§ Sir Samuel Romilly
hoped, that in again drawing the attention of the House to a part of the general laws of the country, which he had already on a former occasion brought under their notice, he should not be considered guilty of any impropriety. The Bill which he at present meant to introduce was one which had twice passed that House; but had been rejected in the House of Lords. No person had more respect for the quarter from which opposition had come than himself, and if he imagined by again introducing a measure which had been considered impolitic, he should be supposed to act from the least disrespect to that quarter, no person could feel more concern than he would. But from all that he had observed since the last consideration of the subject, he felt he should not be doing his duty if he did not bring the subject under the attention of a new parliament. It would be in the recollection of the House, that in 1810; he had proposed to bring in three Bills; one of which was to repeal the act of king William, which rendered it a capital offence to steal property to the amount of five shillings privately in a shop; another to repeal the act of queen Anne, which pronounced it a capital offence to steal to the value of 40s. in a dwelling-house; and the third, to repeal the act of George 2, rendering it a capital offence to steal property to the same amount, from on board a vessel on a navigable river. These Bills were all passed in 1811, by that House, but were rejected by the Lords. At the present moment he should only move for leave to bring in that one which in the former discussions that took place was considered least objectionable; he alluded to that which related to stealing property of the value of 5s. in a dwelling-house: and the principle upon which he should propose to introduce this Bill was precisely the same as that which he had before stated, namely, the inexpediency of penal laws existing, which were not intended 563 to be executed. This inexpediency was strongly demonstrated by the returns of the criminal courts for London and Middlesex, during the years 1805, 6, 7, 8 and 9. He could not help here expressing his surprise that these returns had not, in compliance with the order of the House, been made to a later period. During these few years it appeared, that the number of individuals committed for this offence, amounted to 188, of whom 18 only had been convicted, and of these not one had been executed. This he trusted would be admitted as a pretty accurate criterion to shew that it was not intended to carry the law into effect against individuals who were found guilty under this statute. The consequence of the law not being executed, as was already stated, was, that where some punishment was deserved, no punishment was at all inflicted, and the offender escaped altogether with impunity. This was an evil which could not exist if the laws were less severe, and a certain but mild, although effective punishment, was substituted. He did not mean to censure the forbearance which thus disarmed the law of its ferocity, but he condemned the retention of a law which was found too cruel for application, and which was, therefore, superseded in almost every instance by a discretionary adoption of that wise and humane principle that no unnecessary suffering, no useless pang ought ever to be inflicted under the sanction of the legislature. Upon this part of the subject he could not more powerfully illustrate his argument than by quoting the sentiment of a man who had once been the ornament of that House, and whose opinions would have weight far greater than belonged to any thing that could fall from so humble an individual as himself. In the Observations upon our Penal Laws, which were published in the last edition of Mr. Burke's works, that distinguished person says, "The question is, whether in a well-constituted commonwealth it is wise to retain laws not put in force? A penal law not ordinarily executed must be deficient in justice or wisdom, or both. But we are told, that we may trust to the operation of manners to relax the law. On the contrary, the laws ought to be always in unison with the manners, and corroborative of them, otherwise the effect of both will be lessened. Our passions ought not to be right, and our reason, of which law is the organ, wrong." The words of this 564 admirable writer were never more applicable than in the present instance: for without some extraordinary aggravation who was there with nerves strong enough to contemplate the execution of this law? Who would say that any one for stealing a ribbon or a piece of lace above the value of five shillings was deserving of death, if not guilty of some other offence? He did not believe that there was a single instance in which the sentence had ever been carried into execution. If there were any instance, it would be very desirable to know under what aggravations the offence had been committed; and it would also be extremely desirable that those aggravations which had been the foundation of the punishment, should in future be made the foundation of the sentence. This would relieve the judges from that responsibility in deciding on the fate of individuals from their own private judgment, which constituted the most painful part of their duty. He was himself satisfied that the effect of the law had been to increase the frequency of the crime. Laws to be effectual must hold out a terror to individuals. What terror could a law carry with it, when it was known that it was never put in force, but remained a dead letter on the statute book? He had, on a former occasion, stated, that no instance had occurred of the law against stealing to the amount of 40s. on navigable canals, having been put in force. An aggravated case of this kind bad lately happened, in which property had been stolen to the amount of some thousand pounds. This case had been cited against the principle of the Bill for repealing that act. But could this be considered as a fair ground of objection? Because stealing to the amount of some thousand pounds was punished with death, was that a reason why stealing to the amount of 40s. should be punished with death? He should, however, have congratulated himself, even if a law had passed to save the lives of those individuals. It was not likely that an instance of so aggravated a nature would soon occur again, and the effect of the execution of the sentence was to make persons dissatisfied with the existing law. The trial had lasted three days, and the jury had the fullest opportunity to consider every circumstance of the case. Yet after their entire conviction of the guilt of the prisoners, they had joined in a unanimous petition to the Prince Regent, to spare the lives of those whom by the 565 law they were bound to condemn. There could not be a stronger instance of the general repugnance in men's minds to the carrying of such laws into effect.
