PUNISHMENT OF DEATH.

HC Deb 03 May 1841 vol 57 cc1408-31

House in Committee on the Punishment of Death Bill.

On the second clause being read, Wilfully and maliciously setting fire to any of her Majesty's ships, arsenals, dock-yards, &c. &c):—If any person shall be convicted of any of the said offences, such person shall not be subject to any sentence, judgment, or punishment of death, but shall, instead thereof, be liable, at the discretion of the court, to be transported beyond the seas for the term of the natural life of such person, or for any term not less than seven years, or to be imprisoned for any time not exceeding three years,

Lord J. Russell

said, he could not consent to the clause as amended. He thought it would be a most dangerous act to abolish the punishment of death in cases where persons were convicted of setting fire to her Majesty's dockyard in time of war.

Sir R. H. Inglis

entirely concurred with the noble Lord's objection. When a similar proposition was made to the House, he (Sir R. H. Inglis) opposed it on the same ground, and the justice of his view with regard to the paramount necessity of protecting the property of the Crown was, he thought, confirmed by the attempt which was made, two months afterwards, to set fire to one of her Majesty's dockyards.

Viscount Dungannon

also took the same view. He approved of the mitigation of crimes to which capital punishments had been hitherto applied, but he thought if the Legislature, from motives of mistaken clemency, were to proceed much farther, they would make a most fatal inroad on the security of life and property in this country.

Mr. Hume

thought the noble Lord was bound to show that a further diminution of the application of capital punishments would have the effect he apprehended before the committee could be expected to share in those apprehensions. Did the hon. Gentleman who opposed the clause mean to say that protection to life and property had been in a degree taken away by the humane enactments that had already passed, abolishing nine-tenths of our capital punishments? He, on the contrary, thought that taking away the life of a fellow-creature did not tend to the prevention of crime;—this was his conviction, founded on long and close observation. He admitted it was essential to the public safety that the property of the Crown should be effectually protected, but life should not be sacrificed as a punishment for its destruction, any more than for the destruction of private property; or, if any difference should be made, it ought to be for a severer punishment for those who destroyed the property of poor and helpless individuals. As to the moral effects of an execution in public, a shocking spectacle that took place since they last met must have proved that the approach of the punishment of death would have no terrors for a desperate individual, and that the ignominious ceremonies of the gallows were merely treated by the mob as exhibitions to be laughed at. These brutalising scenes had no certain effect but to harden the hearts of criminals and spectators, and knowing this to be the fact, he thought it high time that they should now be altogether done away with, and, therefore, he gave his most hearty concurrence to the clause, and he thought that the noble Lord was bound either to join them in agreeing to the clause, or to prove that the punishment of death was a protection to life and property.

Mr. O'Connell

said, the noble Lord, the Secretary for the Colonies, had made a mistake in calling capital punishment the strongest arm of the Jaw for the prevention of crime. The question was, was it the strongest arm of the law? In his opinion that arm of the law was in reality the stronger which acted with a more speedy and certain result, and undoubtedly secondary punishments being inflicted with certainty when capital ones might be evaded, the former were more likely to terrify offenders, and to prevent the commission of crime. The noble Lord and the right hon. Gentleman talked of the necessity of the present statute to prevent persons from setting fire to dockyards, but the recent attempt proved that the present law did not prevent that crime. Why was it that capital punishments did not check crime? Because they were generally regarded as too severe, according to the calculations of men of human- ity, and this feeling was now becoming universal with the public. If, then, the legislature continued to brutalise society by accustoming it to ignominious capital punishment, a hardened class of men would still be created, who seeing human life destroyed by the law, would also disregard the destruction of human life themselves. In fact the spectacles of capital punishment would make criminals value their own lives less, and would in some degree familiarise them with the commission of murder. The right hon. Baronet said, if this clause were adopted, what punishment would remain for persons convicted of setting fire to ships in the face of an enemy? Why this would be high treason, and the crime would come under the statute providing for that offence. His opinion was, that the punishment of death ought to be altogether abolished, but in the case supposed by the right hon. Baronet, it would be still punishable by capital punishment under the present bill. He trusted the House would continue to legislate in that spirit of humanity that distinguished the present day. Thus the efficacy of the secondary punishment being certain, would be increased. And the nature of the highest degree of secondary punishment was by no means light. They had heard in the evidence of medical witnesses that prolonged periods of imprisonment tended to the death of the criminal, for they were in effect sentences of death, though the period of their execution was spread over a long period of time. The abolition of the present capital code would prevent the horrible possibility of the execution of innocent men. They had heard of the recent case of a wretched man, who died with every appearance of contrition, but at the last solemn moment solemnly calling upon the God who was about to judge him that he was innocent of the crime for which he was just going to be executed. He would not dwell upon the circumstance, that the judge before whom that man was tried procured more convictions than other judges; but when the fact of this probability got abroad that a man was more likely to be hanged if he were tried before one judge, and would have a better chance of escape if he were tried before another, it must induce criminal men to venture on a sort of game of hazard, calculating the chance of escape on the possibility of being tried before one judge rather than another, and so attack- ing or sparing life according to the impression made upon them. One great reason, then, for abolishing the punishment of death should arise from the defectiveness of tribunals, through the fallibility natural to man. Let the House lessen the danger attending this fallibility, and judges would at least escape the responsibility of sentencing, by mistake, innocent men to death. And as, upon the showing of other hon. Gentlemen, the effect of the mitigation already enacted had not been to augment but to diminish crimes, he thought that justice as well as humanity encouraged them to proceed in the work of bloodless legislation. The Acts of Parliament awarding capital punishment must be mitigated—indeed they had been already greatly modified by the humanity of judges and juries.

