the abolition of the punishment of death in many cases, he took occasion to state the difficulties which stood in his way in his attempts to discover an adequate secondary punishment. The noble Lord observed, that it would be desirable to introduce some extension of the silent and solitary system of imprisonment, particularly if followed by transportation, and that such a system would be a better secondary punishment than any which the law would now permit. The noble Lord had, however, suffered nearly three years to elapse, and had never even attempted to introduce any system of secondary punishments. He could see no danger from the introduction of a good system of secondary punishments by which criminals would be placed under a course of correction before they were transported to foreign lands—a system by which the most hardened would be reformed, instead of being turned loose upon society again, to associate with their former companions, and to relapse into their old habits of vice and crime in this country, and should the House pass the present bill, he would be ready either to introduce one on secondary punishments, or support the Government in doing so, or assist any hon. Member who might bring forward such a measure. Having thus alluded to what he conceived to be a great defect in our laws, he would express a hope that the House would not suffer the absence of a good system of secondary punishments to be an excuse for the punishment of death, if they were satisfied that it was neither just nor reasonable, nor necessary, to go to that extremity. He would now proceed to state the offences to which he intended the bill to apply. They were fourteen in number; but they might be reduced to three or four different classes, or to five at the most. When he reminded the House that at no very distant period, a period within the recollection of many hon. Members, instead of fourteen there were nearly two hundred capital offences, and that owing to the more effective, but not to the more sincere, efforts of persons who had thought and felt as he did, those two hundred capital offences were now reduced to fourteen, or rather to sixteen, including the two to which his bill did not apply; and further, that there had been no increase in those 180 offences since the alteration of the law with respect to them, he thought these facts were sufficiently strong to induce the House to agree to extend the abolition of capital punishment to these remaining fourteen offences. It might, perhaps, excite some surprise amongst the non-professional Members of the House, when he stated, that although by the measures introduced by the noble Lord opposite, by his hon. Friend the Member for Wigan, and by some other hon. Members, it might be substantially said that all offences committed merely against the rights of property had ceased to be punishable by death, there yet remained four offences on the statute books which certainly, neither within his memory, nor perhaps within the memory of any hon. Gentleman now present, had ever been punished or prosecuted at all; he alluded to embezzlement by any of the servants of the Bank of England, or of those of the South Sea Company, being persons in their employ and having intrusted to them any description of Irish stock, and certain other stock specified in four different Acts of Parliament. He believed that the hon. Member for Dover and other hon. Gentlemen who were connected with the Bank of England, would concur with him in his wishes for the abolition of the punishment of death in these cases. At all events, he might venture to say, that should a case arise in the present day of a servant of the Bank of England committing an act of embezzlement and of being prosecuted capitally, it would be utterly impossible in the present state of the public mind and of public feeling on this subject to procure his conviction; and it would be necessary to prosecute such an offender under some other statute, so as to prevent the case being treated capitally. He took it for granted, then, that with regard to these four offences there would be no difficulty in his way. But there were some other offences requiring more particular attention. There were the two offences of riotously destroying buildings, and riotously and tumultuously destroying the Queen's ships; these were not offences directed against the safety of individuals, except in so far as the danger which might possibly arise out of the riots themselves. The other cases were rape, unnatural offences, and violating the persons of children under ten years of age. Then there was the offence of shooting at, wounding, or otherwise injuring with an intent to murder, or, in other words, attempted murder, accompanied with great violence. Upon this there was a great diversity of opinion. Three more offences might be classed together:—burglary, when attended with any violence and danger to life; highway robbery, attended with like violence; and piracy, when accompanied with attempts to murder or violence. The 14th and last offence to which his bill applied was arson. For all these offences he contended, that the punishment of death should be abolished. He did not think that he should deal fairly with the House, if he attempted to to repeat any of those general observations applying to the whole system of capital punishments, which had been so ably urged on former occasions when that subject was under consideration; and, therefore, he should content himself with a few incidental remarks. He would come to that offence concerning which he had heard the strongest objections from those with whom, both in and out of the House, he had privately communicated, and concerning which, with the exception of rape, a great difference of opinion