Sir Samuel Romillyrose to make the motion of which he had given notice, for some amendments of the Criminal Law. He was aware that from part of the public, and particularly that part of it whose opinion might be supposed to have most influence upon his conduct, a person who had such amendments to propose could hardly expect praise, but must consider it enough if he meets with excuse. His apology must be, that he had not taken up the matter lightly or on a sudden; that the subject which he presumed to bring before the house, was one which had occupied his thoughts for many years of his life. He had long ago promised himself, that if ever he should have the honour of a seat in this house, he would bring forward some measures for reforming the criminal law; and recollecting this, he could not but feel that he ought rather to apologise for having delayed the proposal so long, than for bringing it forward now.—In the criminal law of this country, he had always considered it as a very great defect, that capital punishments were so frequent; and were appointed, he could not say inflicted, for so many crimes. No principle could be more clear, than that it is the certainty, much more than the severity of punishments, which renders them efficacious. This had been acknowledged ever since the publication of the works of the marquis Beccaria; and he had heard, he could not himself remember it, that upon the first appearance of that Work it produced a very great effect in this country. The impression, however, had hitherto proved unavailing; for it has not in this country, in a single instance, produced any alteration of the criminal law; although in some other states of 396 Europe such alterations have been made. Indeed, if one were to take the very reverse of the principle, that would be a faithful description of the criminal law of England; in which punishments are most severe, and most uncertain in their application. It is notorious, how few of those who are condemned, actually suffer punishment. From returns which are to be found in the Secretary of State's office, it appears, that in the year 1805 there were 350 persons who received sentence of death, and of whom only 68 were executed, not quite a filth part of the number; in the year 1306, 325 received sentence of death, of whom 57 were executed; and in 1807, the number was 343, of whom there were executed 03. If we deduct the number of those who received sentence of death for crimes for which pardon is never, or very rarely, granted, and take the number of those who are convicted of felonies, which have been made capital for some circumstances, which are not in truth circumstances of aggravation, perhaps it will be found that of 20 persons condemned to die, only one suffers death. The question is, whether the administration of justice should be suffered to continue in such a state, where the execution of the law is not the rule that is observed but an exception to it, and where it has been lately said in language, which one would expect to hear rather from the lips of a satirist than from the seat of judgment, that the "law exists indeed in theory, but has been almost abrogated in practise by the astuteness of judges, the humanity of juries, and the clemency of the crown."—His present purpose was to call the attention or the house to one class only of these severe statutes that had, from the change of circumstances, acquired a severity which was not originally intended: those in which the capital part of the change depends on the amount of the property stolen; such as the statute of Elizabeth, which punishes with death the stealing privately from the person of another property to the value of 12 pence; the act of William and Mary which makes privately stealing in a shop to the amount of 5 shillings a capital felony, and many other statutes of the same kind. Such an alteration had taken place in the value of money since those statutes passed, that it was astonishing that the law should have been suffered to remain in words the same to the present day; the offences, in the mean time, having become altogether dif- 397 ferent. Perhaps there was no case which could render more striking the truth of lord Bacon's observation, that time was the greatest of all innovators; for in proportion as every thing which contributed to the support, the comfort, and the luxuries of life had grown dearer, the Life of man had become cheaper and of less account.—There were many mischievous consequences, resulting from such a state of things, which did not strike one at first; but which became more evident, the more they were reflected on. Such laws cannot be executed. Juries are placed in the painful situation of violating one of two duties; they are reduced to the alternative of violating their oath, or what they are sometimes mistakenly induced to think more binding on them, the dictates of humanity. Often against the plainest evidence, juries find the property not to be of the value of which they and everybody else know it to be; and this comes to be considered, as Blackstone somewhere expresses it, as a "pious perjury," words which one is sorry to see ever put together: for nothing can lead to more immoral consequences, than that men should familiarize themselves with the violation of a judicial oath. The law ought not to remain so. Offenders are