CRIMINAL LAW. (Hansard, 9 February 1810)

— Sir S. Romilly
said, that in consequence of the notice he had given in the last and the present sessions, he now rose to bring under the consideration of the House, some parts of the Criminal Law of this country; and whatever might be the effect of the motion with which he should trouble the House, he had the consolation to feel that he was but discharging his duty, and was not without great hopes, that what he had to state on the subject must be productive of public good. If he succeeded, he should congratulate the country, and feel great happiness on his having effected what he conceived to be a considerable amendment in the criminal law. It was not his intention to propose any other alteration than on two subjects; first, the frequency of capital punishments; secondly, what had been thought the policy and expediency of transporting persons for life, or for a certain number of years, to New South Wales. On the present occasion, he only meant to take notice of capital punishments. On a future occasion, he would bring forward the subject of transportation. As to the former he believed there was no country on the face of the earth in which there had been so many different offences according to law to be punished with death as in England. The indiscriminate application of the sentence of death to offences exhibiting very different degrees of turpitude had long been a subject of complaint in this country, but it had still been progressive and increasing. He need only refer to those principles so universally and triumphantly established by Dr. Adam Smith, very few of which had been acted upon, to prove this point. In his opinion, nothing could be more erroneous or more mischievous than that certain punishments should be allotted to particular offences, and that the law so laid down should not be acted on, and peremptorily enforced, 367 He believed that, at this moment, not one out of six or seven who received sentence suffered the punishment annexed by law to their respective offences. It was supposed by some persons that the severity of the law might and ought to be mitigated, by the extension of mercy; but this he thought a very mistaken principle; for he thought no laws should be enacted that were not intended to be enforced. There were, indeed, some acts in our Statute book which one could not hear read without horror, and which it was almost impossible to conceive could have found their way into it. Such, for instance, as the Act which makes it a capital offence in any person, male or female, to be seen in the company of gypsies for the space of a month. That Act had, however, been enforced for nearly a century; and it was lamentable to think, that no less than 13 persons had been executed under its cruel provisions at one assizes. There was the greatest reason to believe that our criminal code had, in ancient times, been not only most sanguinary but as sanguinarily executed. Fortescue, who was Chief Justice of the King's bench and afterwards lord chancellor to Henry VI. in his excellent treatise on absolute and limited monarchy, which was written during his residence in France, for the instruction of prince Edward, the son of that unfortunate monarch, relates, that there were more persons in England yearly executed for highway robberies alone, than in France for all other crimes in seven years. In the reign of Henry VIII. it is stated by Hollinshead and other credible historians, that about 72,000 persons were executed, which was after the rate of about 2,000 a year, during the reign of that monarch. In queen Elizabeth's time the number of executions fell to about 400 a-year. From that period to modern times, there were no data upon which to go. Sir Stephen Theodore Janssen, who was sometime Chamberlain of the City of London, published tables (which are to be found in Mr. Howard's book) of the number of persons convicted and executed in London and Middlesex, from 1749 to 1772: the result, of which went to shew, that of 428 persons convicted, 306 were executed, being a proportion of about three, executions to four oonvictions.—From the year 1756 to 1764, the executions amounted to about one half; and, from 1764 to 1771, to more than a half. This brought the account to the end of 368 the first ten years of his present Majesty's reign. In succeeding periods, a great diminution had taken place in the proportion between the number of convictions and the number of executions. In the London district, from 1801 to 1809, only about one-eighth of the persons convicted were executed. In 1808, there had been convicted S7, and only three executed, which was but one in 29.—He had been thus particular in stating the number convicted, to shew, how little the penal laws had operated in the prevention of crimes. In those offences in which the perpetrators could not expect mercy, such as murders, rapes, arson, &c. it could not be expected any alteration in the law should take place; but stealing privately in a shop or in a dwelling-house, with many other offences of the like class, if the capital part of the punishment was taken off, the law might be made more effectual; for people offended against them now, under a certainty that they would not incur the punishment. In the number of persons whose guilt was supposed to be such as that they should be sent to trial for stealing in dwelling-houses, the House would be astonished to find, that in the persons committed in London and Middlesex, in seven years, there have been executed only as 8 to 1,802; and since that only one had been executed out of 1,872. In the other parts of the kingdom, he believed they were in a proportion of one to upwards of 3,000. So that, on an average of 7,196 persons committed for trial for those offences in the years 1808 and 1809, which the law calls capital offences, only one had been executed. Thus if the question were to be fairly considered, as to what the execution had been, it might be said the law had been unexecuted. In bringing this subject before the House, he hoped he should not, as he had been on former occasions, be represented as a person wishing to be thought possessed of more refined feelings and a greater degree of humanity than his neighbours. He had no such ideas in his mind, but in what he did was actuated as much by a desire for the public good, as for that of individuals; and he was particularly induced to bring this matter before the House, from a conviction in his own mind, that the non-execution of the law in the infliction of those punishments he had alluded to, was the cause of crimes, by holding out a prospect of impunity. The circumstances of the times rendered it im- 369 possible that all the convictions for this species of offence should be carried into effect. Judges, jurors, prosecutors, and the crown, all felt sensible that it was impossible for the statutes in these cases to be carried into effect. This alone was sufficient for all reasonable men, that such inefficient and inapplicable laws ought no longer to remain on the statute book. It frequently happened, that parties were deterred from bringing depredators to punishment, from the severity of the penalty which would be the result of their conviction, and persons were thereby led to the perpetration of crimes by the impunity which was held out to delinquents. As the law was at present put in force, the judges on the circuits, and ministers of the crown in London, decided against whom the sentence of the law should be put in force. This he could not help considering as an unpleasant duty to be committed to any hands. When saying this, however, he was far from meaning to say any thing against the judges of the present day, or those who are gone. He did not recollect any one that had not acted to the best of his judgment according to the intention of the laws, as they stand at present. But if this practice was to be continued, the Legislature should prescribe certain rules to go by in every case. He would not, however venture at present to introduce any great change into our criminal code, but would only suggest, that mere violations of property, unattended with any circumstances of personal violence, or dangerous effects to commerce, ought to be exempted from capital punishments. He had it in view to move for a repeal of the acts of king William 3, which made it a capital felony to steal in a shop to the value of 5s.; the act of queen Anne to a similar effect against stealing to the value of 40s. in a dwelling-house; and the act of George 2, against stealing to the like value from any bark or vessel in any river or navigable canal, or on a wharf, for any of which offences persons found guilty, on conviction were liable to the penalty of death. It was true that the extreme penalty of the law was very rarely put in execution against such offenders; but this was not owing to the leniency of the laws, but to the practice which had of late years been adopted, of suffering such matters to be decided according to the opinion of the judge before whom the matter was tried. This practice of leaving to the discretion of the 370 judge before whom a cause was tried, the sentence which was to be carried into execution, was severely condemned by sir Matthew Hale and lord Bacon. He thought the discretionary power at present granted to the judges highly dangerous, and such as no men would desire to be vested with. In some cases, the nature of a prisoner's defence, when he had attempted to prove his innocence by alibis, which the judge had thought ill established, has gone against him. Sometimes it was held as a matter of aggravation, that the offence was committed in a place where such offences were rare, and therefore that they ought to be checked, or that they were common, and therefore ought to be punished to prevent their multiplication. Many instances might be adduced of the different judgments which had been pronounced upon the same offence by different judges—The hon. and learned gentleman exemplified this by some cases which had fallen under his own observation, as baring happened of late years. Some years ago, on the Norfolk Circuit, two men were indicted for stealing poultry in a poultry-yard. One of them made his escape, the other was tried before lord Loughborough at the assizes, and convicted; but having been till then a person of good character, and this his first offence, lord Loughborough thought these circumstances deserving consideration, and only sentenced him to six months imprisonment. The other man who had fled, hearing this, and desirous to see his family, again returned, and surrendered himself. He was tried before Mr. Justice Gould, who, unfortunately for him, had a different idea from his brother judge, and thinking, as it was a first offence, it would be an example more for the public good to punish him severely, sentenced him to transportation for seven years: so that as the first of these culprits was coming out of his confinement, the other was setting out on his voyage beyond the seas. He alluded also to a similar instance in the case of duelling, in which the opinion of one judge was, that killing a man in a duel was certainly murder in the eye of the law; but that it had so long been alleviated, from various considerations, that it was seldom brought in more than manslaughter, and the jury gave a verdict accordingly. In the other case, the judge was of a different opinion; the verdict was for murder, and the unhappy gentleman was executed.—On the contrary, if 371 this discretion was given by positive law, every man would know what he had to expect. The most able defence of this system was to be found in the works of, the late Dr. Paley, the excellence of whose writings in general had given him a credit that had had a very mischievous effect, from the errors others had imbibed from this particular part of them. He then went into a long investigation of what Dr. Paley had said on this subject, of capital punishment, and urged many arguments in order to refute his doctrine, in which he endeavoured to shew that Dr. Paley took for granted the very thing in dispute. The hon. and learned gent. concluded by moving, "That leave be given to bring in a Bill to repeal so much of the acts of the 10th and 11th of William 3, as takes away the benefit of clergy from persons privately stealing in any shop, warehouse, coach-house or stable, any goods, wares, or merchandizes of the value of five shillings, and for more effectually preventing the crimes of stealing privately in shops, warehouses, coach-houses or stables."

