PRIVATELY STEALING IN SHOPS BILL. (Hansard, 25 February 1818)

§ Sir Samuel Romilly
having moved, that the act of the 10th and 11th of William 3rd should be entered as read, stated, that he rose for the purpose of moving for leave to bring in a bill to repeal so much of the said act as took away the benefit of clergy from persons convicted of privately stealing goods, wares, or merchandize, to the value of 5s. in any coach-house, shop, warehouse, or stable. It would not be necessary for him to trouble the House at any great length on the subject, because their opinion, both in this and in the preceding parliament, had already been strongly expressed. The identical bill for which he was about to-move, had passed the House of Commons four times; twice in that parliament, and twice in its predecessor; and, on the but occasion, he might say unanimously; not a single word having been uttered in opposition to it. It had always, however, been stopped in the other House. Although it was not his intention to detain the House with many observations, he must be permitted to call their attention to the returns which for some days had been on the table, in order to show what the state of the law was on the subject. These returns proved, that the state of the law was such, that it was never carried into effect. From 1805 to 1817, a period of 12 years, 655 persons had been indicted for the offence under consideration. Of these, only 113 had been capitally convicted, and of those 113, not one had been executed; 365 of the 655 had been found guilty by the juries before whom they were tried, of simple larceny, by which the capital part of the charge was taken away. It was evident, therefore, either that these 365 persons had been improperly charged with a capital offence, or that the juries, influenced, no doubt, by feelings of humanity, had, in 365 cases, violated their oaths. It 611 was true, that there were high authorities in justification of a jury thus acting. Mr. Justice Blackstone stated, that a jury who brought in a verdict of guilty to an amount less than the evidence established, with a view to avoid capitally convicting the accused person, might be justified, on the ground that they had a right to take into their consideration the difference in the value of money between the present period and that at which the statute was enacted. This, however, he should always contend, was a practice which had a most immoral tendency, and the temptations to it, he should always maintain, it was the duty of the legislature to remove. He would take the present opportunity of mentioning the state of the law, as derived from the returns on the table, with respect to the act making it capital to steal within a dwelling house to the amount of 40s. Within eight years down to 1816, no less than 1097 persons had been tried for this offencé. Of these, 293 only had been capitally convicted, and not one had been executed. In 1816, 131 more persons had been tried, of whom 49 had been capitally convicted, and one (whose case was accompanied by circumstances of great aggravation) executed. So that, of 1228 individuals tried, 312 only had been capitally convicted (the juries either acquitting the 886, or finding them guilty of stealing to a less amount), and only one person executed! Was this a state of the law which it was desirable to continue? [Hear, heart] It was important, also, that the House should direct their attention to the state of the law as it respected some other capital offences, besides those which he had already specified. The principle on which the law was administered, with respect to the offences he had already specified, was, that the law should generally not be enforced, but be enforced only in particular cases. In another part of the administration of the law this principle was reversed—the law was generally enforced, and was not enforced only in particular cases. He alluded to the offences of fraudulent bankruptcy and forgery. It had been thought wise, by those who were entrusted with the execution of the law, to extend mercy in cases of fraudulent bankruptcy in only one instance, and that was under circumstances so peculiar, that to have withheld pardon, would have been an act of the gro sest injustice. He was sure, that every man, conversant with the bankrupt 612 laws knew, that not a year passed without the occurrence of a great number of fraudulent bankruptcies. Nevertheless, during eighty-five years, there had been but; four capital convictions for this offence; numerous frauds to a great amount having been suffered to escape with complete impunity, because the parties injured saw no alternative between that course and the shedding of blood [Hear, hear!]. The same system was pursued with respect to the crime of forgery. Formerly, pardons for this offence were very rare. Lately, however, the offence had so multiplied, in consequence of the great increase of paper currency (both that of the Bank of England and provincial), that it was impossible to adhere to the system of never pardoning the crime. Still, however, the principle existed, that, in most cases, the law should be enforced; and that in comparatively few (and those under peculiar circumstances of extenuation), it should not be so. A considerable discretion had been vested in the Bank of England on this subject, a discretion which, he believed, had been judiciously and humanely executed, and the consequence of which was, that prosecutions had only taken place in aggravated cases. But the consequence was, that the uncertainty of punishment which this occasioned, destroyed all the