prevailed— namely, an attempt to murder, attended with danger to life and great bodily injury. It had been put to him by those to whose intellect and perfect knowledge of the subject, and to whose great ability and experience, he paid the greatest deference, and for whom he entertained the highest respect. "Can there be any difference in the guilt of a man who shoots at another from behind a hedge and grievously wounds him, intending to murder him, and leaves him for dead, because he does not kill him, and because through the skill of the surgeon his victim is restored to life?" He would meet that question, fairly and openly, and if he failed to satisfy the House that upon principles which were recognised and admitted by all, there was no necessity for capital punishment in the case of an ineffectual and unsuccessful attempt to murder, then he would no longer hope for the sanction of the House to the bill he was about to introduce, at least, as far as this offence was concerned. If it were the only object of punishment, or if it formed any material part of punishment, to inflict vengeance upon the offender, according to the moral evil he had committed, he was willing to admit, that there was no manner of difference between the crime of a man who had attempted unsuccessfully, and him who attempted successfully to murder another. But surely the time was past when the degree of moral guilt was to form any consideration in the amount of punishment awarded by a human tribunal. The only object of the legal and judicial punishments of men was to deter the offender from a repetition of his crime, and others from following his evil example. There were many heinous offences which, by the law of England, were not punishable at all. The law did not profess to punish according to the amount of moral turpitude. The crimes of seduction and adultery, for instance, crimes which disgraced and tortured families, and produced incalculable misery to persons, and mischief to property, were wholly un-punishable by the criminal laws of this country. If he needed high authority for his views on this subject, he could appeal to that of the noble Lord opposite, who when he brought in his series of bills for criminal reform in 1837, thus addressed the House:— No one now doubts, that it is the object of criminal punishment not to satisfy the purposes of divine justice, nor to inflict human vengeance, but to deter from the commission of crime. That was the principle for which he contended, and in favour of that principle he had the noble Lord's admission; no, he would not say admission, for he did not regard the noble Lord as an opponent on this occasion; he had the noble Lord's high authority for this principle that the sole object of the law was not the punishment of the guilty, but to deter others from the commission of crime. That concession being made, he trusted that he should satisfy the House that the concession carried with it the necessity for the total abolition of capital punishment with respect to attempts to murder. It was unnecessary for him here to address himself to those who agreed with him that even for murder itself capital punishment should not be inflicted: but to those who conscientously believed that the punishment of death should be awarded to murder as a security against the repetition of the crime, and that the fear of death and of incurring capital punishment did deter men from committing murder, he would say, if that were the case—if the fear of capital punishment did deter persons from committing murder, so long as that punishment was retained in the criminal code, security was retained likewise against attempts to murder. Still all the security which the law could give against attempted murder would remain. The slightest consideration would make this manifest. The dread of the law was supposed to operate upon the man who attempted to commit murder ex vi termini, and who expected to succeed. Would it not have an equal, nay, a greater effect upon him who attempted to kill with less determination of purpose? As long as a man was punishable by death for murder, so long would there be security afforded by the law against attempted murders. And let it be remembered what the effect of the change in the law which he proposed would be upon men when under the excitement or temptation to commit murder. In looking at the history of crime, in nine cases out of ten attempts to commit murder were found to arise out of attempts to rob, or burglaries, or when persons were seized with a sudden passion, and gave blows, or fired shots, or stabbed others. Was the successful and unsuccessful attempt to murder to be punished alike? Would they take away all inducement from a man, who having struck the first blow, but not having despatched his victim, relented, and would not repeat the blow, but for the sake of preventing detection, and saving his own life? The effect of the present law was to make such a man complete the murder, because no difference was made between the successful and unsuccessful attempt at murder. Upon what principle of justice and humanity were both to be punished alike? Could such a practice promote the safety of the community? No; because it tended to make criminals more hardened and desperate, and complete offences which otherwise they would not. He remembered some cases which had come under his own observation. The following case was tried in the county of York, he believed:—A young man was attacked on the highway and robbed. The person by whom he was assailed was a much more powerful man than himself, but in the course of the struggle he struck him a severe blow which nearly fractured his skull. The robber turned upon him, and would have killed him, but on his knees he prayed him