Mr. Sergeant Talfourd

hoped the clause would pass into a law. He entirely concurred with his hon. Friend, the Member for Kilkenny, and differed from the hon. Gentleman, the Member for the University of Oxford. However he did not concur in the apprehension of the hon. and learned Member for Dublin, with respect to some recent cases, especially that of Misters. He (Mr. Sergeant Talfourd) was convinced that that criminal, though persisting in declaring his innocence to the last, was guilty of the crime for which he had been indicted. He was at Shrewsbury at the time of the trial, though not professionally, and there was no doubt on his mind that Misters was properly convicted, if not properly executed. There could be no doubt of the justice of the verdict; but in cases of that kind the sympathy of the public went with the sufferer, and not with the law; for if Misters had been sentenced to transportation for life, instead of to hanging, no one would have protested against the severity of his doom. The fact was, the punishment of death threw a sort of sanclity around the memory of the sufferer who was suddenly sent into eternity, and in the contemplations associated with the awful transit from this life into the other an interest was naturally created in behalf of the criminal. But such feelings would end with the capital punishment, and in most cases the operation of the law would be supported by the concurrence of the public.

Mr. Ewart

said, if the legislature con- tinued capital punishments, it would also continue that uncertainty which now gave a hope of impunity or acquittal to a criminal; whereas secondary punishments contributed to deter of. fenders by their certainty. From these feelings of humanity, and other causes which had been just alluded to, it appeared that executions, on the contrary, tended to a greater number of acquittals in subsequent cases. He begged leave to read to the House an interesting document drawn up by Mr. Wrightson, which would explain the relative effects of capital and secondary punishments. The hon. Gentleman read the following document:— PROOFS OF THE TENDENCY OF CAPITAL PUNISHMENT TO PRODUCE IMPUNITY. If the convictions for the following crimes, from the year 1810 down to the end of the year in which the law was mitigated in each case, had been in the same proportion to the commitments that they have been since, they would have exceeded the actual number convicted by 215 for Forgery. —103—Horse-stealing. —237—Sheep-stealing. —363—Stealing in dwelling-house. —29—Coining. —423—Housebreaking. —1,101—Robbery. —1,064—Burglary. —393—Attempts to murder, &c. —168—Arson and other wilful burning. 4,096 Total. The total number executed for the above crimes from the year 1810 down to the mitigation of the law was 1,242, so that every execution appears to have produced rather more than three acquittals. The executions for each crime separately were as follows:

Forgery	221
Horse-stealing	68
Sheep-stealing	74
Stealing in a dwelling-house	52
Coining	13
Burglary	308
Robbery	268
Attempts to murder, &c.	101
Arson and other wilful burning	104
Housebreaking	55
Total	1,264

If we compare the number executed for each crime with the additional number who would have been convicted if the juries had convicted in the same proportion 'before' as they have done 'since' the mitigation of the law, we shall arrive at the impunity produced by capital punishment in each particular case as follows: Forgery.—The executions were 221, and the impunity produced 215; so that every execution led to nearly one acquittal. Horse-stealing.—Executions 68, impunity produced 103; so that every execution led to more than one acquittal. Sheep-stealing.—Executions 74, impunity produced 237; so that each execution led to three acquittals. Stealing in a dwelling-house.—Executions 52, impunity produced 363 so that each execution led to seven acquittals. Coining.—Executions 13, impunity produced 29; so that each execution led to two acquittals. Burglary.—Executions 308, impunity produced, 1,064; so that each execution led to three acquittals. Robbery.—Executions 268, impunity produced 1,101; so that each execution led to four acquittals. Attempts to murder, &c.—Executions 101, impunity produced 393: so that each execution led to nearly four acquittals. Arson, &c.—Executions 104, impunity produced 168; so that each execution led to more than one acquittal. Housebreaking.-—Executions 55, impunity produced 423; so that each execution led to seven acquittals. Thus it appeared, said the hem. Member, that facts and figures, as well as humanity, were against the noble Lord and the right hon. Gentleman, and he hoped, therefore, they might be induced to reconsider the conclusions they had come to.

Viscount Dungannon

explained, and repented his opinion that a farther mitigation of the capital code would be dangerous to the safety of life and property. As for the case of Misters, his noble Friend near him had been on the grand jury which found the bill against the prisoner, and it was quite impossible to come to any other decision, so strong was the evidence they had received. Great modifications had already been made in the punishment of forgery, stealing from dwelling-houses, sheep-stealing, horse-stealing. He rejoiced at the mitigation; but if this were extended to the malefactor who set a house on fire, or committed murder, or wounded with intent to kill, a most dangerous encouragement would be held out by the House of Commons to the desperate characters who infested the country.

Mr. W. Roche

supported the clause, contending that the uncertainty of capital punishments encouraged desperate characters.

The Committee divided on the question that the clause as amended stand part of the bill.—Ayes 110; Noes 122: Majority 12.

List of the AYES.
Aglionby, H. A.	Lennox, Lord A.
Alford, Viscount	Lister, E. C.
Alston, R.	Litton, E.
Archbold, R.	Lushington, C.
Bainbridge, E. T.	Lushinglon, rt. hn. S.
Baines, E.	Marsland, H.
Barron, H. W.	Milnes, R. M.
Barry, G. S.	Morris, D.
Beamish, F. B.	Muntz, G. F.
Bethell, R.	Murray, A.
Blackburne, I.	Muskett, G. A.
Blake, M. J.	Nagle, Sir R.
Bodkin, J. J.	O'Brien, W. S.
Bridgeman, H.	O'Connell, D.
Briscoe, J. I.	O'Connell, J.
Broadley, H.	O'Connell, M.
Brotherton, J.	Paget, Colonel
Bruges, W. H. L.	Pattison, J.
Buller, E.	Pease, J.
Buller, Sir J. Y.	Pechell, Captain
Castlereagh, Viscount	Plumptre, J. P.
Cayley, E. S.	Power, J.
Chichester, Sir B.	Protheroe, E.
Currie, R.	Rice, E. R.
Dennistoun, J.	Roche, E. B.
D'Eyncourt, rt. hn. C. T.	Roche, W.
	Round, J.
Divett, E.	Salwey, Colonel
Douglas, Sir C. E.	Scholefield, J.
Duncombe, T.	Smith, B.
Duncombe, hon. A.	Smythe, hon. G.
Dundas, C. W. D.	Stanley, hon. W. O.
Ellice, E.	Stansfteld, W. R. C.
Fielden, J.	Strickland, Sir G.
Fenton, J.	Style, Sir C.
Ferguson, Colonel	Talbot, J. H.
Fitzroy, Lord C.	Talfourd, Mr. Serg.
Fitzroy, hon. H.	Tancred, H. W.
Fleetwood, Sir P. H.	Thornely, T.
Fort, J.	Turner, E.
Godson, R.	Villiers, hon. C. P.
Greig, D.	Waddington, H. S.
Hall, Sir B.	Wakley, T.
Hawes, B.	Wall, C. B.
Hill, Lord A. M. C.	Wallace, R.
Hinde, J. H.	Warburton, H.
Hindley, C.	Ward, H. G.
Hobhouse, T. B.	White, A.
Hodgson, R.	Wilbraham, G.
Hoskins, K.	Williams, W.
Hughes, W. B.	Winnington, Sir T. E.
Hume, J.	Winnington, H. J.
Hutt, W.	Wood, B.
Hutton, R.	Yates, J. A.
Jones, J.	TELLERS.
Langdale, hon. C.	Kelly, F.
Leader, J. T.	Ewarl, W.