The next Bill he proposed to introduce related to the common law punishment in cases of High Treason. The sentence at present, it was well known, was, that the criminal shall be drawn upon a hurdle to the place of execution, that he shall be hanged by the neck, and being alive shall be cut down, that his entrails shall be taken out of his body, and, he living, the same shall be burnt before his eyes, that his head shall be cut off, his body be divided into four quarters, and head and quarters shall be disposed of at the pleasure of the king. In point of fact this horrible sentence was not now executed, the offender being hanged until dead, and his head being then cut off and exhibited to the spectators, a practice to his mind most exceptionable, when it was considered, that it was calculated to excite only disgust in some, compassion in others, and brutal apathy in a third class. Mr. Justice Blackstone had said, that the practice of embowelling had been discontinued, but it was well worthy of consideration, whether so shocking and ignominious an infliction ought to be left to the discretion of the executioner. The judges had not the power of remitting any part of this prescribed judgment, for in the case of captain Walcot* who was convicted, in the year 1683, of being concerned in the Rye House Plot, the judgment was set aside upon appeal to the House of Lords, 8 William 3, because, although the embowelling and burning had been directed, the words ipso vivente had been omitted. These expressions were pronounced by that high tribunal to be an essential part of the judgment, without which it had no legal validity whatever. It was argued, "that never any judge was known to require that the man's bowels should be burnt while he was alive, and that the same was impossible to be executed." To which it was answered, "that to have bowels cut out while alive was the most severe part of the punishment, and therefore ought not to be omitted: that to pretend that the judgment could not be executed, was to arraign the wisdom and knowledge of all the judges and king's counsel in all reigns: that the strict execution was not impracticable,
* See New Edition of the State Trials, edited by Howell, vol. 9, p. 560.
§ for that tradition said, that Harrison, one of the regicides of Charles the 1st, did mount himself, and give the executioner a box on the ear after his body was opened." Ought then, this punishment to remain to revolt the feelings of mankind, and furnish foreigners with a reproach against our national character? Ought the terrors of a vain threat to be displayed in the hour of the wretched offender's fate, to bereave him of his understanding? Ought the question, whether a man shall perish instantaneously, or by slow, bitter, and protracted torments, to be left to the decision of the executioner? He was ready to admit, that at latter periods no such horrible exhibitions were exhibited, except by accident, and such instances had occurred; but surely it could never be endured, with any degree of patience, that the unfortunate wretch who was doomed to suffer death should be exposed to the most horrid tortures by the mere inattention or carelessness of an executioner, while the judge had no discretion whatever. It was true, that from the increasing humanity of the present times, the dreadful sentence of the law was seldom put into execution: but what other effect could it produce, he would ask, but that of frightening the wretched culprit, when all those barbarities were denounced against him by the judge? Nor was this the only evil; the judges could use no discretion in those cases; they were bound to pronounce the dreadful sentence of the law, while the mitigation of punishment was left to the care, and the aggravation to the negligence, of the executioner. Nor were the additional cruelties, sometimes exercised on those occasions, always to be attributed to negligence. Lord Bacon had recorded, that in the time of queen Elizabeth, they were generally excused by the barbarities practised in other countries; and Camden related, that in Babington's conspiracy, when fourteen individuals, found guilty of high treason in that reign; were left for execution, the seven first who suffered were so cruelly tormented, that "the queen being informed of the severity used in the executions the day before, and detesting such cruelty, gave express orders that these should be used more favourably; and accordingly they were permitted to hang till they were quite dead, before they were cut down and bowel led." He was sorry to say, that in the last rebellion in the year 1746, such was the state of inflammation 567 which men's passions had attained, that a Mr. Townley was executed in the plenitude of those attending disgusting barbarities which he had submitted to the reprobation of the House. After hanging six minutes he was taken down and laid on the block, but still shewing signs of life, the executioner struck him on the breast, and finding this not sufficient, proceeded to cut his throat. He was afterwards