§ Sir James Mackintosh
rose and addressed the House to the following effect:—
Sir; I now rise, in pursuance of the notice which I gave, to bring before the House a motion for the appointment of a select committee, to consider of so much of the Criminal Laws as relates to Capital Punishment in Felonies; and to report their observations and opinion thereon to the House; and I should have immediately proceeded to explain the grounds and objects of such a motion, which is almost verbatim the same as a resolution entered on the Journals of the House in the year 1770, when authority was dele-*778 gated to a committee for the same purpose—I should have proceeded, I say, to state at once why I think such an inquiry necessary, had it not been for some concessions made by the noble lord last night, which tend much to narrow the grounds of difference between us, and to simplify the question before the House. If I considered the only subject of discussion to be that which exists between the noble lord and myself, it would be reduced to this narrow compass; namely, whether the noble lord's proposal or mine be the more convenient for the conduct of the same inquiry; but as every member in this House is a party to the question, I shall make some preliminary observations on the noble lord's statements.
If I understood the noble lord rightly, he confesses that the growth of crimes and the state of the criminal law in this country call for investigation; he proposes that those subjects shall be investigated by a select committee, which I also admit to be the most expedient course, and he expressly asserts his disposition to make the inquiry as extensive as I wish it to be. As far therefore as the noble lord is concerned, I am relieved from the necessity of proving that an inquiry is necessary; that the appointment of a select committee is the proper course for proceeding to the inquiry; that the inquiry ought to be extensive. I am thus brought to the narrower question—Whether the committee of the noble lord or that which I propose be the more convenient instrument for conducting an inquiry on the special subject to which my motion refers? I shall endeavour briefly to show, that the mode of proceeding proposed by the noble lord, although embracing another and excellent subject of inquiry, must be considered as precluding an inquiry into that part of the criminal law which forms the subject of my motion, for two reasons. The first is, a physical impossibility, and having stated that, I may perhaps dispense with the necessity of showing any other. We have heard from an honourable friend of mine whose authority is the highest that can be resorted to on this subject, that an inquiry into the state of two or three gaols occupied a committee during a whole session. My hon. friend, a magistrate of the city, has stated, that an inquiry into the state of the prisons of the metropolis occupied during a whole session the assiduous committee over which he presided. When, 779 therefore, the noble lord refers to one committee not only the state of the law but the state of gaols, of transportation, and of that little adjunct the Hulks, he refers to it an inquiry which it can never conduct to an end; he proposes, as my hon. friend has said, to institute an investigation which must outlive a parliament. The noble lord has, in fact, acknowledged, by the proposal to subdivide his committee, that it is impossible one committee can inquire into all the subjects which, at his recommendation, have been referred to it; and this impossibility he would, evade by a violation of the usages of the House; as you, Sir, with the authority due to your opinions, have declared the proposition for subdividing a committee to be. I, in accordance with the usages of the House, propose that the House shall itself nominate separate committees; the noble lord, by his un parliamentary and unconstitutional suggestion, proposes that the committee which has been named shall again nominate three committees.—My second objection is, that the noble lord's notice, and the order made by the House yesterday upon it, do not embrace the purpose which I have in view. To prove this, I might content myself with a reference to the words of the instruction under which the noble lord's committee is to proceed. That committee is directed "to inquire into the state and description of gaols and other places of confinement, and into the best method of providing for the reformation as well as for the safe custody and punishment of offenders." Now, what is the plain meaning of those expressions? Are they not the same offenders whose punishment as well as whose reformation and safe custody is contemplated? And does not the instruction thus directly exclude from the consideration of the committee the subject of capital punishments? The matter is too plain to be insisted on; but must not the meaning, on any fair and liberal construction, be taken to be, that the committee is to consider the reformation and safe custody of those offenders of whom imprisonment forms the whole or the greatest part of the punishment? It would be absurd to suppose that the question of capital punishments should be made an inferior branch of the secondary question of imprisonment; and that the great subject of criminal law should skulk into the committee under the cover of one vague and equivocal word.
780 On these grounds, Sir, I have a right to say that there is no comparison as to the convenience or the efficacy of the mode of proceeding proposed by the noble lord, and that which I recommend. Let us now see whether my proposition casts a greater censure on the law of the country than that of the noble lord. Every motion for inquiry assumes that inquiry is necessary—that some evil exists which may be remedied. The motion of the noble lord assumes thus much: mine assumes no more. It cast no reflection on the law or on the magistrates by whom it is administered. With respect to the question, whether the secondary punishments should be inquired into before we dispose of the primary, I have thus much to say. In proposing the present investigation, I have not been guided by my own feelings, nor have I trusted entirely to my own judgment. My steps have been directed and assured by examples set in other parliaments.
The first of these examples is the notable one in 1750, when, in consequence of the alarm created by the increase of some species of crimes, a committee was appointed by the House, "to examine into and consider the state of the laws relating to felonies, and to report to the House their opinion as to the defects of those laws, and as to the propriety of amending or repealing them." What does the noble lord say to this large reference, this ample delegation, this attack on the laws of our ancestors? Was it made in bad times, by men of no note, and of indifferent principles? I will mention the persons of whom the committee was composed. They were, Mr. Pelham, then chancellor of the exchequer, Mr. Pitt, afterwards lord Chatham, Mr. G. Grenville, afterwards lord Grenville, Mr. Lyttleton and Mr. C. Townshend, afterwards secretaries of state, and sir Dudley Ryder, the attorney-general, afterwards chief justice of England. Those great lawyers and statesmen will, at least, not be accused of having been rash theorists, or, according to the new word, ultra-philosophers. But it will be thought remarkable that those great men, who were, in liberality, as superior to some statesmen of the present day, as in practical wisdom they were perhaps not inferior to them, found two sessions of parliament necessary for the inquiry into which they entered. The first resolution to which those eminent and enlightened individuals agreed, was, "that it was rea- 781 sonable to exchange the punishment of death for some other adequate punishment." Such a resolution is a little more general and extensive than that which I shall venture to propose; such a resolution, however, did that committee, vested with the powers which I have already described, recommend to the adoption of the House. One circumstance, not necessarily connected with my present motion, I will take the liberty of mentioning. To that committee the credit is due of having first denounced the poor laws as the nursery of crime—for in this country pauperism and crime have always advanced in parallel lines, and with equal steps. That committee imputed much evil to the divisions among parishes for the maintenance of the poor. That committee too, composed of practical men as it was, made a statement which some practical statesmen of the present day will no doubt condemn as too large, namely, "that the increase of crime was in a great measure to be attributed to the neglect of the education of the children of the poor." A bill was brought in, founded on the resolutions of the committee: it passed this House, but was negatived in the House of Lords. But although it was lost there, it was not opposed by any of the great names of that day—by any of the luminaries of that House. In particular, lord Hardwicke did not oppose the bill, the principal object of which was the substitution of hard labour and imprisonment for the punishment of death.
In 1770, another alarm, occasioned by the increase of a certain species of crime, led to the appointment, on the 27th of November, of another committee of the same kind, of which sir Charles Grenville, sir William Meredith, Mr. Fox, Mr. Serjeant Glynn, sir Charles Bunbury, and others, were members. To that committee the reference was nearly the same as that which I am now proposing; but even that reference I have contracted. That committee was occupied for two years with the branch of the general inquiry which the noble lord proposes to add to the already excessive labours of a committee on another subject. In the second session they brought their report to maturity; and, on that report, a bill was introduced for the repeal of eight or ten statutes, which bill passed the House of Commons without opposition. I do not mean to enter into the minute history of that bill, which was thrown out in the 782 House of Lords. It met with no hostility From the great ornaments of the House of Lords of that day, lord Camden and lord Mansfield; but it was successfully opposed by others, whom I will not name, and whose names will be unknown to posterity.