often acquitted against the clearest evidence: and the very severity of those laws, by a necessary consequence, holds out an encouragement to crimes. While there are thus two laws, one upon the statute book, and another in practice, a total change has taken place in the nature of that which is considered as the most valuable prerogative of the crown; the prerogative of shewing mercy. The true state of the case is, that, in exchange for that prerogative, the crown has the painful duty imposed on it, of selecting those upon whom the judgment of the law shall be executed. In London and Middlesex this is done by the privy council, but upon all the circuits this duty devolves upon the different judges of assize; and it is felt by them to be the most painful of their duties. No rules are laid down to govern them in the discharge of it; but they are left to their own discretion, which must necessarily be as various as are their different habits and sentiments and modes of thinking. It may be the opinion of one judge, that punishments ought to be inflicted most strictly when crimes are most frequent; another, with the same anxiety for the discharge, of his duty, thinks that it is most useful to be rigourous when crimes 398 make their first appearance. One judge is more influenced by humanity; another more swayed by a sense of what is due to the safety of the community. And thus, their discretion is apt to be exercised under motives, not only different, but often quite contrary. The question was, what should be the remedy? Being sensible that, when a private individual takes upon himself to propose alterations in the law, it becomes him to proceed very cautiously, to do at first too little rather than too much, to alter and yet not seem to innovate, and to have the test of experience in favour of his first essays at improvement, before he proceeds to propose all that he would have established; being strongly impressed with this, he had at first intended only to move to repeal the statutes, and to propose others in the same words, only with sums equivalent to the value of what was originally fixed by the legislature; and by re-enacting the laws such as by the authors of them they were meant to be, to repeal those statutes which time and a change of circumstances had imperceptibly substituted in their place. But, when he found that he would thus be enacting capital punishments for offences, in which there are no circumstances of aggravation, he could not bring his mind to do it, and he determined to propose the simple repeal of all those statutes. As, however, they will require different considerations, he judged it most expedient to bring them one by one under the review of the house; and he proposed, therefore, to begin with the most objectionable, the 8th of Elizabeth, chap. 4. which made stealing privately from the person a capital offence: declaring it at the same time to be his intention, and wishing it to be understood, that he will at proper times bring forward a repeal of the others. The unnecessary severity of the 8th Elizabeth, its absurdity and want of logic, made it a disgrace to the statute book. (Read the preamble and first enacting clause.) Reciting that the offence was sometimes committed under circumstances which were an aggravation, therefore it enacts that in all cases, and although there was no aggravation, clergy should betaken away. In his time, he never had heard but of one single instance in which an offender, convicted under this statute, suffered death; it was a case upon the northern circuit, where a pick-pocket detected in court was immediately tried and left for execution. It was a solitary case as far back as he could re- 399 member, and even if that had been omitted, it would have been no great misfortune. Under this statute, from the strict construction which the judges observed of the word "privily," that very violence which would bean aggravation of the offence, if it is not such as to amount to robbery, saves the offender.—There was another subject which, he thought, required the interposition of the legislature; it was to provide, in certain cases, a compensation to persons tried and acquitted, after having been long detained in prison. At present they have no compensation, except by an action for a malicious prosecution, where the judge is satisfied there was no probable cause. If suspicion of having committed a crime falls upon an individual in the labouring class of the people, whose family depends upon his daily wages for subsistence, he may be eight months in gaol; for that is sometimes the interval between the summer and lent assizes; and in the four northern counties, he may be imprisoned above a year. His family in the mean time is, probably, consigned to the workhouse, and when he returns home after an acquittal which completely establishes his innocence, he finds them ruined in their health or corrupted in their morals. If, for the convenience or utility of the public, private property is ever interfered with by the authority of parliament, full compensation is carefully made to the owner; but what is that loss which is thus compensated to the opulent, compared with the injury suffered by the poor man in the case he had mentioned? It will be said, that such a case does not happen often, but it sometimes happens, and in such cases a