embowelled according to the letter of the law. The origin of this common law judgment he had not been able to trace higher than the reign of Edward 1, when David, prince of Wales, and the celebrated Wallace, were executed for having bravely and heroically maintained the interests and defended the independence of their native land. The burning, in cases of petty treason and wichcraft, long remained a disgrace on the statute book; it had been repealed in the one instance, and blessed, he said, be the memory of the man who had procured the abrogation of the dreadful edict. He intended then to move for leave to bring in a Bill, "to alter the punishment of high treason;" and also for another Bill "to take away the corruption of blood as a consequence of attainder of treason or felony." This corruption of blood he begged leave to observe was quite a distinct thing from forfeiture, and was, indeed, a subject on which great diversity of legal opinion had prevailed. It consisted in incapacitating the person attainted of devising his property, it left him in fact without an heir, or, in technical language, disqualified him from tracing a pedigree. The hon. and learned gentleman said he should be ashamed to take up any more of the time of the House, although he could quote several passages of Mr. Justice Blackstone, in favour of his opinion, and concluded with moving, "That leave be given to bring in a Bill to repeal so much of the said Act 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."
The Solicitor General
(sir William Garrow) said he did not propose to enter at large into the question in this early stage; but as he was not in parliament when his hon. and learned friend brought his Bills forward, 568 he hoped the House would indulge him while he made some general observations on the principles by which his hon. and learned friend appeared to be actuated, although he certainly did not mean to oppose his motion. He confessed himself totally unprepared to speak on the subject of punishment in cases of high treason, as he had not understood before that this would form a part of the propositions of his hon. and learned friend, yet he would say that the barbarous punishment so loudly and pathetically complained of, was merely nominal; and as to the corruption of blood, it had been devised to deter men from committing such a heinous crime, for it was well known that individuals whom no human or divine law could keep in bounds, were restrained from crime by the consideration of the fate which awaited their helpless orphans. As to the first proposition of his hon. and learned friend, he certainly agreed, that if the obligation of strictly interpreting and literally enforcing the provision of the criminal law were imposed on the judges, no one man would accept an office which would convert the assizes into shambles. But if discretion must be vested somewhere, where could it be so safely reposed as with the judges of the land? always reserving, too, an appeal to the fountain of mercy—an appeal which, whenever good cause could be shewn in support of it, bad never been made in vain. With respect to the alleged necessity and severity of transportation, he might be permitted to say a few words; and possibly he could not do better than to relate what had come under his own immediate observation. He had at times been called upon to assist the judges at assizes. In one instance a man had been tried for stealing a piece of timber in the night time, and bad been convicted. The sentence to be inflicted by the law was transportation for seven years; but if the judge had been compelled to insist on the infliction of that sentence, under the peculiar circumstances of the case, it must have made his situation miserable indeed. The prisoner was a poor but industrious tailor; every body bore testimony to his good character, even the prosecutor himself was constrained to say that he believed him to be the most industrious, and excellent creature living. When called on for his defence, and to state why he had committed the theft, the poor man said, "It is true that I stole the piece of timber as I was returning home from my 569 club; and I intended to make stools of it for my poor, sick children." Such was the feeling on the judge, after having heard all the heart-rending circumstances, that he instantly and rapidly said to the prisoner—"I hope your appearance here will be of no detriment to you hereafter—it ought not to be—you have suffered much already—go hence, and bless the laws which have enabled the judge to exercise some discretion on your case:—Gaoler, discharge the prisoner!" What would have been the situation of the judge had there been any written scale of law which must be applied to such a case?