Sir, it is upon these precedents that I have formed, and that I bring forward my motion. I have shown, that the step I propose to take, accords with the usage of parliament in the best of times, and that if we follow the plan recommended by the noble lord, we cannot effect the purpose which we have in view, without evading or violating the usage of parliament. Accepting, therefore, the noble lord's concession, that a committee ought to be appointed for this investigation, here I might take my stand, and challenge him to drive me from this ground, which, with all the noble lord's talents, he would find some difficulty in doing. But I feel that there is a great difference between the respective situations of the noble lord and myself; and that, although the noble lord last night contented himself with stating the evils which exist, without adverting to the other essential part of any proposal for a parliamentary inquiry, namely, the probability of a remedy, I must take a different course. Although I cannot say that I agree with my hon. friend, who says, that a select committee is not the proper mode of investigating this subject, yet I agree with him that there are two things necessary to justify an investigation, whether by a committee, or in any other manner. The first is, the existence of an evil; the second is, the probability of a remedy. Far, therefore, from treating the sacred fabric reared by our ancestors, more lightly, I approach it more reverentially than does the noble lord. I should not have dared, merely on account of the number of offences, to institute an inquiry into the state of the criminal law, unless, while I saw the defects, I had also within view, not the certainty of a remedy (for that would be too much to assert), but some strong probability, that the law may be rendered more efficient, and a check be given to that which has alarmed all good men—the increase of crimes. While I do what I think it was the bounden duty of the noble lord to have done, I trust I shall not be told that I am a rash speculator, that I am holding out impunity to criminals, or 783 foreshowing what the noble lord is pleased to call "a golden age for crime;" unless the noble lord asserts that sir Dudley Ryder, at the head of the criminal jurisprudence of the country, and Mr. Serjeant Glynn, the recorder of London—an officer that unhappily has the most extensive experience of the administration of the criminal law in the world, were entitled to similar appellations; for both those eminent individuals believed a remedy to the evil in question, to be practicable, and recommended it as necessary; and under any general reprobation which the noble lord may apply to such men, I shall not be ashamed to be included.
I must now mention what my object is not, in order to obviate the misapprehensions of over zealous supporters, and the misrepresentations of desperate opponents. I do not propose to form a new criminal code. Altogether to abolish a system of law, admirable in its principle, interwoven with the habits of the English people, and under which they long and happily lived, is a proposition very remote from my notions of legislation, and would be too extravagant and ridiculous to be for a moment listened to. Neither is it my intention to propose the abolition of the punishment of death. I hold the right of inflicting that punishment to be a part of the right of self-defence with which societies, as well as individuals, are endowed. I hold it to be, like all other punishments, an evil when unnecessary; but, like any other evil, employed to remedy a greater evil, capable of becoming a good. Nor do I wish to take away the right of pardon from the Crown. On the contrary, my object is, to restore to the Crown the practical use of that right, of which the usage of modern times has nearly deprived it. The declaration may appear singular; but I do not aim at realizing any universal principle. My object is, to bring the letter of the law more near to its practice; to make the execution of the law form the majority, and the remission of the law, the minority of the case. I do not expect that a system of law can be formed so graduated, that it can be applied to every case without the intervention of a discretionary power; but I think we have reason to complain of the practice under which the remission of the law forms the rule, and the execution the exception. I hope to see an effect produced on the vicious, by the steady manner in which the laws shall be enforced. The 784 main part of the reform which I should propose, would be to transfer to the Statute Book the improvements which the wisdom of modern times has introduced into the practice of the law. But I must add, that even in the case of some of the practical parts of the law with which the feelings of good men are not in unison, I should propose such a reform as would correct that anomaly. It is one of the greatest evils which can befal a country when the criminal law and the virtuous feeling of the community are in hostility to each other. They cannot be long at variance without injury to one, perhaps to both. One of my objects is, to approximate them; to make good men the anxious supporters of the criminal law, and to restore, if it has been injured, that zealous attachment to the law in general, which, even in the most tempestuous times of our history, has distinguished the people of England among the nations of the world.
Having concluded my general remarks, I will now enter into a few illustrative details. It is not my intention to follow the noble lord in his inquiry into the causes of the increase of crimes. I think that the noble lord's statement last night was, in the main, just and candid. I agree with the noble lord, that it is consolatory to remark, that the crimes in which so rapid an increase has been observable, are not of the blackest die, and of the most ferocious character; that they do not deeply stain and dishonour the ancient moral character of Englishmen; that they are crimes against property alone, and are to be viewed as the result of the distresses, rather than of the depravity of the community. I also firmly believe, that some of the causes of increased crime are temporary. But the noble lord and I, while we agree in this proposition, are thus whimsically situated:—he does not think that some of those causes are temporary, which I conceive to be so; while, on the other hand, he-sets down some as temporary, which I believe to be permanent. As to the increase of forgery for example (which I mention only by way of illustration), I had hoped that when cash payments should be restored, that crime would be diminished. But the noble lord has taken pains to dissipate that allusion, by asserting that the withdrawing of such a mass' of paper from circulation would be attended with no such beneficial conse- 785 quenccs. According to the noble lord, the progress of the country in manufactures and wealth is one of the principal causes of crime. But is our progress in manufactures and wealth to be arrested? Thus it appears that the noble lord must imagine there exists a permanent, and augmenting cause of crime, at once increasing with our prosperity, and undermining it through the morals of the people. According to the noble lord, great cities form another cause of crime. But this cause cannot diminish; for great cities are the natural consequences of manufacturing and commercial greatness. In speaking, however, of the population of London, the noble lord has fallen into an error. Although London is positively larger now than it was in 1700, it is relatively smaller. Although it has since that time become the greatest commercial city in Europe, the capital of an empire whose colonies extend over every quarter of the world, London is not so populous now, with reference to the population of the whole kingdom, as it was in the reign of William the third.
It is principally to those causes of crime, which arise out of errors in policy or legislation that I wish to draw the attention of parliament. Among other subjects, it may be a question whether the laws for the protection of the property called game, have not created a clandestine traffic, highly injurious to the morals of the labouring classes. I am happy to find that that subject is to be taken up by the hon. member for Hertfordshire, who will draw to it the attention which every proposition of his deserves. A smuggling traffic of another species, although attended with nearly the same effects, has been fostered by some of the existing laws relating to the revenue. I would propose no diminution of revenue; for, unfortunately, we can spare none. But there are some taxes which produce no revenue, and which were never intended to produce any, and which are, nevertheless, very detrimental. The cumbrous system of draw backs and protecting duties, adds to the number of smugglers; and the poachers and smugglers reinforce the bands of depredators to which the increase of manufactures is said to have given rise. The state which does not seek to remedy these diseases is guilty of its own destruction. Seeing a right hon. gentleman in his place, on whose attention, subjects connected with the commerce of the country, have 786 a claim, I must express my surprise, that although we are now in the fourth year of a peace, not a single step has been taken to institute an inquiry into the necessity of continuing those endless regulations and prohibitory duties, which, besides their commercial inconveniences, are the nursery of crimes of the most atrocious and sanguinary description. There is one other subject which. I must mention; for, viewing it as I do, it would be unpardonable to omit it. On examining the summary of crimes which has been laid on the table, it appears that it was in 1808 that the great increase of crime took place. The number of crimes since that time has never fallen below the number of that year, although subsequent years have varied among one another. But it is extremely remarkable, and is, indeed, a most serious and alarming fact, that the year 1808 was precisely the period when the great issues of the Bank of England began. As it has been observed, in the Letter to the right hon. member for the university of Oxford (Mr. Peel), a work which has been already mentioned in this House, the author of which, although he has concealed his name, cannot conceal his talents and his singular union of ancient learning with modern science, it was at that time that pauperism and poor-rates increased—a point which was also dwelt upon with great force by a right hon. gentleman in the debate upon the affairs of the Bank of England. Pauperism and crime, as I have before said, go hand in hand. Both were propelled by the immense issues of Bank paper in 1808. By those issues, the value of the one pound note was reduced to fourteen shillings. Every labourer, by he knew not what mysterious power, by causes which he could not discover or comprehend, found his wages diminished at least in the proportion of a third. His comforts were curtailed, and his enjoyments destroyed by the operation of the paper system, which was to him like the workings of a malignant fiend that could be traced only in their effects. Can any one doubt that this diminution of the income of so many individuals, from the highest to the lowest classes of society, was one of the chief sources of the increase of crime?