remedy ought, no doubt, to be provided. The difficulty was, that it is not every person acquitted who deserved compensation; because many persons were acquitted who are still guilty; acquittals from defects of form being unavoidable, even under the best ordered laws. Another difficulty was, that if such a remedy were given by law, it might have a mischievous effect towards those very persons, who are the objects of redress; because in some cases the evidence was so nicely balanced, that if the jury felt themselves reduced to the alternative of convicting or of giving a reward to the prisoner by acquitting him, this consideration might have the effect of determining them to convict. The discretion of saying in what cases compensation should be given, could only be reposed in the jury or in the court; and he thought 400 that there could be no hesitation between those two. The jury ought not to have their attention diverted from the single point of ascertaining the fact, of guilty or not. Fortunately, there was already in our statute book, an act which he should take as a model. Till the year 1752, no compensation was made by law to prosecutors for their expence and trouble in bringing offenders to justice; a circumstance which one might be surprised at, if; such circumstances did not come very seldom before the legislature. Before such compensation was allowed, it often happened that the prosecution was by much a I greater evil to the person, whose property had been taken from him, than that loss of property by the offence. The 25th Geo. 2. chap. 36. § 11. placed it in the power of the court, upon consideration of the prosecutor's circumstances, to grant him an order upon the treasurer of the county for his expences, and a reasonable allowance for his time. He meant to make this the model of the bill he proposed to move for leave to bring in. He hardly thought it necessary to anticipate any objection to this compensation, as being a new burden upon the county. Perhaps it might be thought, that the same reason existed for granting a similar compensation in cases of misdemeanour; but he meant to confine it to felonies, following the principle of the act of George 2. and to give compensation to persons acquitted only in the same cases where it was already by law given to the prosecutor. He moved, in the first place, for leave to bring in a bill to repeal so much of an act made in the 8th year of queen Elizabeth, as takes away the benefit of clergy from persons convicted of stealing privily from the person of another.
Mr. Herbertsaid, he was one of those who approved of the laws, and he thought that very good grounds ought to be laid down before any innovation was made upon them. He disapproved, in particular, of the proposal for making compensation to persons who had been tried and acquitted. He suspected that, in Ireland, many indolent persons would reckon it no hardship to be confined in a comfortable prison.
§ Mr. Wilberforcediffered so completely from the hon. gent. who had just sat down, that he declared he had experienced the most unmixed satisfaction at what had fallen from the hon. and learned baronet. He well remembered that a great and la- 401 merited public character (Mr. Pitt), at an earl period of his life, had intended to have a digest made of the whole of our criminal code, with a view of lessening, in a great degree, the number of capital punishments which it contained, and the objections to which it was impossible to confute. He congratulated the house and the country that an individual so well qualified for the task by his ability and experience as the hon. and learned bart. had turned his attention to this most important subject.
§ Sir John Newportsaid, he could not help expressing surprise at what an hon. gent. (Mr. Herbert) had stated as to Ireland. He was at a loss to know in what part of Ireland the prisons were so comfortable, as to prove an inducement, to indolent persons wishing a confinement. He believed the gaols were so far from being commodious, that they rather excited horror and detestation, and many instances had occurred where men's toes were eaten by rats: was this the accommodation the hon. gent, thought so agreeable as to be prized by the Irish people?
Mr. Herbert, in explanation, said, he still believed there were many persons who led a life of idleness, who would think themselves well accommodated in the gaols of Ireland.
§ Sir G. Hillcontended, that in Ireland, and particularly in the province of Ulster, there was as much humanity on these subjects as in England.
The Solicitor General, professing, as he felt, the most unfeigned respect for the ability and zeal of his hon. and learned friend, who brought forward the present motion, was by no means satisfied that it would produce the benefit expected from it. He was not, indeed, prepared to say whether the good or evil it might produce was likely to preponderate. In this situation he should only lay in his claim to approve or disapprove of the measure, as, on more mature reflection, he, should be of opinion it merited. Whether the attempt to grant compensation to persons acquitted of offences imputed to them, might not be productive of greater evil than good, was not now the question. He was certainly inclined to think, that however plausible the theory, the practice would be very injurious.