—Would not any further punishment than this poor man had already received have been too much? This case applied to ninety-nine out of every hundred; yet there were instances in which it was advisable for the security of society to exert the utmost rigour of the law. He could not but lament that the present motion had been brought forward; yet knowing the high and honourable mind of his learned friend, he felt convinced that it had been the result of honest conviction, not from a mere desire of making complaint. He meant not to impute any thing like blame. He lamented that any such motion had been introduced into that House, for there were persons out of doors who might think that there was much ground for complaint. His hon. and learned friend had told them, that he verily believed a recent occurrence would not have taken place, had the Bill proposed by him succeeded, alluding to the conviction and subsequent petitioning in favour of those persons who had stolen a great quantity of silk on the river Thames. He however, differed from his hon. and learned friend in such opinion. He admitted that it would be most horrible if the letter of our penal code were to be abided by in every instance, for there were many cases where to inflict the punishments prescribed by the statutes for the offence would be little short of the most barbarous cruelty. It was now death for stealing on a navigable river to the amount of 40s.; and there were many cases where it would be acting mercifully by society to inflict the punishment to the utmost letter of the law—cases which developed regular plans and deep-laid conspiracies; which formed some of a series of depredations that were carried on daily and nightly to the apparent disregard of all law. When the ringleaders in such violations 570 of good order and law were caught, was it not right that they should be punished as examples, out of mercy to others, to deter them from committing similar offences? Such, then, was the character of the case which had been alluded to. There were to be seen deep-laid plans, and the effects of widely extended corruption. Those who had the care of the property had been corrupted to abandon their duty towards their masters, and the law by which they had been tried had said that the offence was capital. They had been tried before as conscientious and as intelligent a judge as ever sat on the bench (Mr. Baron Thompson), one in whom it might well be said that all could behold the perfection of a judge. After a patient trial, which lasted three days, they had been convicted. On that occasion the assistance was had of all the persons eminent in the law; and the learned Recorder of London, as was customary, had lain a minute report of the case before the sovereign authority. In the privy council every circumstance of so important a case was minutely canvassed; and the anxiety of the royal mind on all occasions to render judgment in mercy was well known. Indeed, the anxiety of the royal mind to save the life of that unfortunate criminal on whom sentence of death had been passed could only be known to those who had witnessed its effects, and it was difficult to communicate even a faint idea of that anxiety. He had heard the late Recorder (Adams), speak with great delight and enthusiasm of the excessive anxiety of his majesty to save the lives of criminals; and for that purpose he would repeatedly question as to the law and the circumstances of the case, and all in favour of the criminal. But what was to be done when a desperate gang were brought before the tribunal of justice to answer to the violated laws of their country? Was there no difference between the measure of their guilt—their capability to do injury to society, and that individual who might have committed a similar offence for the first time from absolute poverty, and without having been in concert with any one? But it was said respecting the robbery on the Thames, that the jury had afterwards petitioned his royal highness the Prince Regent for a mitigation of the punishment—a proof of their notions of its unnecessary severity. Some of the criminals had families—others, wives—and others, fathers or mothers dependent on 571 them for bread. No man bad a higher veneration for the trial by jury than he had, and for those who composed the juries of this country. Few men had seen more of the proceedings in criminal courts than he had; but after thirty years' experience, he had not known six instances where, had he been of the jury, he should not have felt himself bound to determine precisely as the jury had determined. But after they had brought in their verdict, they were, like other men, accessible to pity. The doors of the jurymen might afterwards be crowded by the daughters, the sons, or the mothers of those who had been convicted, praying their interference. They would admit the justice of the conviction—they would acknowledge the offence of their relatives; but they would add—"you cannot wish them to expiate their crimes with their lives—you cannot desire that they should be hanged; think, then, on our feelings for those who, we believe, may be saved if you will petition the Prince Regent. You will not refuse to sign this paper—life is valuable to the meanest being that crawls!" Thank God! few Englishmen could withstand such an appeal as this! The