HC Deb 15 June 1808 vol 11 cc877-86

On the motion of sir Samuel Romilly, that the house resolve itself into a committee of the whole house on the Privately Stealing bill,

Mr. Burton

said, that during the last twenty or thirty years it had been his lot to have some experience in the administration of the Criminal Law; he should therefore be wanting in his duty to the public, as well as respect to his learned friend, if he omitted to pay what attention he could to the present bill; and he was desirous to state a few observations upon it before the Speaker left the chair, because they were connected with the principle of the bill. He confessed he was somewhat at a loss whether to look for the principle in the enacting part, or the preamble, because they seemed to be at variance with each other, or at least not co-extensive. The preamble laid down very general abstract positions, which far exceeded the object of the bill, and went to condemn a very large proportion of our criminal laws. Now, in his opinion (without stopping to discuss the truth of the positions), nothing could be more objectionable than to pronounce by statute such a parliamentary condemnation of a great part of our criminal laws, and yet to leave those very laws in full force. To him, consequently, it appeared indispensable to expunge the preamble altogether, and introduce another suited to the limited object of the bill. The principle, as it was to be collected from the enacting part, was to abolish the capital punishment, and to reduce the offence as well as the punishment, down to the standard of simple larceny. Now so far as it took away the punishment of death, he was inclined to approve it; because sentences of death often pronounced in cases where they were scarcely ever fit to be executed, tended much to diminish their effect: but he could by no means accede to the propriety of leaving the offence punishable with no greater severity than simple larceny. His learned friend was reported to have introduced the bill with pretty severe comments on the statute of Elizabeth intended to be repealed; and any proposition of his was sure to come recommended by so much eloquence as to render it a difficult matter to consider it immediately with an unbiassed mind: yet upon reference to the statute, it would be found to contain a statement of facts verified by an experience of two centuries and a half, and equally applicable to the present time. It states that the offenders then called cut-purses were very numerous, confederated into fraternities of an art or mystery to live idly by secret spoil, even to the impoverishment of many, frequenting for that purpose places of public resort, such as places of divine worship, the court, courts of justice, fairs, markets, and places of execution, and being habited in such a garb as to elude suspicion. To this enumeration of places, the bank of England, and the approach to bankers' shops, might now be added: in every other respect the description suited the present time. He was well informed by magistrates of experience that the number at present exceeded hundreds, some thought to the amount of several; that many underwent a regular training to the art; that they plundered to such an amount, and were so far confederated, that large sums were never wanting for the purpose of procuring the ablest assistance upon their trials, or of buying off prosecutors or witnesses; upon the whole, next to nightly housebreakers, no class of offenders were so pernicious. It was also observable that the circumstances described in this statute had always been deemed aggravations of the offence of simple larceny, and therefore deserving of an aggravated degree of punishment. Such were the number of offenders, and the extent of the depredations, that they were perpetrated with an art which denoted education, by gangs which were dangerous, and in a manner to elude all ordinary care and vigilance. That these practices prevailed to an alarming extent, and would not be repressed without severer punishment than transportation for seven years (the highest punishment for simple larceny), he could unfortunately testify from his own experience, in the county palatine of Chester. What had there happened within these few years, he was sure must strike the benevolent mind of his learned friend. During four or five years preceding the spring of 1860, several boys had been there brought to trial; the numbers had been increasing, till seven or eight at one assizes appeared to be confederated in a regular gang, and to hive frequented the neighbouring fairs and markets, executing their designs with all the same art and system that was to be found within the metropolis. The court, having before tried milder punishments, proceeded upon this occasion in two instances to transportation for seven years; but so little terror did this punishment inspire, that at the spring assizes in 1806, among forty prisoners, there was the melancholy exhibition of no fewer than 17 boys between the ages of 12 and 16. They came from the manufacturing part of the county, and their offence was generally that of privately stealing, either from the shop or the person. Several were acquitted, either from accidental defects, or for want of prosecution through the tenderness of their prosecutors: but among those who were convicted, some received sentence of death, and the former punishments having proved ineffectual, it was judged necessary to make a severer example by transporting two for seven years, and recommending two of the capital convicts to the royal mercy on transportation for life. This increased severity happily produced a better effect, insomuch, that during the four last assizes, only four boys had appeared in the calendars, and none of them members of any regular confederacy. From all the foregoing circumstances he drew this inference; that simply to repeal the statute of Elizabeth, as the bill proposed, would operate, not to the prevention, but to the encouragement of this species of theft, and that the power of transporting for life was indispensable. There existed, likewise, one difficulty in prosecutions under the statute of Elizabeth, which arose out of the construction which had been put upon the words, 'privily without his knowledge.' This difficulty might, in his opinion, be removed with advantage, by annexing the severer punishment to any larceny from the person, under circumstances not amounting to robbery: because it was an old and just principle in the law, that the person as well as the house ought to be protected with more than common care. For a similar reason it was, in his opinion, unwise to make any distinction as to the value of the thing stolen; no such distinction being made either in the case of robbery from the person, or in that of burglary; more especially likewise as it often happened, even where a large property was stolen from the person, that the money if found having, in the language of the law, no ear mark, could rarely be proved; whilst the purse, or the pocket-book containing it, though of trifling value, could easily be identified. For these reasons he strongly recommended, that instead of death, should be substituted transportation for life, or any shorter time not less than 7 years, or a long or short imprisonment with or without hard labour, at the discretion of the court, as the case might require. If therefore his learned friend was disposed to allow that the bill should be thus modified in the committee, he was inclined to think that it might prove an amendment of the law.