But the main ground which I take is this—that the criminal law is not so efficacious as it might be, if temperate and prudent alterations were made, and 787 if the letter of the law were more nearly assimilated to the practice, from which it has not merely deviated, but with which it is totally at variance. It is well known that there are two hundred capital felonies en the Statute Book; but it may not be so familiar to the House, that by the returns from London and Middlesex it appears that from 1749 to 1819, a term of seventy years, there are only twenty-five sorts of felonies, for which any individuals have been executed; so that there are a hundred and and seventy-five capital felonies, respecting which, the punishment ordained by statute has not been inflicted. In the thirteen years, since 1805, it appears that there are only thirty descriptions of felonies on which there have been any capital convictions throughout the kingdom of England and Wales; so that there are a hundred and seventy felonies by law, on which not one capital conviction has taken place. This rapidly increasing discordance between the letter and the practice of the criminal law, arose in the best times of our history, and, in my opinion, out of one of its most glorious and happy events. As I take it, the most important consequence of the Revolution of 1688, was the establishment in this country of a parliamentary government. That event, however, has been attended by one inconvenience—the unhappy facility afforded to legislation. Every member of parliament has had it in his power to indulge his whims and caprices on that subject; and if he could not do any thing else, he could create a capital felony. The anecdotes which I have heard of this shameful and injurious facility, I am almost ashamed to repeat. Mr. Burke told me, that on a certain occasion, when he was leaving the House, one of the messengers called him back. Mr. Burke said, that he was going on urgent business. "Oh!" replied the messenger, "it will not keep you a single moment, it is only a felony without benefit of clergy." Mr. Burke also assured me, that although, as may be imagined, from his political career, he was not often entitled to ask favour from the ministry of the day, he was persuaded his interest was at any time good enough to obtain their assent to the creation of a felony without benefit of clergy. This facility of granting an increase of the severity of the law to every proposer, with the most impartial disregard of political considerations: this unfortunate facility arose at a time when 788 the humane feelings of the country were ripening amidst the diffusion of knowledge, and thus brought the final separation between the letter and the practice of the law; for both the government and the nation revolted from the execution of laws which were regarded not as the result of calm deliberation or consummate wisdom, but rather as the fruit of a series of perverse and malignant accidents, impelling the adoption of temporary and shortsighted expedients. The reverence, therefore, generally due to old establishments, cannot belong to such laws. This most singular, and most injurious opposition of the enactments of the legislature, and the enforcement of those enactments, repeatedly attracted the attention of a distinguished individual, who unites in himself every quality that could render him one of the greatest ornaments of this House, and whom, as he is no longer a member, I may be permitted to name, I mean sir William Grant—a man who can never be mentioned by those who know him without the expression of their admiration—a man who is an honour, not merely to the profession to which he has been exalted, but to the age in which he lives—a man who is at once the greatest master of reason and of the power of enforcing it—whose sound judgment is accompanied by the most perspicuous comprehension—whose views, especially on all subjects connected with legislation, or the administration of the law, are directed by the profoundest wisdom—whom no one ever approaches without feeling his superiority, and who only wants the two vices of ostentation and ambition (vices contemned by the retiring simplicity and noble modesty of his nature) to render his high talents and attainments more popularly attractive—that great man (for such he really is) has given us his authority for the assertion, that the principle of the criminal law is diametrically opposite to its practice. On one occasion particularly, when his attention was called to the subject, he declared it to be impossible that both the law and the practice could be right, that the toleration of such discord was an anomaly that ought to be removed; and that, as the law might be brought to an accordance with the practice, but the practice could never be brought to an accordance with the law, the law ought to be altered for a wiser and more humane, system. At another time, the same eminent individual used this remarkable ex- 789 pression, namely, that during the last century, there had been a general confederacy of prosecutors, witnesses, counsel, juries, judges, and the advisers of the Crown, to prevent the execution of the criminal law. Such is the state to which the law has been brought. To prevent it from being carried into effect, all that is great and good—all that is considerate and generous, are found to conspire. Is it fitting that a system should continue, which the whole body of the intelligent community combine to resist, as a disgrace to our nature and nation?
Sir, I feel that I already owe much to the indulgence of the House; and I assure you that I shall be as concise as the circumstances of the case, important as it confessedly is, will allow; and more especially in the details attendant upon it. The noble lord last night dwelt much upon the consequences of a transition from war to peace in the multiplication of crimes; but upon consulting experience, I do not find that the noble lord's position is borne out. It is not true that crimes always diminish during war, or that they always increase after its conculsion. In the Seven Years' War, indeed, crimes augmented, and they decreased after its termination; but they were more numerous in the seven years preceding the American war, and continued to advance not only during those hostilities, but, I am ready to admit, after the restoration of peace. It is, however, quite correct to state, that there was no augmentation of crime which much outrun the progress of population until within about the last twenty, and more especially within the last ten years; and that the augmentation which has taken place is capable of being accounted for without any disparagement of the ancient and peculiar probity of the British character. As to the varieties which have taken place in the administration of the law with respect to the proportion of the executions to the convictions, some of them have certainly been remarkable. Under the various administrations of the supreme office of the law, down to the time of lord Thurlow, the proportion of executions to convictions was for the most part uniform. Lord Rosslyn was the first lord chancellor under whose administration a great diminution of executions, as compared with executions, is to be remarked; and this I must impute, not only to the gentle disposition of that distinguished lawyer, 790 but to the liberality of those principles, which, however unfashionable they may now have become, were entertained by his early connexions. Under lord Rosslyn's administration of the law, the proportion of executions was diminished to one in eight—one in nine—and, finally, as low as one in eleven. But, Sir, to the noble lord's argument grounded on the diminution in the number of executions, I wish to say a few words. If we divide crimes into various sorts, separating the higher from the inferior offences, we shall find, that with respect to the smaller felonies, the proportion of executions has been one in twenty—one in thirty—and, in one year, only one in sixty. In the higher felonies, with the exception of burglary and robbery, which stand on particular circumstances, the law has uniformly been executed. The noble lord's statement, therefore, is applicable only to the higher felonies, in which the law has been generally executed; and by applying it to the whole mass of our criminal code, the noble lord creates a delusion, if he means that to be the basis of a general argument on the subject. The real state of the case is, that in the first or highest class of felonies, the law has been executed in every case; that in the middle class it has sometimes been executed; and that in the lowest class it has not been executed at all. To correct this anomaly, so injurious, and so subversive of the great purposes of criminal jurisprudence, is the object which I have in view.
For the sake of clearness, I will divide the crimes against which our penal code denounces capital punishment into three classes. In the first, I include murder, and murderous offences, or such offences as are likely to lead to murder, such as shooting or stabbing, with a view to the malicious destruction of human life, on which the law is invariably executed; in the second, arson, highway robberies, piracies, and other offences, to the number of nine or ten, which it is not necessary, and which it would be painful to specify, on which, at present, the law is carried into effect in a great many cases. On those two divisions, I will admit, for the present, that it would be unsafe to propose any alteration. Many of the crimes comprehended in them ought to be punished with death; whatever attacks the life or dwelling of man, ought to be punished with death; and I am persuaded 791 that a patient and calm investigation would remove the objections of a number of Well-meaning persons who are of a contrary opinion. But looking from these offences at the head of the criminal code to the other extremity of it, I there find a third class of offences, some connected with frauds of various kinds, but others of the most frivolous and fantastic description, amounting to about a hundred and fifty in number, against which, the punishment of death is denounced by the law, although that punishment is never at present executed (indeed, it would be most absurd to suppose that it could be so), and when executed in one or two instances, in former times, the execution excited the disgust and horror of all good men. There can be no doubt—even the noble lord I apprehend will not dispute—that these capital felonies should be expunged from our Statute Book, as a disgrace to our law, and as creating a false opinion, that it is much more sanguinary than it has ever been rendered in practice. Can any man think, for instance, that such an offence as that of cutting down a hop vine should remain punishable with death?—that such an offence as cutting down a young tree in a gentleman's pleasure ground should remain punishable with death? The Black Act, as it is called, created about twenty-one capital felonies, some of them of the most absurd description. Bearing particular weapons, having the face blacked at night, and being found disguised upon the highroad, were rendered by it capital crimes; so that if a gentleman is going to a masquerade, and is obliged to pass along a highway, he is liable, if detected, to be hanged without benefit of clergy! Who can endure the idea that a man is exposed to the punishment of death for such an offence as cutting the head of a fish-pond? Sir, there are many more capital felonies of a similar nature, which are the relics of barbarous times, and which are disgraceful to the character of a thinking and enlightened people. For such offences, punishments quite adequate, and sufficiently numerous, remain, which the wisdom of the legislature may order to be inflicted. It is undoubtedly true, that for the last seventy years, no capital punishment has been inflicted for such offences—the statutes denouncing them are therefore needless; and I trust I shall never live to see the day when any member of this House will 792 rise and maintain, that a punishment, avowedly needless, ought to be continued.