to spare his life. The robber did so, and at the trial the prosecutor implored the court to spare the life of the robber, but in vain. The man was not only convicted and sentenced, but executed. If the law established no distinction between those who showed mercy to their victims and those who practised towards them the extreme of cruelty, what motive to be merciful could be expected to arise in the breasts of men engaged in the perpetration of a crime? In support of the views which he entertained upon the punishment of death, he could quote the authority of the right hon. Member for Edinburgh, who in preparing a report upon the subject of the law in India, urged upon the Government in that country the very principle for which he had been contending—namely, that the punishment of death ought to be reserved for the crime of murder and the highest crime against the State. The right hon. Gentleman most justly said in the notes to that report:— But we are convinced that it ought to be very sparingly inflicted, and we propose to employ it only in cases where either murder or the highest offence against the State has been committed. We are not apprehensive that we shall be thought by many persons to have resorted too frequently to capital punishment; but we think it probable that many, even of those who condemn the English statute-book as sanguinary, may think that our code errs on the other side. They may be of opinion that gang robbery, the cruel mutilation of the person, and possibly rape, ought to be punished with death. These are, doubtless, offences which, if we looked only at their enormity, at the evil which they produce, at the terror which they spread through society, at the depravity which they indicate, we might be inclined to punish capitally. But, atrocious as they are, they cannot, as it appears to us, be placed in the same class with murder. To the great majority of mankind nothing is so dear as life. And we are of opinion that to put robbers, ravishers, and mutilators on the same footing with murderers is an arrangement which diminishes the security of life. There is in practice a close connexion between murder and most of those offences which come nearest to murder in enormity. Those offences are almost always committed under such circumstances that the offender has it in his power to add murder to his guilt.—They are often committed under such circumstances that the offender has a temptation to add murder to his guilt. The same opportunities, the same superiority of force, which enabled a man to rob, to mangle, or to ravish, will enable him to go further, and to despatch his victim. As he has almost always the power to murder, he will often have a strong motive to murder, inasmuch as by murder he may often hope to remove the only witness of the crime which he has already committed. If the punishment of the crime which he has already committed be exactly the same with the punishment for murder, he will have no restraining motive. A law which imprisons for rape and robbery, and hangs for murder, holds out to ravishers and robbers a strong inducement to spare the lives of those whom they have injured. A law which hangs for rape and robbery, and which only hangs for murder, holds out, indeed, if it be rigorously carried into effect, a strong motive to deter men from rape and robbery, but as soon as a man has ravished or robbed, it holds out to him a strong motive to follow up his crime with a murder. It was that state of the law here described which he called upon the House to alter; it was in cases such as those to which he had just referred that he called upon the House to spare human life. So far as the fear of punishment was concerned, he hoped he had satisfied the House that the extreme punishment would be not more effectual than the secondary in cases of attempted murder. The other offence upon which there was probably the most difference of opinion was that of rape. It was a subject which perhaps they had better reserve for the committee, if his proposed bill should arrive at that stage; but he might now be permitted to say a few words on the subject. If he were called upon to select from the whole catalogue of human crime one which above all others ought not to be subjected to the punishment of death, he should say it was the crime of rape; not so much on account of the nature of the offence as on account of the kind of evidence by which it was proved. Rape and a nameless offence were crimes which could only be proved by the testimony of an individual, and he thought that that circumstance alone warranted his saying that the irrevocable punishment of death ought not in such a case to be inflicted. "An irrevocable sentence should be pronounced only by an infallible judge." In his opinion, nothing but a stern, an overwhelming, an irresistible necessity should justify its infliction. The evidence of rape must always depend upon the testimony of a single witness, that witness might be mistaken, or she might commit perjury for the purpose of retrieving her own character, the temptation was strong, the chances of her being misled and deceived were great, and yet upon single and unsupported testimony, given under such circumstances, it was the practice of the law to inflict the punishment of death. The prosecutrix, thongh an honest, might be an erring witness, and yet, under the present system, the awful responsibility was incurred of inflicting the punishment of death. He would refer them to a case which occurred in a county not very distant from the metropolis. A young woman returning home was followed by a man whom she heard called by a particular name, to which he answered. By that man who so followed her, and who thus answered, her person had been violated. She took