Mr. Herbert

(of Kerry) likewise objected to the preamble of the bill. Human laws, he said, were made for preventing, not for avenging crimes, and hence it often happened that punishments seemed to be disproportioned to the crimes. There were two different kinds of criminal legislation, according to archdeacon Paley: the one was that which assigned capital punishments only to the highest species of crimes; the other, that which, had been adopted in this country, assigned capital punishments to a variety of crimes, but inflicted it upon only a few persons of each class by way of example. He had no hesitation in confessing that he agreed in opinion with the excellent author to whom he had alluded, but he should not be so averse to the bill itself were it not for the declaration in the preamble. He hoped, however, that at all events it would be postponed till another session.

Sir Arthur Piggott

agreed that the criminal law of the land ought not rashly to be altered. But he contended that the law had not answered the great purpose of preventing crimes, and that its failure ought to be ascribed to its severity, which in many instances prevented persons from prosecuting those guilty of smaller offences. How far it might be proper to modify the severity of the punishment, was another question not now before the house, and which would furnish matter of discussion in the committee.

The Solicitor General

thought that there was at least so much good in the bill as to sanction the going into a committee upon it, for the purpose of seeing whether it was possible to find a remedy for an evil of very great magnitude, or not. He did not mean, however, to pledge himself finally to give it his support, because he was not sure whether it would be possible for the committee to remove his objections to it.

Mr. C. W. Wynne

confessed that the house ought not rashly to alter the criminal law of the country. The law, however, which it was now proposed to change, had never been executed in the recollection of any person now living. The consequence of this was, that its effect was lessened, because the probability of escape was great. He was of opinion, that it might be expedient to leave a discretionary power to the judges, of transporting for life persons guilty of the offences to which the bill applied; indeed, he thought, that transportation for life was generally preferable to transportation for a limited time; because when the culprits returned, being wholly without character or protection, they were in most cases compelled to revert to their former habits.

Mr. Ponsonby

agreed with those who were of opinion, that the house ought to go into a committee on the bill; because there was nothing in the bill which ought not to be the great object of all criminal law, namely, suiting the punishment to the crime.

Mr. Leycester

contended, that the law could never provide satisfactorily for the great variety of cases, in which it would be to be decided by circumstances, whether the offence should or should not be punished with severity. It was only by the discretion of the judge that cases of this kind could be properly regulated, and therefore he disapproved of the principle of the bill.

Sir Ralph Milbanke

thought that the less discretion was left in the administration of criminal justice, the better; and agreed with a learned author, who had said, that it was better to have law without equity, than equity without law. He should certainly vote for going into a committee on the bill.