The debateable ground on this subject is afforded by a sort of middle class of offences, consisting of larcenies, and frauds of a heinous kind, although not accompanied with violence and terror. It is no part of my proposal to take away that discretion which is reposed in the judicial authorities respecting these offences. Nothing in my mind would be more imprudent than to establish an undeviating rule of law—a rule that in many cases would have a more injurious and unjust operation than can easily be imagined. I do not therefore propose in any degree to interfere With the discretion of the judges, in deciding upon any crime to which the punishment of death ought under some circumstances to attach, but to examine whether or not it is convenient, upon the whole view of the subject, that death should remain the punishment expressly directed by the law for offences which, in the administration of the law, are never, even under circumstances of the greatest aggravation, more severely punished than with transportation, either for life or for limited periods. It is impossible to advert to the necessity of reforming this part of the law, without calling to mind the efforts of that highly distinguished and universally lamented individual, by whom the attention of parliament was so often roused to the subject of our penal code. Towards that excellent man I felt all the regard which a friendship of twenty years duration naturally inspired, combined with the respect which his eminently superior understanding irresistibly claimed. But I need not attempt to describe his merits. To them ample justice has been already done by the unanimous voice of the empire, seconded by the opinion of all the good men of all nations, and especially by the eulogium of the hon. member for Bramber, whose kindred virtues and kindred eloquence enable him justly to appreciate the qualities of active philanthropy and profound Wisdom. I trust the House will bear with me if, while touching on this subject, I cannot restrain myself from feebly expressing my admiration of the individual by whose benevolent exertions it has been consecrated. There was, it is well known, an extraordinary degree of original sensibility belonging to the character of my lamented friend, combined with the 793 greatest moral purity and inflexibility of public principle; but yet, with these elements, it is indisputably true, that his conduct as a statesman was always controlled by a sound judgment, duly and deliberately weighing every consideration of legislative expediency and practical policy. This was remarkably shown in his exertions respecting the criminal code. In his endeavours to rescue his country from the disgrace arising out of the character of that code, my hon. and learned friend never indulged in any visionary views. He was at once humane and just, generous and wise. With all that ardour of temperament with which he uncasingly pursued the public good, never was there a reformer more circumspect in his means, more prudent in his end,—and yet all his propositions were opposed. In one thing, however, he succeeded: he redeemed his country from a great disgrace, by putting a stop to that career of improvident and cruel legislation, which, from session to session, was multiplying capital felonies. Sir, while private virtue and public worth are distinguished among men, the memory of sir Samuel Romilly will remain consecrated in the history of humanity. According to the view of my lamented friend, the punishment of death ought not to attach by law to any of those offences for which transportation is a sufficient punishment, and for which, in the ordinary administration of the law by the judges, transportation alone is inflicted. In that view I entirely concur. I will not now enter into any discussion on the doctrine of Dr. Paley with respect to the expediency of investing the judges with the power of inflicting death even for minor offences, where, in consequence of the character of the offence and of the offender, some particular good may appear to be promised from the example of such a punishment on a mischievous individual. The question is, whether the general good derived by society from the existence of such a state of the law is so great as to exceed the evil; and I may venture to express my conviction, that the result of such an inquiry as that which I propose will be to show, that the balance of advantage is decidedly against the continuance of the existing system. The late lord chief justice of the common pleas, whose authority is undoubtedly entitled to great consideration, on discussing this question expressed an opinion that if the punishment of death for certain crimes 794 were inflicted only in one case out of sixty yet that the chance of having to undergo such a punishment must serve to impose an additional terror on the ill-disposed, and so operate to prevent the commission of crime. But I, on the contrary, maintain, that such a terror is not likely to arise out of this mode of administering the law. I am persuaded that a different result must ensue; because this difference in the punishment of the same offence must naturally encourage a calculation in the mind of a person disposed to commit crime, that if he did commit it, it was likely he would escape capital punishment. It must also operate on a malefactor's mind in diminution of the terrors of transportation. Exulting at his escape from the more dreadful infliction, joy and triumph must absorb his faculties, eclipsing and obscuring those apprehensions and regrets with which he would otherwise contemplate the penalty that he was actually doomed to suffer. The feeling of deliverance from the greater danger must alleviate the minor suffering; and such an offender, under such circumstances, is perhaps induced like Cicero, to consider exile as a refuge, rather than as a punishment. In support of this opinion, I will quote the authority of one who, if I cannot describe him as an eminent lawyer, all will agree was a man deeply skilled in human nature, as well as a most active and experienced magistrate—I allude to the celebrated Henry Fielding. In a work published by that gentleman, at the period when the first parliamentary inquiry of this nature was in progrees, intituled "A Treatise on the Causes of Crime," there is this observation: "A single pardon excites a greater degree of hope in the minds of criminals than twenty executions excite of fear;" and hence that able and ingenious writer, whose functions as a magistrate rendered him peculiarly competent to pronounce on the subject forcibly argues, that pardons contribute to the increase of crime. Now that argument I consider to be quite analogous to that which I have just used with reference to the opinion of the late lord chief justice of the Common Pleas, because the chance of escape from death in either case is but too apt to dislodge all thought about the inferior punishment of transportation.
But another most important consideration is, the effect which the existing system of law has in deterring the injured from commencing prosecutions, and wit- 795 nesses from coming forward with their evidence in support of such prosecutions. The chances of escape are thus multiplied by a system which discourages the prosecutor and increases the temptations of the offender. The better part of mankind, in those grave and reflecting moments which the prosecution for a capital offence must always bring with it to their minds, frequently shrink from the task imposed on them. The indisposition of men to prosecute while the laws continue so severe is matter of public notoriety. This has been evinced in various cases. It is not long since an act of George 2nd, for preserving bleaching grounds from depredation was repealed on the proposition of sir Samuel Romilly, backed by a petition from the proprietors of those grounds, who expressed their unwillingness to prosecute while the law continued so severe, and who represented that by the impunity thus given to offenders their property was left comparatively unprotected. An eminent city banker has also been very recently heard to declare in this House, that bankers frequently declined to prosecute for the forgery of their notes in consequence of the law which denounced the punishment of death against such an offence. It is notorious that the concealment of a bankrupt's effects is very seldom prosecuted, because the law pronounces that to be a capital offence. It is undoubtedly however a great crime, and would not be allowed to enjoy such comparative impunity were the law less severe; and this therefore affords an additional proof of the encouragement which the severity of the law holds out to offenders. There is another strong fact on this subject to which I may refer as illustrating the general impression respecting the criminal law. I mean the act which was passed in 1812, by which all the acts which created offences against the revenue laws were consolidated, and by which the acts imposing capital punishment, not specified in that consolidation were of course repealed. That act I understand was introduced at the instance of certain officers of the revenue. And why, but because, from the excessive severity of the revenue laws, the collectors of the revenue themselves found that they were utterly inefficient. But I have the highest official authority to sustain my view of the criminal code. I have the authority of the late chief baron of the Exchequer, sir Archibald Macdonald, who when he held the office of attorney-ge- 796 neral, which office he discharged with so much honour to himself and advantage to the country, distinctly expressed his concurrence in the opinion of lord Bacon, that great penalties deadened the force of the laws.