List of the NOES.
Acheson, Viscount	Bagge, W.
A'Court, Captain	Bagot, hon. W.
Adam, Admiral	Baring, rt. hon. F. T.
Attwood, M.	Baring, H. B.

Barrington, Viscount	Lygon, hon. General
Bell, M.	Mackenzie, W. F.
Bewes, T.	Mahon, Viscount
Blake, W. J.	Marsland, T.
Botfield, B.	Martin, J.
Bowes, J.	Morgan, C. M. R.
Brabazon, Lord	Morgan, O.
Brodie, W. B.	Noel, hon. C. G.
Bruce, Lord E.	Norreys, Lord
Buck, L. W.	O'Ferrall, R. M.
Buller, C.	Pakington, J. S.
Burrell, Sir C.	Palmer, G.
Busfield, W.	Parker, J.
Byng, G.	Parker, R. T.
Byng, rt. hon. G. S.	Peel, rt. hn. Sir R.
Calcraft, J. H.	Pigot, rt. hon. D.
Campbell, Sir J.	Pinney, W.
Clay, W.	Polhill, F.
Clive, E. B.	Rawdon, Col. J. D.
Clive, hon. R. H.	Reid, Sir J. R.
Collier, J.	Richards, R.
Conolly, E.	Rickford, W.
Dalmeny, Lord	Rose, rt. hon. Sir G.
Darby, G.	Round, C. G.
Darlington, Earl of	Rushbrooke, Colonel
Dunbar, G.	Russell, Lord J.
Eliot, Lord	Rutherfurd, rt. hn. A.
Estcourt, T.	Sheil, right hon. R. L.
Evans, W.	Sibthorp, Colonel
Fellowes, E.	Slaney, R. A.
Ferguson, Sir R. A.	Smith, J. A.
Fremantle, Sir T.	Somerset, Lord G.
Gillon, W. D.	Somerville, Sir W. M.
Gladstone, W. E.	Sotheron, T. E.
Goulburn, rt. hon. H.	Stanley, hon. E. J.
Graham, rt. hn. Sir J.	Stanley, E.
Grey, rt. hon Sir G.	Stanley, Lord
Grimsditch, T.	Steuart, R.
Grosvenor, Lord R.	Stuart, W. V.
Guest, Sir J.	Stock, Mr. Serg.
Hamilton, Lord C.	Strutt, E.
Harcourt, G. G.	Surrey, Earl of
Hawkes, T.	Teignmouth, Lord
Hawkins, J. H.	Townley, R. G.
Herbert, hon. S.	Trotter, J.
Heron, Sir R.	Tufnell, H.
Hodgson, F.	Vere, Sir C. B.
Horsman, E.	Vivian, rt. hn. Sir R. H.
Houldsworth, T.	Walter, J.
Howard, hon. C. W. G.	Wemyss, Captain
Howick, Viscount	White, L.
Hurt, F.	White, S.
Ingestre, Viscount	Wilbraham, hon. B.
Irving, J.	Wood, C.
Kemble, H.	Worsley, Lord
Law, hon. C. E.	TELLERS.
Liddell, hon. H. T.	Dungannon, Viscount
Lowther, hon. Col.	Inglis, Sir R. H.

Clause rejected.

Clause 3 agreed to.

Clause 4, (Unnatural crimes, rape, &c. Any person convicted of any of the said offences not to be subject to the punishment of death, but to be transported beyond the seas for the term of the natural life of such person;—

Question being put,

Sir C. Douglas

proposed the following addition: That in cases of rape, and of unlawfully and carnally knowing and abusing any girl under the age of 10 years, whenever either of the said offences shall be committed by any two or more persons, and such person or persons shall be convicted of either of the said offences, such person or persons so convicted shall be subject to the sentence of death, and shall suffer death, as in and by the said statute of the 9th year of the reign of his late Majesty George 4th is provided.

The Attorney-General

said, that that was a clause of great importance and very difficult to deal with. The offence of rape was the most atrocious crime in some cases, while in other cases, although the offence might be in a legal sense committed, no one would think of inflicting the capital punishment. He had devoted a great deal of his attention to the question to see if he could define a particular species of this offence, for which it would be right for the safeguard op society still to retain the capital punishment; but he had altogether failed in the attempt, and had come, therefore, to the conclusion, that it would be better to take away the punishment of death in all cases. He did not think the amendment now proposed would be of any avail; for it would still leave the offence undefined. Suppose a common prostitute violated without her consent by three or four men that would be rape in construction of the law; but no judge would leave that man, if convicted, for execution. He thought, therefore, that if they changed the law at all, they should abolish the punishment altogether.

Sir R. Inglis

thought, that hon. Gentlemen should consider this question very seriously before they came to the conclusion which the hon. and learned Gentleman recommended by his example. What punishment would they think the ruffian deserved who should ill-use one of their daughters, or any one dear to them. The hon. and learned Member for Dublin had said, that long imprisonment was lingering death, and much more cruel in its effect than hanging? Would it not be more humane, then, to punish with speedy death than to protract the suffering of a culprit? He thought it would be better to let the law remain as it was; but if the House would not go to that extent with him, let them at least concur in the amendment of the hon. Member for Warwick.