Sir Francis Burdettfelt himself bound to pay the tribute of his testimony and approbation to the ability and motives of the hon. and learned baronet, by whom this 402 motion had been made. Part of it, however, appeared to him to be so contrary to what he had always understood to be the constitutional principles of this country, that he could not sit still in the house, and, by his silence, seem to give a tacit acquiescence in the propriety of the proposition. He thought it his duty, therefore, to say, that from what he had heard, he was by no means impressed with a favourable opinion of the bill proposed to be introduced. It was to his mind a grievous consideration, that after a verdict of acquittal by a jury of his country, it should be possible to tell any man that he was not honourably acquitted, but that an imputation of guilt still attached to him. What a grievous responsibility must, in this case, attach to the judge, who was, after a verdict of acquittal by the jury, to determine whether that acquittal was honourable or not. If this doctrine was to be sanctioned, in his opinion it was contrary to all the old established principles of the constitution of this country, and as such could not meet with his approbation.—Leave was then given to bring in the bill.
Sir Samuel Romillythen again rose. He was sorry that he had been so much misunderstood by the hon. baronet, who seemed to conceive that, in the motion which he was about to submit to the house, any thing was included but the general question, whether persons accused, tried, and acquitted, should or should not be entitled to compensation for the injury which they sustained. The mode of deciding to whom this compensation should be awarded, or whether it should be given to all indiscriminately (which he should prefer to withholding it from all) would be open for discussion when the bill was brought in. He moved for leave to bring in a bill to provide in certain cases compensation to persons tried and acquitted in a criminal court, for the damages sustained by them, in consequence of having been detained in custody and brought to trial.
The Solicitor Generalrepeated, that in the view which he had of the subject, the evil would preponderate over the good. If the judge refused to give compensation, it would be indicative of the unfavourable opinion which he entertained of the innocence of the person by whom it was demanded; and he would thus be placed in a very invidious situation. Besides, suppose a person were acquitted on an error in the indictment before the merits of his 403 case were investigated, how could the judge then decide on a claim of compensation? As a novelty, this proposition ought to be watched with jealousy. It appeared to him to be impossible to execute it, without much mischief. If the compensation were to be made out of the county rate, it might prove a great discouragement to prosecutions, or in the event of a trial, that circumstance might operate on some minds against the accused. He should vote against the bringing in of the bill.
Sir Samuel Romillydeclared his surprise that his hon. and learned friend should resist the introduction of a bill, of the provisions of which he must necessarily be ignorant. With respect to the proposition being a novelty, it was to be regretted that there had not been more novelties of a similar description.
§ Mr. Leycestersaid a few words, in the course of which he expressed a wish, that his hon. and learned friend would withdraw his opposition to the introduction of the bill.
§ Mr. Crokerentered his protest against being thought favourable to the principle of the bill, because he did not oppose its introduction.
§ Mr. Curwenapproved of the measure.
The Chancellor of the Exchequeralso declared that he would not resist the introduction of the bill, although he wished that the hon. and learned baronet had stated more fully the grounds on which he proposed it, and the provisions which he meant that it should comprise. He was of opinion that the remedy proposed would be more injurious than the evil complained oil
§ Mr. Fullerwas afraid that by the introduction of such complicated arrangements, people would be so puzzled that they would not understand the law at all.
§ Mr. Shaw Lefevreapplauded the humanity of the hon. and learned baronet, but hoped he would pardon him for stating that county stock ought not to be touched except in extreme cases.
§ Mr. W. Smithdefended his hon. and learned friend from the charge of innovation. As to the measure being a novelty, every improvement was a novelty.—Leave was then given to bring in the bill.