notice of the features of the man who had committed the offence. Soon afterwards she saw a person at a neighbouring village whom she instantly accused, and swore that he committed the crime, and his name proved to be the name that she had heard. Here was a strong case of circumstantial evidence, which carried conviction at once to the minds of all who heard it, and the prisoner was very properly committed for trial. His brother, on going home, heard of the occurrence, and declared that he was the guilty man. He presented himself to the young woman, who instantly exclaimed, "Oh God ! I have taken t false oath—that is the man." It was a strong case of circumstantial evidence, and it was clear that the innocent man might have been hanged. Did any one who without prejudice reflected upon the subject, suppose that the punishment of death could be necessary to the prevention of such a crime? An innocent man might be brought home from transportation, but could not be recovered from death. He had been able to find seventeen cases tried during the present century, in which the accused were convicted and received sentence of death, although their innocence had subsequently been established and rendered as manifest as that of any man now living. He had not been able to render this collection of seventeen as perfect as an official return. He had not much time to devote to the subject, and he could only enumerate the cases which he happened to find, but even such as they were they amounted to one in one hundred of the whole number executed within the period. Hence, then, it was clear, that a certain number of innocent men had been sacrificed. If there were any doubt as to the necessity for the punishment of death in these cases, the benefit of such doubt ought to be given in favour of human life. Some secondary punishment should be devised. He had just been reminded by a noble Lord near him, that he had not stated how many of the seventeen just mentioned had been executed. No fewer than eight of the number had suffered death, and one of them was within four hours of perishing on the scaffold when his pardon arrived. The result of his investigation and reflection on the subject led him to the conclusion, that the use of capital punishments, without absolute necessity, tended not only to the sacrifice of the innocent, but the escape of the guilty. He would produce an instance which came under his own knowledge. The case occurred in Buckingham, and it was that of a farmer who was robbed of about 70l., and savagely murdered by being shot through the skull. His own son, a lad of eighteen, was tried at Aylesbury, and, though there was the strongest circumstantial evidence against him, such as would have convicted any human being of any crime, yet, as there was just room to raise a doubt, the jury, to the astonishment of all, returned a verdict of not guilty. At the next assizes the son was indicted for the robbery, immediately found guilty, and transported to New South Wales. What did this show? Why, that in cases, where no possible sympathy could possibly exist, yet where a doubt can at all operate, the jury object to convict, and a criminal thus escapes. If the charge of robbery had not been made the son would have been set at large, perhaps to commit other murders. The event of the trial for robbery showed, that had the punishment being less than death, there would have been no doubt of the prisoner's conviction for the murder. From the disinclination of jurors, justice frequently was not allowed to have its way. He did not think he ought to trespass on the House further than to make a few observations on other crimes, such as burglary, robbery, and piracy. What he had said with respect to attempts to commit murder would apply to all other cases where violence was resorted to. The offender would be anxious to spare life if the punishment of death was confined to murder. There was one difficulty which he wished to overcome. It had been said, if death was abolished for arson, a man might set his dwelling-house on fire and burn a whole family. His answer was, that for burning houses or stacks, if the mischief was confined to property, the punishment of death would not be inflicted, but if the offender did sacrifice life, although he might not have contemplated anything of the sort when he set fire to the property, then the offence became murder, and the punishment for murder was inflicted. There was one topic which he would shortly advert to before he closed his observations, and it was the lamentable effect on public morals of public executions. If it were good to inflict the punishment of death on any ground, it was absurd to say, that one of those grounds was the good effect it produced on the bystanders. The only effect it could have was to degrade and to further corrupt the minds of the spectators Men of right-thinking minds, and virtuous habits, would experience no injury, but it was not on those classes that the spectacle was intended to operate. The effect was to be produced on the minds of the vicious, the uneducated, and all those most easily open to evil impressions. And if the House wanted to know what effect public executions had upon those classes, let them consult the public newspapers, and there they would find, that whether in town or country, the only consequence was to fill the public-houses, to promote debauchery, and to harden the depraved in their villanies. Those were the inevitable consequences of public executions, and it then became the House well to consider that important subject. Public executions, as could be proved, instead of producing benefit to the community generated nothing but mischief. Before he concluded, he begged to remind the House, that in respect to the