Viscount Dungannon

could not consent to the remission of the punishment of death in such cases. He would rather have it left to the discretion of the judges as to whether or not there were any circumstances calling for any deviation from the ordinary course.

Mr. O'Connell

deprecated the system of leaving too much discretion, in case of life or death, in the hands of the judges. Such a system was apt to produce an impression on the mind of the public that a prisoner was left for execution, not because he was guilty, but because such or such a judge had tried him. He could not agree to the doctrine that in legislating for this offence they should proceed on those vindictive feelings which might naturally be supposed to actuate the relatives of the injured female. Prevention, not vengeance, should be the primary object of the House; and the best method of preventing the offence, and of saving the feelings of relatives, was to make conviction and punishment more certain. The committee would recollect the case of the gipsies, who, about four years since, were convicted of robbery, accompanied with great personal violence, near Monmouth, and sentenced to transportation. Their innocence was afterwards clearly proved, the real criminals being detected, and they were brought back at the expense of Government. If the conviction of these gipsies had taken place a few years further back, they would have been executed, and what, then, would have been the feelings of the jury, the judge, and all parties whose duty obliged them to take part in the proceedings? Though lengthened imprisonment was calculated to produce death, it had this advantage, that it left time for full inquiry and examination.

The Earl of Darlington

thought the case under discussion was one of those which with the greatest propriety might be left to the discretion of the judge. He defended the character of the excellent and upright judge, who had been attacked that night by the hon. and learned Member for Dublin. In the case alluded to by the hon. and learned Member, he was one of the grand jury, and he believed no one could have been present at the trial without agreeing that a clearer case was never made out.

Mr. Hobhouse

observed, that there was one point of view in which the question had not been looked at. In cases of robbery and violence, rendering the offending party liable to death, there was often an inducement to commit murder us a mode of getting rid of the chief, or perhaps the only, evidence. To do away with the punishment of death, therefore, would be to remove one very frequent cause of murder being committed.

Mr. Godson

cited some cases to show the unwillingness of juries to convict persons indicted for commiting one offence in company; and also a case in which two men, after having been tried for a rape and acquitted, were tried for murder; and the prejudice which the former charge excited against them procured their conviction, and they were executed; but circumstances afterwards transpired which showed that they were innocent of the murder. He was one of the counsel in the case, and he had no doubt of their innocence. He should support the clause as it stood.

Lord John Russell

said, if the House looked to the moral enormity of the offences proposed to be exempted from the clause, there could be no doubt that the more atrocious cases of the kind were as deserving of death as any crime; but if they looked at the great object of prevention, he was convinced that the commission of the offence would not be so effectually prevented by the present state of the law. The noble Lord, in allusion to one of the cases mentioned by Mr. Godson, said, that in one, where the crime had been perpetrated by three men, the judge had suggested that the Crown should interfere. In subsequent instances of the kind other judges had pursued the same course. This being the state of the case, and being likely to continue, he must express his opinion that merely retaining the punishment of death on the statute book, when that punishment was not likely to be inflicted, could not tend to prevent the offence, though it might operate to prevent conviction. He should vote against the amendment.

Sir Robert Peel

If the House was of opinion that the punishment of death in ordinary cases of rape should be done away with, inconvenience might arise from making any particular and specific exceptions. As to the distinction that had been drawn with respect to the possibility of reparation in one case, and of the impossibility of such reparation in the other, he did not attach much weight to that argument. He could not agree with his hon. Friend the Member for the University of Oxford, that they should reflect what their own feelings would be if any member of their families were suffering a grievous injury of the kind alluded to, or that they should bring their own indignation into play upon their legislation. The main consideration was what course should be taken which, upon the whole, was most calculated to prevent offences. If the House concurred in doing away with the capital punishment, he did not think they ought to enter into the specific circumstances, as to the perpetration of the offence by one individual or by many, for he considered that steps of prevention, not the moral enormity of the offence, should form the principal element of their legislation. He was not, however, satisfied of the policy of remitting the capital punishment in cases of rape. He could conceive cases where the offence was committed by members of the higher classes of society, for the gratification of the most brutal passions, where, if the punishment was remitted, public indignation might be so great that the House would find it expedient to retrace its course. Their object should be to carry public opinion along with them. He approved of the plan of gradually abolishing severe punishments. He would retain capital punishments for murder, for attempt to murder, and for rape, an offence which he considered involved not only the highest criminality but the greatest personal in. jury that could be sustained by that class of society the most likely to suffer, because they were the weakest, and who were therefore the more entitled to protection. The general argument against capital punishments was, that their effect was lessened by awarding them too indiscriminately. He thought that might be the case with respect to cases not marked by deep moral guilt. He did not think that the crime of rape was of frequent commission in this country, or that the expectation of acquittal by juries under the present law had been very frequently fulfilled. He admitted it to be a question of great difficulty, but, looking at the great criminality of the offence, and the irreparable injury inflicted on the victim, he was not prepared to remit capital punishment.

Mr. C. Buller

said, there were no capital convictions which so little satisfied the public mind as those for rape, or in which doubts were so frequently expressed of the guilt of a prisoner after his execution. It was a great hardship to throw upon a judge the responsibility of the discretion which was at present given him. The Legislature should take that responsibility on themselves.

Captain Polhill

was altogether opposed to the clause. He advised his hon. Friend to withdraw his amendment, and the question could be taken on the clause itself.

Sir C. Douglas

consented. Amendment withdrawn.

The Committee divided on the question that the clause, as amended stand part of the bill:—Ayes 123; Noes 61—Majority 62.