The House will still bear in mind that I do not call for the abolition of the punishment of death; but only for its abolition in those cases in which it is very rarely and ought never to be carried into effect. In those cases I propose to institute other, milder, but more invariable punishments. I am of opinion that the punishment of death ought to be inflicted in certain cases, and especially for murder. The courts of law should, in such cases, be armed with the awful authority of taking away the life of an offender; that thus it may be seen that in this country that may be done by justice which may not be done by power. But in order to render that authority fully impressive, I am convinced that the punishment of death should be abolished where inferior punishments are not only applicable, but usually applied. Nothing, indeed, can in my opinion be more injurious than the frequency with which the sentence of death is pronounced from the judgment seat, with all the solemnities prescribed on such an occasion, when it is evident, even to those against whom the punishment is denounced, that it will never be carried into effect. The solemn annunciation of the judgment of the law is most useful in inspiring awe, where it is known that it will be executed, but where the contrary is the fact, it becomes a mere formality, an idle mockery, degrading to the character of the law itself as well as to the dignity of those by whom it is administered; and wantonly subtracting from those terrors which form the chief guard and protection of society, because without them neither life nor property can be secure. How can those terrors be sustained while murder and burglary are levelled with offences deserving and receiving a much slighter punishment? But the law is deprived of its beneficent energy, and society of its needful defence, whenever that awful authority the jurisdiction of life and death, is disarmed of its terrors. Sir William Grant, in a report of one of his speeches which I have seen, observes, that the great utility of the punishment of death consists in the horror which it is naturally calculated to excite against the criminal; 797 and that all penal laws ought to be in unison with the public feeling; for that when they are not so, and especially when they are too severe, the influence of example is lost, sympathy being excited towards the criminal, while horror prevails against the law. Such indeed was the impression of sir William Blackstone, of Mr. Fox, and of Mr. Pitt, as well as of sir William Grant. It is also the opinion of lord Grenville expressed in a speech from that nobleman, as distinguished for forcible reasoning, profound wisdom, and magnificent eloquence, as any speech I have ever heard on any subject. It must undoubtedly happen even in the best regulated conditions of society, that the laws will be sometimes at variance with the opinions and feelings of good men. But that, in a country like Great Britain, they should remain permanently in a state not less inconsistent with obvious policy than with the sentiments of all the enlightened and respectable classes of the community, is indeed scarcely credible. I should not be an advocate for the repeal of any law because it happened to be in opposition to temporary prejudices; but I object to the laws to which I have alluded, because they are inconsistent with the deliberate and permanent opinion of the public. In all nations an agreement between the laws and the general feeling of those who are subject to them is essential to their efficacy. But this agreement becomes of unspeakable importance in a country in which the charge of executing the laws is committed, in a great measure, to the people themselves. I know not how to contemplate without serious apprehension the consequences that may attend the prolongation of a system like the present. I have no wish whatever to throw any impediment in the way of our civil government. God forbid! It is my anxious desire to remove, before they become insuperable, the impediments that are already in the way of our civil government. My object is to make the laws popular, to reconcile public opinion to their enactments, and thus to redeem their character. It is to render their execution easy, their terror overwhelming, their efficacy complete, that I implore the House to give to the subject their most grave consideration. I beg leave to remind them, that sir William Blackstone, in his classical work on the laws of England, when urging the propriety of guarding the laws against public prejudice in 798 order that they may become effective, points out the indispensable necessity under which juries frequently labour of committing what he calls "pious perjuries;" in estimating the value of stolen property. But why should juries be impelled, by the excessive severity of the laws, to commit such perjuries? This is another lamentable evil springing from the system. Resorted to as this practice is by one of the wisest institutions of the country, it so clearly indicates the public feeling, that to every wise statesman it must afford an instructive lesson; and he who overlooks such verdicts must be a most inattentive or injudicious observer, negligent of the most material interests of his country, for he neglects its morality. The just and faithful administration of the law, in all its branches, is the great bond of society; the point at which authority and obedience meet most nearly. If those who hold the reins of government, instead of attempting a remedy, content themselves with vain lamentations at the growth of crime—if they refuse to conform the laws to the opinions and dispositions of the public—that growth must continue to spread a just alarm.
With respect to petitions upon this subject, I have reason to believe that, in a few days, many petitions from a body of men intimately connected with the administration of the criminal law—I mean the magistracy of the country—will be presented, praying for a revision of that law. Among that body I understand that but little difference of opinion prevails, and that when their petitions shall be presented, they will be found subscribed by many of the most respectable individuals in the empire as to moral character, enlightened talent, and general consideration. I did not, however, think it right to postpone my motion for an inquiry so important until those petitions should be actually on the table. I should, indeed, have felt extreme regret if the consideration of this question had been preceded by petitions drawn up and agreed to at popular and tumultuary assemblies. No one can be more unwilling than myself to see any proceeding that can in the slightest degree interfere with the calm, deliberate, and dignified consideration of parliament, more especially on a subject of this nature. The discussion of such a question ought not to be influenced by any thing like clamour. The petition from the city of London, however, ought 799 to be considered in another light, and is entitled to peculiar attention. It proceeds from magistrates accustomed to administer justice in a populous metropolis, and who necessarily possess very great experience. It proceeds from a body of most respectable traders—men peculiarly exposed to those depredations against which capital punishment is denounced. An assembly so composed is one of weight and dignity; and its representations on this subject are entitled to the greater deference, inasmuch as the results of its experience appear to be in direct opposition to its strongest prejudices. The first impulse of men whose property is attacked, is to destroy those by whom the attack is made. But the enlightened traders of London perceive, that the weapon of destruction which our penal code affords, is ineffective for the purpose of steady protection—therefore, disabusing themselves of vulgar prejudice, they call for the revision of that code. Another petition has been presented to the House which I cannot pass over without notice. I allude to the petition from that highly meritorious and exemplary body of men the Quakers. That petition has, I think, been rather hardly dealt by; and has been described as containing a very extravagant recommendation; although the prayer with which it concludes is merely for such a change in the criminal law as may be consistent with the ends of justice. The body of the petition certainly deviates into a speculation as to the future existence of same happier condition of society, in which mutual good-will may render severe punishments unnecessary; but this is a speculation in which, however unsanctioned by experience, virtuous and philosophical men have in all ages indulged themselves, and have felt consoled by it for the evils by which they have been surrounded. The hope thus expressed, has exposed these respectable petitioners to be treated with levity; but they are much too enlightened not to know that with such questions statesmen and lawgivers, whose arrangements and regulations must be limited by the actual state and the necessary wants of a community, have no concern. And while I make these remarks I cannot but request the House to recollect what description of people it is to whom I apply them,—a people who alone of all the population of the kingdom send neither paupers to your parishes, nor criminals to your gaols,—a people who 800 think a spirit of benevolence an adequate security to mankind (a spirit which certainly wants but the possibility of its being universal to constitute the perfection of our nature),—a people who have ever been foremost in undertaking and promoting every great and good work, a people who were among the first to engage in the abolition of the slave trade, and who, by their firm yet modest perseverance, paved the way for the accomplishment of that incalculable benefit to humanity. Recollecting all this, and recollecting the channel through which this petition was presented to the House, I consider it to be entitled to any thing but disrespect. The aid of such a body must always be a source of encouragement to those who are aiming at any amelioration of the condition of human beings; and on this occasion it inspires me, not only with perfect confidence in the goodness of my cause, but with the greatest hopes of its success. I will now, Sir, conclude by moving, "That a Select Committee be appointed to consider of so much of the Criminal Laws as relates to Capital Punishments in Felonies, and to report their observations and opinion of the same, from time to time, to the House."