Petition was signed under those circumstances, and was forwarded to the fountain of mercy, where it would always have due effect if a fair case were made out. While assisting the judges at assize, it was once unfortunately his duty to pass sentence of death on six individuals, some of whom he could not leave for execution, and of course no such order was left. But such feeling towards the unhappy individuals could not be communicated to them. The consequence was, when he was about to leave the town the carriage wheels were beset; and there were loud prayers, calling on him "for God's sake not to leave the criminals for execution!" It was ascertained that those who were offering up the petitions so fervently, were actually the prosecutors; and they admitted the offence, and the justice of the sentence, but said that the poor men's lives ought to be spared—for life was valuable. Such had ever been the case, and if the judges were not so to run a race of humanity with the prosecutors, their carriage wheels would be so obstructed that they would be unable to move. It had the happiest effects, it communicated mercy to those who merited it, while the law was to be called into action against greater offenders. The severity of the law was not too much for some 572 cases; for the utmost rigour was sometimes called for out of mercy to society. He should not detain the House longer on the present occasion, as there would be further opportunities to examine the proposed bills of his hon. and learned friend; he had now addressed them for the sole purpose of doing away that prejudicial impression which might be made on the public mind, had the statement gone forth to the world without some observations being made upon it.
§ Mr. Frankland
, alluding to the remark of the hon. and learned mover, that this country was reproached by foreigners for the barbarity of its criminal code, observed, that they expressed such opinion from a knowledge of our criminal law, without knowing how it was administered. Had they seen the manner in which those laws were administered, they never could have expressed such opinion. Adverting to the punishment of the persons convicted of stealing silk on the river Thames, he expressed the extreme regret that he felt at hearing his hon. and learned friend say that the crime was aggravated by the value of the commodity stolen. With respect to the general jurisprudence of the country, every endeavour was made to govern strictly by the law, in spite of the difficulty which existed in doing so; nor were those extraordinary interpositions usual which in despotic countries were habitual. He hoped the new parliament would apply itself diligently to this subject, that it would consider the actual situation of the country, and that it would allow the continuance of that kind of discretion on the part of the judges, from which so much public benefit had hitherto been derived.
§ Sir S. Romilly
, misunderstood by the House in general, as he was sorry to observe he had been by his two honourable and learned friends, who had attributed to him many propositions which were by no means his, but which he considered to be as mischievous as they considered them. He wished particularly that his hon. and learned friend, the Solicitor General, would take the trouble of informing himself more correctly as to his opinions, and he would find that they were as opposite as night and day to those which he had ascribed to him. His hon. and learned friend seemed to imagine that he was not disposed to allow the judges any discretion. Now really if his hon. 573 and learned friend had paid the slightest attention to the proceedings in parliament on this subject; if he had read any of the unauthenticated accounts of those proceedings—if he had examined any of the bills which he had had the honour to introduce into the House, he would have been sensible of the misconception under which he was labouring. He could not help regretting to see every misrepresentation of his sentiments caught at and applauded by those who might have been better informed on the subject. Had he in the slightest degree censured the condemnations of the persons convicted of stealing silk on the river?—quite the reverse. And yet, to what other purpose than to induce it to be believed that he had done so, was the panegyric on Mr. Baron Thompson, in praising whose talents, learning and character, he could vie with his hon. and learned friend, or with any man in that House? He, by no means accused his hon. and learned friend of a wish to misrepresent him. He was sure that he had no such intention; but such was the case. The fact was, that he had adduced the case to show, that although the jurymen had no doubt of the guilt of the criminals, they entertained a doubt of the propriety of a punishment evidently so dissonant to their feelings. In proof of this he would read the Petition which they had addressed to the Regent on the subject.—The hon. and learned gentleman here read a part of the Petition in question.