List of the AYES.
Adam, Admiral	Hayter, W. G.
Aglionby, H. A.	Hill, Lord A. M. G.
Ainsworth, P,	Hindley, C.
Alston, R.	Hobhouse, T. B.
Archbold, R.	Hodgson, R.
Armstrong, A.	Hope, H. T.
Bainbridge, E. T.	Horsman, E.
Baines, E.	Hoskins, K.
Barrington, Viscount	Hughes, W. B.
Beamish, F. B.	Hume, J.
Bewes, T.	Hutt, W.
Bodkin, J. J.	Hutton, R.
Bowes, J.	Ingham, R.
Bridgeman, H	Jervis, S.
Briscoe, J. I.	Jones, J.
Brodie, W. B.	Kemble, H.
Brotherton, J.	Leader, J. T.
Buller, C.	Lennox, Lord A.
Campbell, Sir J.	Lister, E. C.
Castlereagh, Viscount	Litton, E.
Cavendish, hon. C.	Lushington, C.
Cayley, E. S.	Mackenzie, T.
Collier, J.	Marsland, H.
Currie, R.	Marsland, T.
Dalmeny, Lord	Maule, hon. F.
D'Eyncourt, rt. h. C. T.	Milnes, R. M.
Duncombe, hon. W.	Moreton, hon. A. H.
Dundas, D.	Morpeth, Viacount
Ellis, J.	Morris, D.
Fielden, J.	Muntz, G. F.
Fenton, J.	Murray, A.
Ferguson, Col.	O'Brien, C.
Fitzroy, hon. H.	O'Brien, W. S.
Fleetwood, Sir P. H.	O'Connell, D.
Godson, R.	O'Connell, J.
Gordon, R.	O'Ferrall, R. M.
Greg, R. H.	Parker, J.
Greig, D.	Parnell, rt. hn. Sir H.
Grey, rt. hon. Sir G.	Pattison, J.
Grosvenor, Lord R.	Pease,
Hall, Sir B.	Pechell, Captain
Harcourt, G. G.	Philips, M.

Plumptre, J. P.	Thornely, T.
Protheroe, E.	Tufnell, H.
Pryme, G.	Turner, E.
Rice, hon. E. R.	Vivian, J. H.
Roche, E. B.	Vivian, rt. hn. Sir R. H.
Roche, W.	Wakley, T.
Round, J.	Wallace, R.
Rundle, J.	Warburton, H.
Russell, Lord J.	Wilbraham, G.
Rutherfurd, rt. hn. A.	Wilde, Sir T.
Salwey, Colonel	Winnington, Sir T. E.
Scholefield, J.	Winnington, H. J.
Smith, B.	Wood, C.
Stansfield, W. R.C.	Wood, B
Stewart, R.	Worsley, Lord
Stuart, W. V.	Wyse, T.
Strickland, Sir G.	Yates, J. A.
Strutt, E.
Style, Sir C.	TELLERS.
Talfourd, Mr. Sergt.	Kelly, F.
Teignmouth, Lord	Ewart, W.

List of the NOES.
A'Court, Captain	Hodgson, F.
Bagge, W.	Howard, P. H.
Bentinck, Lord G.	Ingestre, Viscount
Blake, W. J.	Langdale, hon. C.
Botfield, B.	Law, hon. C. E.
Broadley, H.	Liddell, hon. H. T
Bruges, W. H. L.	Mackenzie, W. F.
Bryan, G.	Morgan, C. M.
Burrell, Sir C.	Morgan, O.
Busfeild, W.	Noel, hon. C. G.
Butler, hon. Colonel	Palmer, G.
Byng, G.	Parker, R. T.
Calcraft, J. H.	Patten, J. W.
Clements, Viscount	Peel, rt. hon. Sir R.
Darby, G.	Polhill, F.
Darlington, Earl of	Richards, R.
Douglas, Sir C. E.	Rickford, W.
Dugdale, W. S.	Rushbrooke, Colonel
Duke, Sir J.	Seale, Sir J. H.
Dunbar, G.	Shaw, rt. hon. F.
Duncombe, hon. A.	Sibthorp, Colonel
East, J. B.	Slaney, R. A.
Egerton, Lord F.	Somerville, Sir W. M.
Egerton, Sir P.	Stanley, E.
Fellowes, E.	Stanley, Lord
Fort, J.	Trevor, hon. G. R.
Gisborne, T.	Trotter, J.
Gladstone, W. E.	Ward, H. G.
Graham, rt. hn. Sir J.	Wilbraham, hon. B.
Hawkins, J. H.	TELLERS.
Herries, rt. hon. J. C.	Inglis, Sir R. H.
Hinde, J. H.	Dungannon, Viscount

Clause agreed to.

On the 5th Clause(administering poison, wounding with intent to murder):— Any person convicted of any of the said offences, not to be subject to the punishment of death, but to be liable to be transported for the term of the natural life of such person, or for any term not less than seven years, or to be imprisoned for any time not exceeding three years.

Lord J. Russell

said, there could be no second opinion as to the atrocity of the offence, or as to its being deserving of the most severe punishment. The only question to be considered was, as to the alleged repugnance of juries to convict. For his own part, he could not find that any repugnance existed which was likely to prevent a verdict of "guilty" in cases of attempt to murder which had been supposed; for, in the year 1839, the number of persons committed for trial for offences of that kind were thirty-four, out of whom twenty-two were convicted and twelve only were acquitted, whilst in the same year there were forty-six persons committed for trial for murder, of whom as many as thirty-three were acquitted, and only thirteen convicted. On that account he did not think it necessary, on the point involved in the clause, to alter the present law.

Mr. F. Kelly

had hoped to have the noble Lord's concurrence, especially after having heard him say that the enormity of criminality was not to be considered so much as the best means of deterring the evil-disposed from its perpetration. He with equal regret and surprise, perceived that principle was lost sight of in the speech of his right hon. Friend, the Member for Tamworth. The principle of all punishment should be to prevent crime. The clause exempted all attempts short of murder from capital punishment. The question then was, whether the abolition of capital punishment left society with a sufficient protection. The knowledge that the capital punishment would not be inflicted, would in his opinion, prevent the commission of murder, while the knowledge that it existed for the attempt to kill as well as the act itself, would be no doubt, in most instances, an inducement to the crime. Therefore, there was all the protection possible for society in the clause, while the capital punishment was inflicted for murder. But there was another ground in favour of the clause—namely the uncertainty of conviction, and the uncertainty of execution. Of forty-five indictments preferred for the crime in question during the last three years, only twenty procured a conviction; and of this twenty only two were executed—or one in ten. Therefore it was clear, that certainty of conviction and certainty of punishment was not obtained under the law as it stood; and the natural inference followed, that the ends of punishment were defeated. And yet the case was not where there was the greatest difficulty to get juries to convict. He, however, believed, that from henceforward the law in this respect would be still more inoperative, in consequence of the practice of framing indictments with two counts—the capital and the minor—introduced in 1837, and the inclination juries had always manifested to acquit on the one, and convict only on the other—the lesser offence of aggravated assault. He was of opinion, however, that to suffer the punishment of death to remain for the offence, would be to create uncertainty in the minds of men, and thus lead to the commission of crime without the certainty of conviction. It was on those grounds that he proposed the clause.