multitude of offences for which the punishment of death had been abolished, there was not one in which it could be proved that the commission of crime had increased. This would be proved by a reference to any given number of years before and after the abolition of capital punishments. The noble Lord in his powerful speech, and by the papers he laid on the table, proved that the abolition of capital punishments had not increased but diminished crime, and that, in addition, the number of prosecutions had increased. The effect, therefore, of miti- gating punishment was to ensure prosecution, and to procure the punishment of offenders. So that not only had the number of prosecutions increased, but the number of convictions had very considerably increased. This evidenced the fact, that now the public were more inclined to prosecute, and juries to convict. From the noble Lord's statements in 1837, it appeared, that not only no increase of crime took place, but that an actual diminution of crime occurred, for while the number of cases appeared the same, yet, when the increased property and population were taken into consideration, the return really showed, that there had been an actual diminution of crime. So, from the period when Romilly first commenced his noble efforts to the time when the noble Lord brought in his series of bills for the mitigation of the criminal code, it was shown a substantial diminution of crime, or at least no increase, had been the result of the more merciful system of legislation. And if so, on what principle did they stop? Why did they not carry the principle further? The time which had elapsed had confirmed the soundness of the principles upon which the noble Lord had proceeded. With the opportunities of information which he (Mr. Kelly) had from the counsel for the protection of bankers and merchants from forgery, and from his learned Friends who practised at the Central Criminal Court, he found one general sentiment in favour of the further abolition of capital punishment—a conviction that the experiment, so far as it had gone, was successful, and a universal desire that he should prosecute a task which he should have wished to have seen undertaken by some one of greater ability, but which was sure to be successful and beneficial if it met the sanction of the House. He should not longer detain the House. For the reasons and principles which he had laid before the House, he would beseech them to take the subject into consideration, and more especially he would appeal to the noble Lord to lend his great and powerful aid to the completion of a work in which he had done much wisely and beneficially, and from the ultimate success of which he would derive more lasting and solid fame than he could ever obtain from the greatest political triumphs. The hon. Member moved for leave to bring in a bill to abolish capital punishment in the cases he had mentioned.

Mr. Ewart

, in seconding the motion, expressed his satisfaction that the principles in which it originated were diffusing themselves generally, and were not confined to any one particular party or section. He had the more pleasure in supporting the views of the hon. and learned mover, because three years ago he had brought under the notice of the House the same proposition. Three years ago the measure was all but carried in that House, being lost only by a majority of one. The numbers were seventy to seventy-one, and he was happy, although at that time the House did not legally establish the law, that capital punishment should be abolished in all cases except murder, yet that the principle had been acted upon; and since 1837 no capital punishment had taken place, except for murder or attempt at murder. It was not paying the noble Lord below him a compliment—it was merely doing justice, to say, that he had done more for the amendment of our system of prison discipline than any other Minister had done. He believed the noble Lord was more peculiarly fitted for that department of the duties of the office of Home Secretary than any who had preceded him. It was to him we owed in a great measure the separate system, which was destined to be the model of all schemes for criminal reformation in this country. He agreed with the hon. and learned Member that transportation, although it should be abolished as a punishment, ought to be retained as a supplement to punishment. Punishment might be inflicted by previous confinement, but there were certain cases in which it was desirable that the offender should have the opportunity of making a new life, and establishing a new character, and for that purpose of going to a new world, where, untainted by past recollections, he might establish a new and good reputation. It was the opinion of one of the greatest foreign jurists, as well as his, that this was the use, and the only use, which ought to be made of transportation. The hon. and learned Gentleman had referred to the anomaly in our law by which a man committing felony might, if death ensued, be executed, although the felony had not been committed in contemplation of death. This reminded him of another anomaly with respect to cases of common intent. In many instances a man might join with others in a common intent, and if the others went on to perpetrate an ulterior crime, which he had not contemplated, he was still liable to the extreme penalty. These were anomalies which ought to be taken into consideration, with a view to their removal as speedily as possible. The two crimes which the hon. and learned Gentleman excepted from the abrogation of the punishment of death were murder and high treason. He did not mean to raise any exception to this part of the proposition. He was willing to accept it as a compromise between the