—Reverting to the misconceptions which were entertained of his object, he observed that among them was the absurd supposition that he was desirous of getting rid of all punishments whatever. All that he contended for was, that it was worse than useless to allow punishments to remain on the statute book which were too severe to be enforced. Such a practice led to a relaxation of the law itself. It had been the universal opinion of all wise and reflecting men, that the certainty of a mild punishment was better calculated to repress guilt, than the slight chance of one more severe. The hon. gentleman near him had accused him of holding strange opinions on the subject of capital punishments. He did not, as the hon. gentleman had conceived, set up the humanity of foreigners at the expence of that of the English nation. And with respect to another point, that of taking value into consideration, in estimating the quantum of punishment, he must say if he was wrong in this, 574 that he was so in good company. It was no new doctrine, nor one of his making, but might be found in the works of a very learned man, sir Henry Spelman, who in a celebrated passage had affirmed long since, "that as all other things had grown dearer, the life of man had grown cheaper." And he must still contend, that value was certainly to be considered as an aggravation. What he had stated, was not from any wish to take up the time of the House, but to set the hon. gentlemen right, by whom he had been misrepresented or misunderstood.
The Solicitor General
, in explanation said, that he and his hon. and learned friend agreed as to the propriety of carrying the sentence of the law into effect in the case of the silk stealers last year on the river Thames. He must also allow, that his hon. and learned friend in his clause, left discretion enough to the judges.
§ Mr. Bathurst
, as he was the only individual present of that body whose duty it was to advise the sovereign with respect to the infliction of capital punishments; and as so much had been said of the case of the persons who had been convicted of stealing silk on the Thames, begged permission to offer a few words on the subject. The hon. and learned gentleman had disclaimed any intention of imputing blame to the judge in that case in the discharge of his legal duty; but did he recollect that the opinion of a judge was also always taken with respect to the propriety of enforcing a capital punishment? The fact was, that the case in question was one of systematic depredation on the part of persons connected with the conveyance of a very large portion of the mercantile property of the port of London. Adverting to what his hon. and learned friend, the Solicitor General, had said of the scrutiny which his majesty had always been in the habit of personally instituting into the cases of those unfortunate individuals, whose crimes had subjected them to the sentence of death, he observed, that the same description would have been strictly applicable to the conduct of his royal highness the Prince Regent on similar occasions. As to the address of the jurymen who had tried the silk case, he had no doubt that the hon. and learned gentleman knew the person by whom it had been drawn up. He did not believe the Petition to have been drawn up by the persons by whom it was 575 signed, nor by the hon. and learned gentleman, but by some one of his friends.
§ Sir S. Romilly
, in explanation, warmly, and upon his honour, protested that he knew nothing of the origin of the Petition. One of the jurymen had called at his chambers two or three days before the execution of the sentence of the law, to say that such an address had been sent to the Prince Regent, and to ask if any thing could be done to support it. His reply was, that nothing could be done, but that he had no doubt all proper attention would be paid to the subject. He had forgotten this affair until a day or two ago, when he applied for and obtained a copy of the Petition. He repeated, that he had not the most distant conception by whom the address was written, it was a very ordinary and ungrammatical production, by no means above the level of the powers of composition of a common tradesman.
§ Mr. Bathurst
denied having asserted or insinuated that the hon. and learned gentleman knew any thing about the Petition. He certainly had understood that it was written by a gentleman in habits of intimacy with the hon. and learned gentleman, and who took a similar view of the subject under discussion.
§ Mr. Ryder
was glad to hear the sentiments which he had so often expressed on the question before the House, confirmed by the Solicitor-General, who, it must be allowed by all, had more practical knowledge of the criminal law than any man in parliament. In his opinion the circumstances attendant on the case of the depredators on the river afforded the most ample proof of the advantage of allowing the law to remain on the statute book, for the purpose of being enforced on proper occasions.
§ Leave was then granted to sir S. Romilly to bring in his three Bills.