Viscount Dungannon

could not see the justice or the propriety of permitting the man who deliberately attempted murder to escape the severest punishment that could be inflicted by the law. He could not comprehend the distinction between the attempt, with the intention to kill, and the successful issue of that attempt, and he should therefore oppose the clause.

Mr. Monckton Milnes

supported the clause, because he believed that capital punishment should be reduced to the minimum consistent with the safety of the public.

Sir R. Inglis

objected to the clause being debated on the ground of expediency rather than on that of morality. He could not agree with the principle that the sole end of punishment should be to deter from crime. Those who argued that because juries would not convict for capital crimes capital punishment should be abolished argued from one abuse to another. In his opinion, such a circumstance was not sufficient to justify the alteration proposed in the law. He would give the public a stronger and a higher sense of the obligation of an oath or a declaration, and then there would be no more preference on the part of juries of theoretical opinions to the dictates of conscience. He called on the House, therefore, not to prostitute the law to the theoretical scruples of juries, and he should, under the circumstances, oppose the clause.

Mr. Law

was surprised at the charge made against juries by implication in the observations of the hon. and learned Mover of the clause. He, in a twenty years' experience, had known very few instances of indisposition on the part of juries to convict upon sufficient evidence, and it was to the judge the interposition in favour of the prisoner was chiefly owing, when reason for it existed. He did not concur in that or in the other argument on which the clause was grounded, and he should, therefore, not support it.

Mr. Brotherton

thought the House should not lightly recognize the principle, that the object of the law was the punishment, and not the prevention, of crime. He declared it to be his opinion, that man had no right to take the life of man, and that the sacred precepts as strongly condemned the executioner as the murderer.

Viscount Mahon

said, that the prerogative of the Crown had been always sufficient to provide for secondary punishment when it was shown to be necessary, and therefore there existed no good reason for the abolition of capital punishment. Supposing the case of a man who, having been convicted of wounding with intent to murder, perpetrated a second offence of the same nature against his gaoler. How would the lion, and learned Gentleman deal with that case? The highest secondary punishment having been inflicted for the first offence, the law could inflict no additional punishment for the second. On the ground that there were many cases which could not be properly dealt with if the punishment of death were abolished, he was willing to leave that punishment on the statute books, trusting for any necessary mitigation of it to a wise exercise of the prerogative of mercy.

Mr. Slaney

thought, that the apprehension of death was a powerful motive to deter men from the commission of crime, but in inflicting it he would distinguish between such as were perpetrated for the sake of gain, and such as were the result of violent passions, visiting the latter much more severely than the former.

Mr. Elliot

could not understand upon what principle they distinguished between murder and an attack with intent to murder. Would they keep the prisoner waiting for his trial till they ascertained whether the victim would die? Would they try a man to day for the minor offence, when the next day his crime might be murder? He should certainly vote against the clause.

The Committee divided on the question, that the clause as amended stand part of the bill:—Ayes 75; Noes 83: Majority 8.

List of the AYES.
Aglionby, H. A.	Litton, E.
Ainsworth, P.	Marsland, H.
Alston, R.	Milnes, R. M.
Archbold, R.	Moreton, hon. A. H.
Beamish, F. B.	Morris, D.
Blewitt, R. J.	Muntz, G. F.
Bridgeman, H.	Muskett, G. A.
Briscoe, J. I.	O'Brien, C.
D'Eyncourt, rt. hon. C. T.	O'Brien, W.
	O'Connell, J.
Douglas, Sir C. E.	Pattison, J.
Duke, Sir J.	Pease, J.
Dunbar, G.	Pechell, Captain
Ellis, J.	Pryme, G.
Ewart, W.	Rice, hon. E. R.
Fielden, J.	Roche, W.
Fenton, J.	Round, J.
Fleetwood, Sir P. H.	Rundle, J.
Fort, J.	Salwey, Colonel
Gisborne, T.	Scholefield, J.
Godson, R.	Seale, Sir J. H.
Greig, D.	Smith, B.
Grosvenor, Lord R.	Stansfield, W. R. C.
Hayter, W. G.	Stuart, W. V.
Hector, C. J.	Style, Sir C.
Hill, Lord A. M. C.	Talfourd, Mr. Serg.
Hindley, C.	Thornely, T.
Hobhouse, T. B.	Vivian, J. H.
Hodgson, F.	Wakley, T.
Hodgson, R.	Warburton, H.
Hoskins, K.	White, A.
Hughes, W. B.	Wilbraham, G.
Hume, J.	Williams, W.
Ingham, R.	Wilmington, Sir T. E.
Jervis, S.	Wood, B.
Jones, J.	Yates, J. A.
Langdale, hon. C.
Leader, J. T.	TELLERS.
Lennox, Lord A.	Kelly, F.
Lister, E. C.	Brotherton, H.

List of the NOES.
Abercromby, hn. G. R.	Dungannon, Viscount
Adam, Adm.	East, J. B.
Bailey, J.	Egerton, W. T.
Bewes, T.	Egerton, Lord F.
Blake, W. J.	Elliot, hon. J. E.
Blennerhassett, A.	Evans, W.
Botfield, B.	Farnham, E. B.
Broadley, H.	Ferguson, Sir R. A.
Brodie, W. B.	Glynne, Sir S. R.
Bruges, W. H. L.	Goulburn, rt. hon. H.
Bryan, G.	Greg, R. H.
Butler, Sir J. Y.	Hawkins, J.
Busfeild, W.	Heathcoat, J.
Campbell, Sir J.	Hinde, J. H.
Clay, W.	Hobhouse, rt. hn. Sir J.
Clements, Viscount	Howard, P. H.
Clive, hon. R. H.	Hutton, R.
Collier, J.	Kemble, H.
Dalmeny, Lord	Knatchbull, rt. hon. Sir E.
Darlington, Earl of
Dugdale, W. S.	Law, hon. C. E.