Sir Samuel Romilly

did hope that this bill would pass in the present session. He thought the preamble of the bill ought to be retained. It contained the reasons on which he brought in the bill, and on which he hoped it would pass. But if gentlemen thought differently from him, he would give up the preamble, and be content to substitute the common preamble, 'Whereas it is expedient.' The present extreme rigour of the law shocked the humanity of prosecutors, of juries, of judges, and led them to compromise the law and the offence, rather than go to the extent of inflicting capital punishment where it was severe beyond all proportion to the crime. This frequent impunity encouraged offenders to repeat their crimes, and if, after a multitude of escapes, they at length suffered, they attributed the misfortune to accident or want of dexterity, rather than to justice and the vigour and vigilance of the law. He cited Mr. Justice Blackstone to prove, that this lenity of judges and juries, from the necessity of doing something to counteract the extreme rigour of the law, encouraged offenders to go on. The legislature, in suffering the excessive penalties that required this evasion to remain, was an accomplice in the encouragement given to criminality. It was lamentable that when any person proposed to render the law more mild, the jealousy of so many persons was excited; and that, when it was proposed to add to its severity, no complaint was made. A bill had recently passed adding nine new capital felonies to the former catalogue. To this bill nobody objected, though, he would maintain, that an increase of severity was as great an innovation as a repeal of severity to the same extent. He also adverted to the Indictment Bill lately passed, as an innovation of much greater magnitude than the present bill. He adverted to the committee appointed twenty years ago, of which Mr. Fox was a member, to inquire what criminal punishments ought to be repealed. They reported six statutes. The bill of repeal passed this house, but was lost in the lords by the prorogation of parliament, though the first authorities in that house agreed to repeal five of the six acts reported. He allowed that a remedy was found in explaining the value of money under the statute of Elizabeth, according to the relative value of goods at that time and at present. But this remedy was not of a satisfactory kind. It was merely discretionary, and the exercise of that discretion was not always regulated by the best reasons. He knew a case, and it was well known, in which a judge of very respectable character directed the jury to find a stolen key of the full capital value, because it appeared to be stolen with a view to commit a theft. From all these reasons, he hoped the house would not only go into the committee, but ultimately pass the bill.—The house then went into the committee.

The Solicitor-General

stated his reasons for proposing certain new clauses. He should suggest certain alterations, both in the description of the offence, and in the punishment to be inflicted. It was a crame of considerable magnitude, and was, no doubt, daily increasing. He could state, however, what appeared to him to be one real cause of criminals having been so often acquitted of the charge of privately stealing. If, upon a trial, it turned out that an individual lost his purse or watch, and had, in the moment, perceived the act committed, that circumstance freed the criminal from the capital part of the punishment. If, on the contrary, the individual robbed perceived the commission of the fact, it being generally committed by gangs of persons, who transferred the property from one to another, still that individual could not fix upon the very person whose hand took the property, and consequently the whole of the criminals were acquitted of the capital part of the charge. This, he thought, accounted much more naturally for the frequent instances of impunity which had occurred. The offence was that of feloniously taking property from the person of another. Grand larceny occurred where property was either taken from the person, or feloniously from a house, and it would therefore be aggravating the offence. He should propose to omit, in the description of the offence, stating whether it was privately or not, in order to contra-distinguish it from robbery, which was the taking of property with violence; although he thought it was an offence bordering upon it; as he believed, there were persons much disposed to use force upon such occasions should they meet with any resistance. He therefore thought, it was a felony that ought to be punished with more severity than mere simple larceny, and he should propose, that a punishment somewhat more adequate than that stated in the bill should be substituted; leaving it at the same time in some degree to the discretion of the Judge, according to the circumstances of the case. His object was to get a punishment somewhat above that of mere larceny, and at the same time below that of a capital offence. He should propose that the highest punishment should be transportation for life, and that the lowest punishment should be transportation for a period not less than 7 years. At the same time, it might be proper for the Judge to have it in his power to make a substitution for transportation, namely, imprisonment in the house of correction, for a period not exceeding three years. The learned gent. then concluded with proposing amendments to the effect he had stated.