observed, that in rising to answer a speech of such length and variety as that of the hon. and learned gentleman, it was not his intention to take up much time in stating the impressions which it had left upon his mind. He should not, however, do justice to his own feelings, which he was sure accorded with those of the House, if he did not express his sense of the temperate and candid manner in which the question had been brought forward. It had been argued, too, with a precision which was to be expected from the general talents and legal knowledge of the hon. and learned mover. His own views did not differ to any great extent from those of the hon. and learned gentleman, but he was apprehensive that the motion and speech of the hon. and learned gentleman, although they could have no such effect in that House, might be construed out of doors as casting a reproach on the jurisprudence of the country, and ascribing to if a sanguinary character; although he knew that the objections, as stated by the hon. and learned gentleman applied to the principle of legislating in a particular form, and not to the administrative practice which existed. It was with much satis- 801 faction he had heard the intention of forming a new criminal code explicitly disclaimed, and that it was not in the hon. and learned gentleman's contemplation to propose the suppression of capital punishments altogether. It must be evident, in the circumstances of this country, that without this painful sacrifice to justice, there could be no sufficient protection for property, liberty, or life. He was also gratified to find, that no opinion was entertained that any interference with the exercise of mercy was expedient. The administration of law could never be attended with equal justice, without the free use of that prerogative. The true question therefore on which he was at issue with the hon. and learned gentleman, did not relate to the course which might ultimately be taken, or the degree to which our penal enactments might be eventually retrenched, but to that species of proceeding which would be most likely to lead to a wise and salutary result. He fully admitted that two important precedents had been adduced, and that they were the more deserving of consideration from the circumstance of the illustrious character of the persons by whom they were established. But still he would contend that those very precedents themselves furnished arguments against the imitation of them rather than in favour of their adoption. And first with respect to the precedent of 1750. Even on the narrow issue which the hon. and learned gentleman had assigned to his own question, it appeared that, with all the able and illustrious supporters who had given their assistance to the subject, the consideration of the criminal laws at that period was not concluded in one session, but occupied the House for two entire sessions. And what was the result? A bill had been introduced, which passed through the House of Commons; but the hon. and learned gentleman had omitted to state that that bill had been thrown out by the House of Lords. If the hon. and learned gentleman's proposition for repressing a number of capital punishments was not accompanied by some measure by which a secondary punishment should be substituted for that of death, which punishment should produce the same effect of impressing offenders with a salutary terror, the House would certainly regard it as a proposition founded entirely on an abstract view of the laws; and although at that distance of 802 time it might be in vain to inquire into the precise cause of the failure of the measure proposed in 1750, it was not difficult to imagine that it was that very abstract view which caused the failure of the measure alluded to. The hon. and learned gentleman seemed resolutely disposed to prefer an abstract to a practical view of this important subject. But what was the result of that course of proceedings in 1770? The hon. and learned gentleman had not shown that it led to any permanent amelioration of our criminal code. In fact, if the hon. and learned gentleman had meant to disprove all that he had antecedently said, he could not have adopted a better or more effective mode than by referring to the precedents of 1750 and 1770. The hon. and learned gentleman must permit him to say, that modern times might have furnished him with more effective precedents. If that House meant to do any thing in this most grave and most important business, if they meant to devise, seriously, a secondary punishment to be substituted for death, he conjured them to banish every thing like abstract and visionary reasoning. The hon. and learned gentleman had mentioned a late hon. and learned member, who brought to this discussion legal talents, to be rivalled only by the humanity of his intentions, and the zeal with which he had pushed his exertions in the cause. But of all the measure which that hon. and learned individual projected, only one ever received the sanction of the other House. Had those bills devised that species of secondary punishment to which he (lord C.) had alluded, and whose operation might produce effects equally salutary with the terror occasioned by the infliction of the capital penalty, it was most probable that few of them would have miscarried in the upper House. He was most anxious that the House should proceed on practical, not on abstract principles; that they should not separate the theory from the practice of the law. He could not concur with the hon. and learned gentleman in some of his reasonings; such as that the present state of the law tended to encourage offences, and that the House ought to accelerate their proceedings, from a fear of that censure which he thought likely to be the result of their proceedings. The late sir S. Romilly submitted a bill to that House for the purpose of taking away the punishment of 803 death of stealing privately from the person and; to make it a transportable offence what result ensued? Was it such as to recommend the hasty adoption of any similar proposition? He would beg leave to refer to the returns. The bill passed into a law 4 years ago. As far as he had been able, he had examined the progress of that offence for the last 10 years, which was the best criterion at all times of the effect of legislation; and he found that, so far from its having diminished in frequency, the increase was enormous. By the returns for the last ten years, it appeared, that the number of persons charged with and convicted of that crime had increased in a greater ratio than the number of those charged with and convicted of any other crime. There Were charged with that crime, in 1810, 136; in 1811, 194; in 1812, 224; in 1813, 272; in 1814, 811; in 1815, 277; in 1816, 402; in 1817, 507; and in 1818, 531. There were convicted of that crime, in 1810, 64; in 1811, 83; in 1812, 78; in 1813, 135; in 1814, 167; in 1815, 131; in 1816, 294; in 1817, 257; and in 1818, 262. It appeared, therefore, that the new measure had had no practical result; but that the particular crime in question had increased in the period of the last ten years, in; the proportion of between four and five to one. The argument therefore that the operation of laws which denounced the heaviest punishment was to increase the crime they were intended to prevent, was not founded on fact. This, he admitted, was not to induce parliament not to entertain inquiry into the state of the criminal law, for the purpose of repealing the more severe parts of it, but it would tend to show the House how cautiously they should proceed, and how necessary it was to take a full, fair, and comprehensive view of the question. The hon. and learned gentleman had asked, when he solicited the House to adopt his committee for an inquiry into particular punishments and the increase of crimes, what business had it to inquire into the subjects of transportation and secondary punishments? It would have every business in the world to do so. If it did not do that, it would do nothing; unless the inquiry proposed by the hon. and learned gentleman were to be extended to the nature of the secondary punishments, it must be unsatisfactory; for of the 13,000 criminals with which our gaols were annually crowded, no less than 10,000 were 804 of the class to which those punishments were applicable. If the legislature were to take away the terror of the capital punishment, and substitute no secondary penalty, the influence of which might deter offenders, the whole object of law would be defeated, and the repression of crime would become more precarious than ever. Such an experiment would in the present state of the country be attended, with peculiar danger. With respect to the penalties attached to burglary, robbery, &c. the hon. and learned gentleman bad not called in question the law on hose subjects; viz. that the punishment might be modified accordingly as the circumstances were of an aggravated or extenuated character: he had thought it better to leave the manner of its execution to that spirit of mercy and mitigation which distinguished the administration of a code of laws necessarily severe. The hon. and learned gentleman had stated one circumstance which it was necessary to notice; he had informed the House that by the present laws, no less than 200 felonies were capital offences. He really did not think there had been so many; but would offer a few words on that point which might not be deemed irrelevant. With respect to those which the hon. and learned member had described to be of a fantastical character, he could only say, that many of the laws on our statute books were obsolete, but why they were so it was not material now to inquire. The hon. and learned gentleman had particularized one statute, called "the Black Act,' which related to "offences committed in black faces," as being a masquerade statute; but the fact was, that from the local circumstances attached to the commission of those depredations which that law went to Curb, no character could be more descriptive of the deperadoes who Were the objects of its enactments than that involved in the title of the act. All those statutes might certainly be fit subjects of inquiry at some time or another, but surely their absolute and immediate removal from the statute book was not a matter of important and urgent necessity. If the suppression of crime were the real object of the House, surely the consideration of obsolete statutes ought not to occupy their immediate attention. With respect to the nature of other offences alluded to by the hon. and learned gentleman such as lerceny embezzlement, &c. their consideration, was un- 805 doubtedly of the first importance. But if ever there was a necessity of connecting the discussion of the offence with that of the punishment, it existed in regard to those cases. Surely it was most important to know the history of crime, before they proceeded to legislate upon its penalties; and those two objects, he must strenuously contend, ought to be confided to the same committee. If the hon. and learned gentleman's arguments were as conclusive as they appeared to him to be otherwise, each branch of the question, the practical and the abstract, ought to go to a committee; but even in that case the former ought to precede the latter; the substitute should be considered before the alteration. It had been stated that he had not entered into a formal view or disclosure of his own intentions on the subject. He had however said as much upon it as he was prepared to do; and had expressed his readiness to entertain any proposition compatible with what he sincerely believed to be necessary for the protection of life and property in the country. He certainly was not desirous of seeing any change in the primary laws of the kingdom, unless that change operated to the improvement of morals, and to the diminution of crime. But he contended that the whole inquiry should be carried on by the same persons, and not dispersed among various hands, the result of which would necessarily be partial and limited. Undoubtedly it was desirable that the inquiry should go on as fast as possible; but it was still more desirable that it should be a complete inquiry. The fault of many similar investigations had been, that gentlemen were more anxious to receive the reports of committees, than to embrace the general relations of the subject, and arrive at a satisfactory result. Every body was anxious for an inquiry into this subject; but he was solicitous for such an inquiry, as, while it achieved that which was its direct object, should also protect property and life by a regulation of minor punishments. Nor did he think such an inquiry must necessarily be one of very extensive duration. He could not persuade himself that the inquiries of the committee appointed last night would occupy a great extent of time. He did not think they ought to charge themselves, for instance, with an examination into the classification and management of prisoners, and into the state of every gaol in the kingdom, but on the contrary, he thought 806 they should look at the subject in a larger point of view, for the purpose of establishing general principles to be acted on either by the crown or by the legislature, in the appointment of persons whose habits rendered them better qualified for the requisite investigation. So with respect to the secondary punishments, no immediate parliamentary inquiry appeared to him to be necessary, either as to the hulks, or to Botany Bay. The House ought to look at the question largely, as statesmen, and endeavour to ascertain what alteration in the general character of those punishments, was likely to be beneficial. He saw no reason why all this might not be satisfactorily accomplished in the present, or at farthest, in the next session. There might be matter for minute inquiry, subsequently to the great consideration of the general question, but separate committees to examine such subjects might easily be appointed, and work the question by their co-operation into as enlarged a state as might be desirable. The House would decide between the two courses. He felt it his duty to move the previous question on the motion made by the hon. and learned gentleman, not from any wish to oppose him, not from any disposition to throw obstacles in the way of inquiry, not to impede the progress of what he felt was a common cause, but because he conceived the adoption of the hon. and learned gentleman's views would tend to separate the inquiry into the state of the criminal law, from the inquiry into the nature of punsihments, thus defeating the united consideration of such important and concomitant topics; and because therefore he thought the appointment of the committee of last night was the step most calculated to lead to advantageous results.