Liddell, hon.H. T.	Rutherfurd, rt. hn. A.
Lynch, A. H.	Shaw, right hon. F.
Mackenzie, T.	Sibthorp, Colonel
Mackenzie, W. F.	Slaney, R. A.
Mahon, Viscount	Somenrville, Sir W. M.
Marsland, T.	Stanley, E.
Morgan, O.	Stanley, Lord
Morpeth, Viscount	Strutt, E.
Morrison, J.	Teignmouth, Lord
O'Ferrall, R. M.	Tufnell, H.
Palmer, G.	Vivian, rt hn. Sir R. H.
Parker, J.	Ward, H. G.
Parker, R. T.	Wemyss, Captain
Parnell, rt. hn. Sir H.	Wilbraham, hon. B.
Patten, J. W.	Wilde, Sir T.
Philips, M.	Wodehouse, E.
Pigot, rt. hon. D.	Wood, G. W.
Polhill, F.	Wood, Colonel T.
Rae, rt. hn. Sir W.	Wyse, T.
Richards, R.
Rickford, W.	TELLERS.
Rushbrooke, Colonel	Maule, hon. F.
Russell, Lord J.	Inglis, Sir R. H.

Clause rejected.

On the 6th Clause (burglariously breaking and entering any dwelling house and assaulting, with intent to murder, any person being therein, and stabbing, cutting, wounding, beating, or striking such person):— Any person convicted of any of the said offences not to be subject to the punishment of death, but to be liable to be transported for the natural life of such person, or for any term not less than seven years, or to be imprisoned for any term not exceeding three years.

Lord John Russell

said, that he could not agree to that clause either. The law as established four years ago drew a distinction between burglary with violence to the person, and many offences amounting to burglary which were comparatively of a trifling nature, but all of which had been indiscriminately punished with death. The consequence was, that in more than 300 cases of all that had occurred the punishment of death had not been inflicted, and, indeed, there were very few in which it had. Within the last year seven persons had been tried for that offence, but of them four had been convicted—a sufficient proof that this was not one of that class of offences in which juries had exhibited a reluctance to convict. He need not enlarge upon the heinous nature of the offence—breaking into a house in the dead of the night and committing violence upon the inmates. At first the abolition of the capital punishment might not increase the amount of crime, but he was by no means sure that they could reckon upon that as a permanent effect. Times might come when distress or other causes might produce a great deal of crime, and when, in order to arrest the course of that crime, it might become necessary to inflict the punishment of death. He had heard nothing to persuade him that the fear of death was not likely to deter men from the commission of crime—of course, if the punishment was not to be inflicted it would not deter, but, if it were, the argument that it would not deter men from committing crimes seemed to him a refinement incompatible with all their experience.

Mr. Kelly

agreed with the noble Lord as to the heinous nature of the offence, and should be the last man to make any proposal which, in his opinion, could diminish that protection which the community had a right to expect from the law; but he proposed this measure because it would rather increase than diminish that protection. He would not repeat the arguments which he had before urged, and which had not been answered by the noble Lord; but he begged to point out to the noble Lord the evidence of a determination on the part of the people to make considerable advances on this subject: that was to be found in the decision which had taken place to-night, when the whole weight of the Government had only been sufficient in rather a full House to obtain a majority of 122 over 110. He entreated the House to consider whether by continuing these punishments it would not increase and extend crime.

Mr. Ewart

believed that there had been no execution during the last three years for this kind of offence, and the consequence was, that juries were willing to convict, acting upon the belief that the capital punishment would not be inflicted.

Viscount Dungannon

believed that juries paid a little more regard to their oaths than the hon. Member gave them credit for. His objection was as strong to this clause as to the one which preceded it. Midnight burglary was one of the most heinous offences, and he could not understand how this mistaken philanthropy would afford the community protection against it.

Mr. Hume

said, that, in his support of this measure, he was actuated by no false philanthropy—but he was convinced that, by making men accustomed to blood, they also made them more regardless of shed- ding it; they made them brutes, and then they complained that they were brutes. The noble Lord opposite had given no answer to the remark of the hon. Member for Wigan. The question was, not what juries ought to do, but what they did do? Had the noble Lord never heard of juries finding that 7l. 10s. 6d. of the current coin of the realm was less than 40s.; because, if the sum were above that amount the crime became capital? Many such instances had occurred, and would again, unless the degree and nature of punishment were adapted to the state of feeling in the community. Numerous executions did not prevent crime; let the House look to the result of the amelioration of the law which took place in 1833 as to burglary. In the six years ending December, 1832, fifty-six persons had been executed for that crime; and in the six years ending December, 1838, three persons had been executed; and during the former period there had been 5,199 committals, whilst during the latter there had only been 4,621. And the same was the effect throughout the whole catalogue of crimes. He agreed in the observation of the hon. and learned Member, that if the independent voice of the House had been taken on a former clause it would have been carried, but the votes of the Treasury bench had turned the scale.

The Committee divided on the question that the clause as amended stand part of the bill:—Ayes 73; Noes 100: Majority 27.

List of the AYES.
Aglionby, H. A.	Hindley, C.
Ainsworth, P.	Hobhouse, T. B.
Alston, R.	Hodgson, R.
Archbold, R.	Hollond, R.
Barry, G. S.	Hoskins, K.
Blewitt, R. J.	Hughes, W. B.
Bridgeman, H.	Hume, J.
Briscoe, J. I.	Hurt, F.
Brotherton, J.	Ingham, R.
Bruges, W. H. L.	Jervis, S.
Dennistoun, J.	Jones, J.
Douglas, Sir C. E.	Kemble, H.
Duke, Sir J.	Langdale, hon. C.
Eliot, Lord	Leader, J. T.
Ellis, J.	Lennox, Lord A.
Fielden, J.	Lister, E. C.
Fleetwood, Sir P. H.	Lynch, A. H.
Fort, J.	Mackenzie, T.
Gisborne, T.	Marsland, H.
Grosvenor Lord R.	Milnes, R. M.
Hayter, W. G.	Morris D.
Hill, Lord A. M. C.	Muntz, G. F.
Hinde, J. H.	Muskett, G. A.