Mr. Windham

opposed the principle of making transportation the minimum of punishment for such offences as had been described. There might very justly exist doubts as to the degree of criminality existing on the part of the offender, and certainly there should, be no unnecessary restriction laid on, with respect to the equalization of the punishment to the crime itself. He recited an instance of the extreme severity of the law, in sentencing a poor young woman to transportation, for having, in a sort of jest, stolen one of her companion's bonnets, and who, after a considerable time passed in captivity, made her escape with some other daring exiles, to the port of Timur, in China, in an open boat, after a passage of several thousand miles, through a most stormy sea, and unparalleled suffering.

Mr. Horner

considered reform necessary for the purpose of bringing the law, as it now stood, to the original principles of its institution. He quoted a passage from Judge Blackstone before alluded to, stating that sir H. Spelman had, above a century before, lamented, that although all things had, since the original foundation of our law, on this head, in the time of the Saxon monarchy, extraordinarily increased in price, yet the life of man was daily growing cheaper, by permitting it to be forfeited for the peculation of the same sum for which it had been forfeited in the reign of the Saxons. It should therefore be the business of the present times to reduce the law to its ancient state; and if the same punishments were continued, to equalize them to the crime, or in other words, to the value of the goods thus stolen. He felt it his duty to oppose the clause as too novel; in fact, it was much more so than the bill itself; though the proposition came from an hon. member who was the more averse to the bill from the consideration of its tendency to innovation. Besides, the clause had come into the house under the most inauspicious circumstances, whilst the bill was in a committee, and without any notice. These circumstances could not escape the attention of the house, nor fail to excite some degree of jealousy on the subject.

Mr. Burton

contended that transportation for limited periods failed often of producing that salutary effect on the morals of the convicts which it was expected this mode of punishment would have had. If the punishment were only resorted to in such instances as would justify its continuance for life, it would be cutting off all hope of return to the old scene of their criminality, and probably correct those vicious propensities they had formerly indulged in. He concurred most heartily in remitting, in several instances, the punishment of death, for other less punishments. Though he was decidedly in favour of the system of giving a latitude to the discretionary power of the Judge, in proportioning the severity of the punishment to the nature of the crime.

Mr. Abercromby

considered it a defect in the law of England, not to extend transportation to the natural period of the criminal's existence. He reprobated the idea of increasing the discretionary power of the judge. The law, he thought, should be clear, discriminatory, and decisive, and the less was left to the arbitrary will of the judge, the better. It had been said, that as there were many shades of difference, it would be better the judge should have a proportionate option: admitting even this position, still it would not follow, that transportation for life would not be a national as well as an individual advantage. Whatever might be the nature of the confinement, or punishment, as it was termed, of transportation, it was certain, a temporary banishment was productive of no good effects to the morals of the convicts. Was it, then, proper to send so many young persons and children out to that colony for a short space, who, in the course of nature, might be expected to return pregnant with all the accumulated contagion of those more experienced offenders, who had grown old in habitual vice and infamy? From his present view of the importance of this subject, he assured the house he would early in the next session move, that a Committee be appointed to take into consideration what advantages had followed the introduction of the present system.

Mr. Wharton,

the chairman, thought the most regular way of introducing the present clause to the consideration of the house, would be by first reporting progress, and then moving in the house, that an instruction be given to the committee to introduce the present clause, after which it might at leisure be discussed in the committee.

Sir Samuel Romilly

observed, that he had not justly incurred the censure so liberally bestowed on him, of indulging in wild theories. The imputation he thought unjust, and undeserved: his intentions were to restore, not to shake, the foundation of the common law. The clause he censured as altogether objectionable. The duration of the punishment for seven years was sufficient to answer all the purposes expected. He wished, if possible, the clause should be received, in order that it might be fully discussed, when the house was in possession of both the act itself and the clause in point.

Sir Charles Bunbury

thought very few of those transported for seven years ever were able to come back at the expiration of their sentence: this, so far from being a national benefit, was a national reflection on our justice.—The bill was then recommitted, and the clause added to it; and the house having resumed, the report was received, and ordered to be taken into further consideration on Wednesday.