advantages that might be supposed to result from the severity with which the law was generally enforced. He was persuaded that the frequent punishment of forgery by death, excited a strong feeling of compassion on the part of the public towards the sufferers. Indeed, some examples of this punishment were extremely shocking. That day se'nnight two women had been executed for forgery, and that very morning two boys, one sixteen and the other seventeen 3'ears of age, would have been executed for the same crime, had it not been for the exertions of a worthy magistrate (Mr. Alderman Wood), and an hon. friend of his (Mr. Bennet), who had detected a conspiracy for the purpose of their seduction, and who had successfully pressed a recommendation for a suspension of their punishment. Was it possible that such spectacles as these could have any other effect than to produce—not obedience to the law—but compassion for the violators of it? The fact was, that forgeries had greatly increased. Nothing could be more certain than that if the sanction of the law was insufficient to pre- 613 vent the crime, it was calculated to produce the worst effects. There was not only the loss of lives, but the deterioration of moral feeling, which such exhibitions were calculated to occasion. It was the duty of the legislature to inculcate respect, and not disregard for human life. This sentiment had been much better expressed by Mr. Burke, in speaking of the punishment of a great many persons for political crimes. "It is certain," says he, "that a great havock among criminals hardens, rather than subdues, the minds of people inclined to the same crimes; and therefore fails of answering its purpose as an example. Men who see their Jives respected and thought of value by others, come to respect that gift of God themselves. To have compassion for one's-self, or to care, more or less, for one's own life, is a lesson to be learned just as every other; and I believe it will be found, that conspiracies have been most common and most desperate, where their punishment has been most extensive and most severe. Besides, the least excess in this way, excites a tenderness in the milder sort of people, which makes them consider government in a harsh and odious light. The sense of justice in men is overloaded and fatigued with a long series of expectations, or with such a carnage at once, as rather resembles a massacre, than a sober expectation of the laws. The laws thus lose their terror in the minds of the wicked, and their reverence in the minds of the virtuous.^*—Before he sat down, he begged leave to say a few words on a public spectacle, which had been made at Newgate, of a wretched man, who, being accused of murder, had destroyed himself. It was stated in the newspapers of that day, that the mangled and bloody corpse had been exhibited in an elevated situation, with a small gallows erected over it, to which was appended the fatal instrument of destruction. Such a horrid exhibition, he was persuaded, was calculated to produce the most mischievous consequences on the men, women, and children by whom it was beheld. There was no authority for it. All that it was justifiable to do with the body of a man on whom a coroner's jury had pronounced a verdict of self-murder, was to bury it without the ^* Thoughts on the approaching Executions. See Burke's Works, Vol. 9, p. 270, Edit. 1812. 614 rites of the church. But it was a grave matter of complaint, that a sheriff or any other person should take upon himself to pronounce an individual under such circumstances guilty of another crime, for which he had not been tried (however evident his guilt might appear), and to cause his exhibition in so hideous a form, and in a way so disgraceful to the character of the country, and so injurious to the morals of the people.—He well remembered when, upon a former occasion, a gentleman, now no more, of the greatest talents, and in words much better than he could use, animadverted in that House on a similar proceeding at the interment of a wretched and criminal suicide. [The hon. and learned gentleman alluded here to the observations of the late Mr. Sheridan,^* on the exposure of the body of Williams, with the fatal maul, &c. with which he murdered the Marrs and Williamsons, a few years back.] He should conclude with moving, "That leave be given to bring in a bill to repeal so much of the act of the 10th and 11th of William 3rd, as relates to stealing privately in any shop, warehouse, coach-house, or stable."

Mr. J. Smith
confirmed all that the hon. and learned gentleman had so eloquently and so feelingly stated, with respect to the numerous instances of fraudulent bankruptcy that yearly occurred. The crime of forgery had also lamentably increased within the last five or six years. Numerous cases of forgery were hushed up from the indisposition of parties to prosecute. The bankers of London had formed a committee for the prosecution of forgeries, in order that no individual pity might interpose between the offence and its punishment, but even this expedient had been found unavailing.

§ Sir. J. Newport
strongly urged his hon. and learned friend to persevere in his efforts to remedy the defects of the law in this respect; and trusted that eventually he would be successful, and that from observing the good which had resulted from the legislative measures already adopted on the recommendation of his hon. and learned friend, the noble and learned individuals in another place would at least hesitate on the expediency of maintaining their principle of abstaining from any changes in the criminal law.