O'Brien, W. S.	Style, Sir C.
O'Connell, J.	Talfourd, Mr. Serg.
Pattison, J.	Tennent, J. E.
Pease, J.	Thompson, Mr. Ald.
Pechell, Captain	Thornely, T.
Price, R.	Vivian, J. H.
Pryme, G.	Wallace, R.
Rice, hon. E. R.	Warburton, H.
Round, J.	White, A.
Salwey, Colonel	Williams, W.
Scholefield, J.	Winnington, Sir T. E.
Smith, B.	Wood, B.
Stanley, E.	TELLERS.
Stansfield, W. R. C.	Ewart, W.
Stuart, W. V.	Kelly, F.

List of the NOES.
Abercromby, hn. G. R.	Houstoun, G.
A'Court, Captain	Howard, hon. E. G. G.
Adam, Admiral	Howard, P. H.
Armstrong, A.	Hutton, R.
Bailey, J.	Inglis, Sir R. H.
Bellew, R. M.	Knatchbull, right, hn. Sir E.
Bewes, T.
Blackburne, I,	Law, hon. C. E.
Blake, W. J.	Liddell, hon. H. T.
Botfield, B.	Lygon, hon. General
Bramston, T. W.	Mackenzie, W. F.
Broadley, H.	Maunsell, T. P.
Brodie, W. B.	Miles, P. W. S.
Bryan, G.	Morgan, O.
Bailer, Sir J. Y.	Morpeth, Viscount
Busfield, W.	Morrison, J.
Campbell, Sir J.	Noel, hon. C. G.
Clay, W.	O'Brien, C.
Clements, Viscount	O'Ferrall, R. M.
Clive, hon. R. H.	Packe, C. W.
Collier, J.	Pakington, J. S.
Dalmeny, Lord	Palmer, G.
Darlington, Earl of	Parker, R. T.
D'Eyncourt, right hn. C. T.	Parker, J.
	Parnell, rt. hn. Sir H.
Dugdale, W. S.	Patten, J. W.
Dungannon, Viscount	Philips, M.
Egerton, W. T.	Philips, G. R.
Egerton, Lord F.	Pigot, right hon. D.
Elliot, hon. J. E.	Polhill, F.
Evans, W.	Praed, W. T.
Farnham, E. B.	Rae, right hn. Sir W.
Fellowes, E.	Richards, R.
Ferguson, Sir R. A.	Rickford, W.
French, F.	Round, C. G.
Gladstone, J. N.	Rumbold, C. E.
Glynne, Sir S. R.	Rushbrooke, Colonel
Gordon, R.	Russell, Lord J.
Goulburn, rt hon. H.	Rutherfurd, rt. hn. A.
Greg, R. H.	Seale, Sir J. H.
Grey, rt. hn. Sir G.	Sheil, rt. hon. R. L.
Grimsditch, T.	Sibthorp, Colonel
Hawkes, T.	Smith, R. V.
Hawkins, J. H.	Somerset, Lord G.
Hayes, Sir E.	Strutt, E.
Heathcoat, J.	Teignmouth, Lord
Hector, C. J.	Vere, Sir C. B.
Hobhouse, rt. hn. Sir J.	Vivian, rt. hn. Sir R H.
Houldsworth, T.	Wilbraham, G.

Wilbraham, hon. B.
Wilde, Sir T.	TELLERS.
Wood, Colonel T.	Mahon, Viscount
Yates, J. A.	Maule, hon. Fox

Clause rejected.

Mr. F. Kelly

then said, that he should not proceed farther with the bill at present. He had introduced it with no other intention than that of ameliorating the criminal laws of the country, and he thought it due to the many hon. Gentlemen who had supported him to say that, had it not been opposed in its principal clauses by the whole weight of the Government, he should have been enabled to carry it. But when he found the public opinion, and the opinion of so many hon. Members in the House, were opposed by the whole power of Government, it would be vain for him to continue, and he felt that he would best consult the convenience of the House and the interests involved in the bill itself by not proposing to carry it further that evening. The noble Lord had himself brought forward a bill for the amendment of criminal punishment, in which in some cases capital punishment was abolished. Should the noble Lord go on with that bill with the expedition which he had it in his power to command, and use that influence which would show a prospect of its being carried immediately, he should not further trouble the House with his present bill. Although the Government would not thus go the length which he could wish, they would still do much. He should beg leave to move, that the Chairman report progress.

Mr. Aglionby

begged to remind the hon. and learned Gentleman, that it was from that the Ministerial side of the House that the bill had been supported, and that it had met its opposition from the other side. He hoped that, under some Government, a bill carrying out the full principle of the hon. and learned Member, would be made the law of the land.

Mr. Kelly

said, the hon. Member had mistaken him, if he thought that he was not conscious that he had received the warmest and most effective support from the other side of the House. He felt that if the bill, or any similar bill, should ever be brought into that House, it would be at least supported by a great majority of those who sat on the other side of the House.

Lord J. Russell

I cannot but think that it was my duty, as a Member of the Government and as Secretary of State, taking a great part in the administration of the criminal laws, and who had some part in the amendment of the criminal laws, to state my opinion of the general propositions made by the lion, and learned Gentleman which to me went to justify me in supporting them, after the best judgment I could form upon them. In so far the hon. and learned Gentleman has no right to complain of me. He has no right to complain either of my influence upon the Gentlemen of this side of the House, for the support he had received was from this side, while my views were supported by Gentlemen opposite. But this question has, in fact, been as fairly debated in this House as it could be expected. It. is my intention to go on with the bills which I have introduced, and as the hon. Gentleman will not proceed with this further at present, I shall lose no time in going on with mine. I understand that the chief points of the bill have been agreed to.

Sir R. H. Inglis

said, it would never have entered into any other person's head than that of the hon. Member for Cockermouth, to think of this bill as a party question.

House resumed.

The Chairman reported progress, committee to sit again.