§ Mr. Windham
was somewhat surprised to hear, and particularly from his honourable and learned friend, who had just sat down, such animadversions as he had made upon a writer, whose works had done more for the moral improvement of mankind than perhaps the writings of any other man that had ever existed. The doctrines laid down and established by that wise and able writer might be considered as the principia of moral philosophy. They rested upon a basis which was not to be shaken by fanciful theories or crude speculation. The system of morality contained in Dr. Paley's works was founded on the nature and moral fitness of mankind, and until man should become a different being from what he is at present, that system would continue to be the wisest and the justest for the guidance and government of mankind. The character and authority of that great and good man, stood so justly and eminently high in universal estimation, that he should have thought it unnecessary to say anything in vindication of his writings. But when they were assailed from such a quarter and by such a man as his hon. and learned friend, he would not suffer the attack to pass silently off, or without entering his protest against any attempt to decry them. Having said thus much, not in defence, of Dr. Paley, for that was 372 quite unnecessary, but in order to acquit himself of any implied acquiescence in the attack made upon his principles, he should next proceed to consider the merits of his hon. and learned friend's motion. So far as he attested his object from his speech, it appeared to him that his learned friend wished to take away all discretion in the infliction of punishments. To this principle he could not assent, for he was persuaded that no good and much mischief would result from the entire exclusion of discretion from the laws. But he would readily admit that the discretion if left in existence ought to be on the side of remission and not of aggravation. If his hon. and learned friend's principle were to be adopted, and all discretion taken away, there would then be an end to that most amiable and endearing attribute of majesty, the power of extending mercy. He would grant, however, that the discretion, which, with Dr. Paley, he thought ought to exist somewhere, should be regulated by certain known and fixed rules, and also, that so far as words were capable of doing it, the intention of the legislature on this head should be accurately defined. He feared it was impossible to attain the end which his hon. and learned friend had in view, unless indeed we could reach the perfection of law, by which every offence, which ought to be punished, would be punished, and no act deserving it should escape punishment. As this perfection of law was unattainable, he could not concur with his hon. and learned friend in taking away that discretion in the administration of the laws, which was actually necessary to correct their inevitable imperfection. But if he could not assent to that principle of excluding all discretion, he had equally strong objections to the manner in which his hon. and learned friend proposed to transfer whatever portion of discretion might be suffered to remain from the judges to juries. (No, no, said sir Samuel Romilly.) He had certainty understood his hon. and learned friend to have so stated his principle. (No, no, repeated sir S. Romilly) Well he should not persist in pressing his interpretations of his hon. and learned friend's sentiments against so positsve a denial, but would contend that as a discretion must be left somewhere, it would be much better that it should rest with the judges than with juries. Whatever might be the limits applied to discretion, there must still be a gradation 373 not only of offences, but of guilt in different perpetrators of the same legal offence, and there must necessarily exist in some living tribunal a power to proportion the punishment to the degree of moral guilt. The right hen. Gent. then reverted to the vindication of the doctrines of Dr. Paley, and after stating to them to be impregnable to assault, and unaffected by the arguments of his hon. and learned friend, he concluded by saying, that the best defence he could make for Dr. Paley would be to leave his writings to vindicate themselves, and expressing a hope that gentlemen would consider them attentively before they should decide upon the measures, which his hon. and learned friend proposed for their adoption.