concession of the whole and the total denial of any part of that principle which every reformer ought to wish to see established. He thought, however, that, with respect to high treason, a distinction might properly be drawn between acts in which the death of the chief of the State was contemplated and those in which no such object was premeditated. There were circumstances, such as had recently occurred at Mon-mouth, which he thought might suggest such a distinction as this. He wished to call the attention of hon. and learned Gentlemen to a work published twenty years ago by the present ambassador from the king of the French, M. Guizot, in which, in commenting upon the punishment of death for political offences, the ingenious author remarked that in cases of popular commotions the ostensible leader was not a person acting from his own impulses, but was generally compelled by others. He thought if the hon. and learned Gentleman attended to this he might make a distinction, and, while he exempted treason from the abrogation of the punishment of death, might see that there were circumstances which might call, in a peculiar manner, for exemption from the extreme penalty. The abolition of capital punishment had made less progress in this country than in others; but now that we had begun, though late, to act, he hoped we should not show the less zeal or earnestness in the cause of reform; and he had the greatest confidence in the success of the cause since it was advocated by both sides of the House, and was supported by the talents of the hon. and learned Gentleman who had so ably advocated it this evening. In this, as in any other legal reform which he (Mr. Ewart) had ventured to urge, he was guided by the direction of the popular feeling—the inclinatio temporum, which had been so often referred to from the time of the great philosopher who first used the term. He was sure that the time would ultimately, if not very speedily, arrive, when not only that House, but the people of the country, would cordially entertain and happily accomplish the principle which was involved in all these amendments— the total abolition of the punishment of death.

Lord J. Russell

was sure the House had no cause to regret that the hon. Gentleman who had made this motion had undertaken the subject, because the strict investigation, the talent, and the enlightened principle which he had brought to the task, could not but be useful to the House and the public in the further investigation of the matter. Neither did he (Lord J. Russell) wish to oppose the motion for leave to bring in the bill, but it would not be fair to the House if he did not state that he could not consent to the final enactment of the bill without further investigation, without several alterations, and, as he thought, without a further delay to a future session of Parliament. Great changes had recently been made in the criminal law of the country. Without entering minutely into the history of those changes, it would be sufficient to mention that, thirty years ago, two hundred offences were liable to capital punishment, and the opinion of the Parliament was then opposed to any considerable alteration of the system. It was impossible to read the memoirs which had been recently published of Sir Samuel Romilly without observing what great difficulties that excellent, learned, and upright man had to contend with in opposing a system which we now all condemned as sanguinary, cruel, and inefficient. It was considered at that time that stealing, to even a small amount, if not visited with capital punishment, would make all property in the country unsafe, and other offences lighter still were liable to capital punishment. When the right hon. Gentleman, who was not now present, introduced his bills for the amendment of the criminal law in 1827, one in ten of all the convictions were capital. About the year 1835, when he (Lord J. Russell) was charged with the business of the Home Department, about one conviction in thirty-two was for a capital offence. In consequence of the various bills brought in, many of them by the hon. Member for Wigan, and some of them by himself, in the year 1837, the capital convictions were reduced to one in 317. Not merely had a change taken place in the letter of the law, and in the formal number of convictions, but the number of executions had been reduced in a great degree, for in 1838 the number of executions was only six, and in 1839, eleven. This showed that the punishment of death had not been so frequently inflicted as to make it necessary for the House to interpose without due consideration. He admitted, indeed, that if weekly and daily instances of the infliction of capital punishment had occurred, because we were in doubt what would be the best system of secondary punishment, it would bean unjust and revolting argument that human life should be taken away on such grounds; and we ought immediately to consider, without loss of time, what secondary punishments would be best to be adopted. But he did not believe such to be the case. What had been our experience since the act of 1837? During the year 1838 many of those who were capitally convicted were tried under the former state of the law, under which many additional crimes were capitally punishable. That, therefore, could not be taken as a fair criterion of the operation of the new law; and the year 1839 was the only year which furnished practical experience of the operation of the new law. He did not think the hon. Gentleman could justly charge him with delay, or neglect of the subject, if with but one year's experience, he said that he did not feel himself bound to proceed to legislation within the present year. If capital punishments had been unnecessarily inflicted