§ Mr. Speaker
—As one of the Committee on Prisons, which was nominated yesterday, and as one who feels a sincere desire, that the Committee may discharge its duty to this House, and to the country, I will state why I think that the subject of Criminal Laws ought not to devolve upon it, and the reason is very simple: it is, because I am sure, that all the zeal of its members—all their ability, and all their time will be wanting to execute those duties which have already been entrusted to them; and think the House will concur in this opinion, when it is recollected how much has been already 807 committed to their care. First, the prisons of England, Scotland, and Ireland. Next, the system by which those prisons are to be improved. Next, the police of Great Britain. Next, transportation. Next, the hulks in the river Thames, and lastly, as the noble lord has just declared, a colony at the Antipodes, to be entirely new modelled. And, as if these subjects, foreign and domestic, practical and theoretical, were too small to engage the comprehensive consideration of this committee, comes forward the noble lord, and proposes to throw in the whole penal law. Persuaded, that without the penal law, there is more than sufficient, but with the penal law there will be more than can be accomplished, I shall endeavour to persuade the House to detach from their inquiries, this distinct but most important subject; and I shall do it by showing, that one source of crime, and a most prolific one, is our criminal laws. I take up those lamentable details of the increase of criminality in this country—the parliamentary returns. I say that offenders are multiplied, and property is insecure, because your law is vicious in principle, and productive of crime in its consequences. I state this distinctly, and expressly addressing myself to the right hon. gentleman opposite, because that gentleman did, on a late occasion, more than hint his vengeance against the man who should presume to hold up this (as he called it), the front of the constitution to reproach. I am not disposed to under-rate the weight with which his indignation will fall on one so little competent to resist or to retort it; but, neither this nor any other consideration, shall induce me to abstain from exposing what I can call by no milder term, than the utter impolicy of our criminal code. But, before I proceed to this, I must say something in reply to two observations of the noble lord. First he states, that out of the 14,000 annual offenders, 10,000 will fall under the notice of the committee proposed by my hon. and learned friend. Now it is clear, that none can so fall, but those who are capitally convicted, and the number of these is 1,302. I need not, therefore, expend much of the time of the House, in convincing the noble lord, that 10,000 cannot be a part, when 1,300 is the total. Another observation of the noble lord, and to which I perceive he attaches considerable importance, is that this increase of crime originating in the war, is transitory and circumstantial; I 808 maintain, that we have reason to apprehend, that it will prove actual and permanent. I do not deny that war has its operation. One of the evils of a state of warfare is, that it gives to those who are engaged in it, habits of violence, depredation, and even cruelty, which ceasing to be employed against the enemies, are directed against the subjects and citizens of the state. Still, this is by no means an. explanation of the increase of criminality which has taken place. From the only records we possess, I take the ten years past, and compare them with ten years similarly circumstanced, at the distance of half a century, each containing seven years of war, and three of peace; and it appears, that in the former period, the number of capital convictions in London and Middlesex were 329, and in the latter 1,402.
To prove the impolicy of our criminal code, I first state, that it is at variance with the old law of England; that our ancestors confined their capital denunciations to a few crimes of great enormity, that we extend ours to a vast multitude and variety of offences. To prove the first part of this, it is only necessary to refer to lord Coke, who says in his third Institute: "pleas of the crown and criminal causes are most of them by act of parliament, and some by common law." And another high legal authority states, that treasons and sacrilege were the only crimes punishable with death by the common law. To prove the second part, viz. that our law displays no such abstinence, I refer to the advocate of that system, Dr. Paley, who says, "that the law of England, by the number of statutes creating capital offences, sweeps into the net every crime which, under any possible circumstances, may meet the punishment of death;" and, indeed, as he confesses in the next page, some crimes, which, by no possible contingency, by no conceivable peculiarity of aggravation, can merit that penalty. Here, then are two systems precisely the reverse of each other. And this will appear more clear, by observing the march of criminal law in this Country. Judge Blackstone states, that one of the most remarkable circumstances to be observed in the Saxon laws is, the extreme paucity of capital punishments. Descending then from common law to statute law, I hold in my hand a list of those offences, which at this moment are capital, in number 223; the first in the reign of 809 Edward 3rd, and the last in the present century, comprising a period of about 450 years; of these 223, six were enacted in the 150 years from the reign of Edward 3rd, to the death of Henry 7th. In the next 150 years, from the accession of Henry 8th, to the accession of Charles 2nd, thirty were enacted; and in the last 150 years from the accession of Charles 2nd, to the present time, 187.
Or to put it in another point of view,
Or to make it still stronger—more crimes have been denounced as capital in the reign of his present majesty, than in the reigns of the Plantagenets, the Tudors, and the Stuarts combined.
In the reigns of the Plantagenets 4 In the reigns of the Tudors 27 In the reigns of the Stuarts 36 In the reigns of the House of Brunswick 156
I think it important to mention these facts, as showing the tenderness with which our ancestors proceeded in capital enactments, as contrasted with the celerity which has characterised their descendants, with that readiness in the legislature, to gratify every petitioner, friendly or hostile, with "a felony without benefit of clergy." Success in all other applications to government, in the time of Mr. Burke, as my hon. and learned friend, has so ludicrously stated, was problematical, but no man retired in disappointment, who only craved the indulgence of a "felony without benefit of clergy."—Important, as proving, that a remarkable tenderness for human life, is the spirit of the British constitution, often violated, indeed, by its monarchs; but still its true spirit, if that spirit may be collected from the declarations and acts of our ancestors. But, important also, as furnishing an answer to a species of calumny, miscalled argument, which has been directed against the proposer of this motion, and those who approve the revision of the penal law, as if it were our purpose to substitute modern invention for the ancient practice of the law of England. Now, I would ask;—this very new theory—this untried innovation—this wild speculation of yesterday; what does it prove to be?—the old law of England! And this ancient venerable fabric, which we wish to overturn.—What is this? an edifice, which has sprung up under our own eyes, to which additions have been made in the memory of every man who hears me, and of which, one third is only so antique as the reign 810 of George 3rd, and nine-tenths posterior to the accession of the Brunswick family. It is a fact, and a very melancholy fact, that there are persons living in this kingdom, at whose birth, the criminal code contained less than sixty capital offences, and who, in the short space permitted to the life of man, have seen that number quadrupled,—who have seen an act pass, making offences capital by the dozen and by the score; and what is worse, bundling up together offences, trivial and atrocious, some nothing short of murder in malignity of intention, and others nothing beyond a civil trespass; I say, bundling this ill sorted and incongruous package, and stamping upon it, "death without benefit of clergy." For instance, within the memory of man, a famous act passed making seventeen offences capital at once, of which one was, wilfully and maliciously shooting at a man; and another was, destroying a rabbit in a warren: of which one was setting fire to a house, exposing its owner and his family to the flames; and another, breaking down the head of a fish-pond. Here they are, and thirteen others, in one paragraph. But you will observe, that this strange annexation of equal penalty, for most unequal offences; this conjunction of acts, between which the difference is as broad and palpable as between night and day; this strange and extravagant generalization, is by no means the product of ancient wisdom, but a creation of our own times.