Mr. Herbert
said a few words in support of the motion.

The Solicitor-General
thought that a question involving not only the lives of many individuals, but the rights and properties of all his Majesty's subjects, ought to be considered with the most deliberate attention. His hon. and learned friend might have alluded to him, when he adverted to those who were friendly to existing systems, and adverse to innovations. He was ready to admit, that he was attached to the existing system of law, and extremely jealous in his views of any new theories. Whether the doctrines were derived from Smith, or from Paley, he was not disposed to give up practical benefits for plausible advantages. He considered the proposition as calculated not for its particular object, but to cast discredit and odium on the whole body of the criminal law. The argument of his hon. and learned friend went to cut up by the root all discretion in the judges, because it went to confine that discretion within certain limits, at the same time that it professed to extend the discretion of the jury.

§ Mr. W. Smith
did not think any large portion of the hon. and learned gent.'s speech relevant to the question. He contended, that his hon. and learned friend, so far from trusting to theory, had confined his statements and reasonings to facts; and that what the hon. and learned member had attributed to theory was only an inference from facts. His hon. friend had never had an idea of giving way to wild, extravagant, and visionary schemes of theoretical perfection, in the motion he had made, but had founded both his reasoning and proposition on the evidence of facts. The whole foundation of the mo- 374 tion of his hon. and learned friend, rested upon the inconvenience of the present practice. He did not mean to make any charge against the learned gent. (the Solicitor General) but he was of opinion, that the whole of his argument went against any amelioration whatever.

The Chancellor of the Exchequer
defended the principles and arguments laid down by his hon. and learned friend (the Solicitor General.) He could not concur in the views of his hon. and learned friend the mover. If a discretion were to be left in any quarter, he did not know where it could, more safely be vested than with the judges. He admitted that what had been stated by his learned friend, formed a fair case for the consideration of the House. And, though he should not oppose the motion, he would not pledge himself in either way as to his future opinion upon the measure.

Sir S. Romilly
, in a brief reply in which he did not feel it necessary to touch upon any argument against his motion, complained of the misrepresentations of his sentiments which had proceeded from a right hon. gent. not then in his place,(Mr. Windham). He had never abused the doctrines of Dr. Paley, but on the contrary had stated, that the excellence of his works had given credit to, and caused mischievous effects to be produced by such errors as he had fallen into. The hon. and learned gent, then took notice of the various arguments urged against his motion, and stated that this was only one of the measures which he meant to bring forward for the improvement of the criminal law.

§ Lord G. Grenville
supported the motion.