he should admit the obligation; but neither in the number of the inflictions, nor the nature of the crimes had that been the case, and, therefore, he thought it would be wise to consider further before capital punishment was done away with to any greater extent. In the mean time, that interval would not have been lost, for communications had taken place between the judges and the Secretary of State—not upon the general state of the law upon which the judges were not in the practice of giving an opinion, but upon particular cases, from which with further experience, sufficient grounds might be made out for further amendment of the law. He might refer to one instance—that of rape. When he brought in his bills in 1837, considerable discussion took place between the criminal law commissioners and himself; but he believed the prevailing opinion to have been, that if the crime was committed in combination, and was the result of combined force, the punishment ought to be capital, but in other cases not. Since that time, however, there had been no execution for rape, although there certainly had been cases in which he should have thought, if this principle was to be adhered to, the capital punishment ought to have been inflicted. In such cases, however, some of the judges who had paid most attention to the crime and to the state of the law had recommended the parties to the mercy of the Crown. That was a point which was raised for their consideration. If, as he believed, the judges had recommended that in such cases—and some of them aggravated ones—mercy should be extended, it might be a ground for calling upon the House to take away the punishment in such cases. He rather wished to avoid for the present following the hon. and learned Member in his argument as to certain crimes, with regard to which the hon. and learned Gentleman proposed to remit the capital penalty, but for which he (Lord J. Russell) thought it ought to be retained: but with regard to another subject — imprisonment as a secondary punishment—he thought we had now arrived at a stage—having improved the system of capital punishment, and with the evidence which was before the House with respect to transportation and imprisonment—at which we might consider that we were approaching the time when the whole subject might be placed before the Legislature, for the purpose of the adoption of some consistent system—because, if on the one hand, no wanton expenditure of human life had taken place, he contended that on the other hand we were bound, for the safety and happiness of society, to take care that an effective system of secondary punishments should be adopted. The hon. and learned Gentleman, and the hon. Gentleman who had spoken last, said that transportation ought to be retained as a supplementary punishment. That opinion had been held many years ago, and had been acted upon in many instances. When the punishment of death for forgery was first taken away, it was no uncommon thing for the judges to order one, two, or three years' imprisonment, with a view to subsequent transportation; but he doubted the wisdom of that system, for such was the stimulus which it offered for applications for mitigations of the sentence, that what with applications to the judge grounded on evidence which could have been given by parties not examined—applications to the Secretary of State, founded on the respectability of the connections and previous conduct of the individuals, and recommendations by persons upon the jury or otherwise, it came to be considered that the fixed imprisonment was intended as the punishment, and the transportation was looked upon as an unexpected punishment. He could not tell the reason of this notion, but such was the practical effect. He, therefore, thought that transportation, instead of being a contingent infliction, should be the commencement of a real and effective punishment, and not a lottery, by which a man might be sent to the borders, and condemned to the most servile tasks, or find himself employed as a cook or butler or the confidential clerk of a merchant in a town, and enjoying greater luxuries than he had ever known before. He thought when capital punishment was abolished, transportation should be looked upon as a substantial punishment, and that few persons should be sent to the Australian colonies for a few years, which had the effect of taking away from the terror that ought to attend that punishment. Transportation ought not to be confounded with minor punishments. He had gone further than the motion of the hon. and learned Gentleman gave occasion for, but he wished to state his views on the whole subject of the alteration of the criminal law. The hon. and learned Gentleman admitted himself to be an advocate for the total abolition of the punishment of death; he thought that for certain offences it ought to be retained. He thought that the system of prison discipline, and of transportation, ought to be improved as far as was possibly compatible with the welfare of the prisoner. In bringing forward the subject now, after the various bills which had been introduced, and the inquiries which had been instituted, there ought to be a consistent system submitted to the attentive consideration of both Houses of the Legislature. He did not think that at the present period of the Session there was sufficient time, nor in some particulars sufficient experience to enable the House to decide on any such system, and, therefore, he told the hon. and learned Gentleman fairly, that, thanking him for the light which he had thrown upon the subject, and for the attention which he had paid to it, for which the House and the country were much indebted to him, he was not disposed to support the further stages of the bill.

Mr. Hume

, after an acknowledgement of the attention and research which the hon. and learned Member for Ipswich had so usefully bestowed upon this subject, said that the more we ameliorated the law under which exhibitions so disgusting, so disgraceful, and so injurious to the morals of the people, and so contrary to the objects which the Legislature had in view in the infliction of punishment, the more would the character of the people be improved. In no instances had offences increased in consequence of the punishment having been mitigated. On the contrary, in every instance they had decreased; and it rested, therefore, with the noble Lord to prove, that in the punishments which had heretofore taken place, there had not been an unnecessary sacrifice of human life. He was one of those who always thought that the utmost severity of punishment could never operate so as to prevent the murders resulting from passion; and he also thought that executions, and the conduct of spectators at them, tended to demoralize, rather than improve the public mind.

The Attorney General

said, he was by no means opposed to the bringing in of this bill, for he had on former occasions 'lent his assistance to the Secretary of State in seeking to abridge the number of offences to which capital punishment applied. This was to him a most grateful task; but though he thought they had not yet arrived at the point to which they might safely advance in abolishing capital punishments, yet he must say there had been no supineness in the progress which had been made. He was of opinion that there were yet some offences liable to capital punishment which might cease to be so, though he could not go the length of his learned Friend. He hoped, however, as his learned Friend had now obtained leave to bring in the bill, he would be content to do so, and allow it to stand over until next Session of Parliament, inasmuch as they were not at present prepared to enter upon its consideration. He thought it was monstrous that this bill should be limited to England. He did not see why it should not be extended to Ireland and Scotland. He thought there could be no difficulty in including all three countries in one measure, or if there was a difficulty, they might have three bills brought in and pass them pari passu, so that they might all receive the royal assent on the same night. Under these circumstances, he hoped his hon. Friend would not press his bill farther this Session.

Mr. Kelly

said, that after the appeal which had been made to him by his hon. Friend, he must say, in reply, that he was impelled by a sense of public duty firmly, decisively, and openly to declare that he would not consent to delay the further progress of the bill for a single day. If there was any thing less at stake than human life, no one would be more ready than himself to agree to the suggestion of his hon. Friend; but considering the nature and objects of the bill, and the mischiefs which resulted from having our practice different to our law, he felt bound to say that at every stage of the bill he would take the sense of the House as to whether it should pass or not. He would therefore put down the second reading for the very earliest day, and he only regretted that after repeatedly putting off the bill to suit the convenience of the noble Lord who wished to take the sense of the House on the first reading, he should now put it off to the second reading. He had, however, the most sanguine hopes, from the state of public opinion both out and in the House, that the bill would be successfully carried into law in the present Session. With respect to what had fallen from his hon. and learned Friend, as to extending the bill to Ireland and Scotland, he should be glad to do so, and saw no difficulty in doing so in the present Session, and he hoped he should have his hon. Friend's assistance in accomplishing that object, in which case he would forthwith bring in bills for both countries, and it would be then for the House to say whether it would trifle with human life, and with public opinion, by unnecessary delay.

Leave given to bring in the bill.