This brings me to the second point, the first being, you will observe, not a proof, but the strongest of all presumptions against our system, namely, that it is at variance with the old law of England. The next is, that it is at variance with the principles of natural justice. It is a principle which nature has implanted in the heart of man, and which no human law can eradicate—that, as there are distinctions in guilt, so there should be distinctions in the penalties annexed to it. The voice of nature, or to go higher, His word, who created nature, has denounced death against the murderer! "Whoso sheddeth man's blood, by man shall his blood be shed." Here is clear, explicit authority, and here the public recognise an act of natural justice; but if on the same scaffold, and exposed to the same extremity, stands a wretch, who has committed a crime actually not atrocious, and comparatively most venial; wherein the divine law will you find the warrant? 811 and where in the feelings of mankind, will you find the approval of his execution? Public feeling always speaks on these occasions. I state not what I imagine, but what has happened in this city very lately. When the murderer is brought forth, there is approbation; silent indeed, because, miscreant as he is, his distress forbids the insult of a triumph, but still, approbation marked and expressive. But when another is produced on a future day, but on the same scaffold, who has been convicted of some lesser offence, forgery for instance, he is received in another manner, and commiserated with other feelings; and when the drop falls, which violently expels him from life, a cry spontaneously rises of—murder! They charge the law with murder. And, as I think justly, temperately, and truly—they express my feelings at least, for I deny the justice of that warrant—I impeach the equity of that sentence; I acknowledge, that legislators may determine upon property and possessions, and ten thousand other circumstances; but life is sacred, and may not be invaded, without the express permission of Him who gave it; and to send an imperishable soul, unprepared and unrepentant, to a state, perhaps of endless misery, for forging a one pound bank note, is, I confess, monstrous in my eyes.
I have not, however, the presumption to suppose, that, in opinions so novel, or, more properly, so antiquated, I shall win the concurrence of many gentlemen. I shall, therefore, content myself with observing, briefly, that affixing the same penalty, and that penalty utter destruction to the murderer, to the forger, to the destroyer of a hop-bine, or of the fence attached to a turnpike-gate, is unjust. Is it politic?This is the main point; and I could wish that this question were to be determined by its policy alone. I know that some doubt always hangs on, an argument deduced from abstract principles of natural justice; and, in my own case, I must confess, if any gentleman could arise, and say, Your notion, that what is unjust cannot be wise, is specious enough; but facts are against you; and then, in illustration of his sentiments, could take up this return of offenders committed, and triumphantly say, observe now, as our criminal code has increased, criminal acts have decreased; observe, for instance, how few Bank forgeries have been committed in the last year. If he could appeal to our prisons, 812 and elicit an argument from their superfluity of room, and their scarcity of inhabitants; if any man could pretend that we have been sheltered from fraud and robbery, by the wholesome rigour of our laws; if, in fact, in answer to my argument against the justice of the system, such demonstrations of its policy could be adduced, I confess I have not that confidence in any abstract principle which would induce me to uphold my opinion; but, unfortunately, an appeal to each of these sources of information only proves that the accumulation of criminal law is paralleled by as rapid an accumulation of criminality. As to its policy, then, permit me to state the line of proof I mean to adopt. The subject is a wide one. I have endeavoared to consider it in all its branches; but it is not my intention to distress the courtesy of the House by leading it through that extensive circuit. Some part of my case I must abandon. I mean, therefore, to abstain from reasoning and discussion, and to confine myself principally to facts, leaving the House to draw the inferences. What I mean to prove is, that the severity of the law has raised up a power in this country, which annuls and abrogates that law, by favouring the escape of the criminal, and that this hostile force is public opinion.
To form a due estimate of this, gentlemen must remember the peculiar construction of the law of England. In other countries the whole process of prosecution devolves on the Crown. One set of officers paid by the Crown, arrest the offenders; another set of officers search out the evidence; a third conduct the prosecution; and a fourth pronounce their verdict: and, as in all this, there is little interference of the public, so there is little necessity for consulting their opinions. But all this is reversed in England. Our whole system of criminal jurisprudence proceeds on the presumption that the law will be aided by the public. Wanting a spy in every house, and a crowd of police officers in every street, and a public prosecutor ever ready to undertake all labour and all expense, the presumption is that these deficiencies will be supplied by the active, co-operation of the people. I do, not complain of this system; I highly applaud it; it displays the true, spirit of liberty, and bespeaks the mutual confidence existing between the legislature and the community: yet, wise, as it is, it is strangely deranged, when the public re- 813 fuse to co-operate. Now, I maintain, that we are arrived at this crisis: the public deny their assistance, and are combined not for the law, but against it.
The public, as prosecutors, feel reluctant at the escape of a criminal, but still more reluctant to be instrumental to his death. Sense of duty, of interests, desire of vengeance, are found to be but feeble motives, when contrasted with the dread they entertain of clouding their days, and burthening their conscience with the blood of a fellow-creature. The public, as witnesses, have an irresistible bias in favour of the prisoner; it is so easy to suppress a few facts, and to take off the edge of others; the presence of the criminal, whose life hangs upon your interpretation of a fact, and the supposed injustice of the law, plead so powerfully in his favour, that to expect that witnesses will tell the truth, and the whole truth, is to expect more than human nature will ever perform. The same may be said of juries, of judges too, and of the advisers of the Crown. Do I join in the cry against these latter gentlemen as if they were sanguinary, and thirsting for human blood? It would ill become one who has, upon more than one occasion, ventured to intrude upon them, to state some minute fact, or some weak argument, which might tend to the advantage of a condemned felon; and who has ever found them not indifferent, not thirsting for human blood, but most anxiously desirous to discover any fact, however inconsiderable, which might possibly tend to justify a mitigation of the sentence. I willingly bear this merited testimony; but what does it amount to? That we, the people of England, who pride ourselves upon nothing so much as that we are govern not by will, but by law; that wearer protected from the rigour of our own law by the interference of the ministers of the Crown. I say, then, that while the law presumes upon the voluntary service of the community, and casts the major part of the burthen upon it, the severity of the law enlists every man in favour of the prisoner. I judge by the conversation, and I judge by the conduct of prosecutors, witnesses, and jurymen, that they are desirous to facilitate the escape of the guilty; and will not the experience of every gentleman bear me out, when I maintain that a secret pleasure is felt, nay, Very commonly, an avowed satisfaction is expressed, at the acquittal of a§814 man notoriously guilty: no matter by what quirk of law—no matter by what misinterpretation of facts—no matter by what collusive suppression of evidence—no matter by what violation of oath—the prisoner escapes, and the whole Court rejoice: judge, counsel, prosecutors, witnesses, spectators, all rejoice that the law has been defrauded of its victim. Let all this be considered as mere assertion; I ask no more. Now, I will prove it. First, as to prosecutors. Every man, who knows any thing of mercantile affairs, knows how many fraudulent bankruptcies take place. It was proved before a committee of this House, that there are persons in London who make a trade of proving false debts; it was stated by very high authority, that the majority of commissions of bankruptcies may be considered as conspiracies to defraud the fair creditor. Here, then, is a sufficiency of crime: how is it punished? Not at all I hold in my hand an account of the persons committed to prison for the last seven years, and I cannot find the name of one fraudulent bankrupt; and what is the cause of such unmerited impunity? Your committee say, "because the law is so severe, and so repugnant to the common sentiment of mankind, that it becomes totally inefficient in its operation." Here, then, is a crime not difficult of proof, of extreme injury to trade when committed, committed daily, and brought home to the severity of the law. Am I not justified in saying, that the preposterous rigour of that law has screened ten thousand delinquents from public justice? The law, by declaring that this crime shall be punished with death, has declared that it shall not be punished at all. The bow has been bent till it has snapped asunder. That act, which was intended to prevent the evil, has proved an act of indemnity and free pardon to the fraudulent bankrupt, and an act of ruin and destruction to many a fair trader. I hope that gentlemen, who are sure that severity does not produce crime, will do me the favour to afford me an answer to this fact.
Again, every mercantile man, during the past year, has heard of numerous instances of forgery on individuals; in fact, whoever has mixed at all with society, or has read the public papers, cannot fail to recollect some acts of this description. How happens it, that a crime so frequent in the city, is so rarely discussed at the Old Bailey? I hold in my hand a statement of the number of persons committed to 815 prision in London and Middlesex during the last year, and it appears that two only have been sent there for forgery on individuals. How happens it, I repeat, that the crime is so frequent, and the committals for it so rare? Facts shall explain the difficulty. A friend of mine in Lombard-street received a visit from a gentleman, who told him, that he had just detected a forgery on himself, had seized the culprit, and had released him, because he could not endure the idea of having him executed. He had hardly left my friend's counting-house before another gentleman entered; he had also that day discovered a forgery. He said, the author of it is, to my certain knowledge, in this street, and there he may remain, for I will not hang him. I mention these two gentlemen with the more confidence, because they stand in the very first rank of mercantile men: perhaps there are not in Europe ten men with the same extent of pecuniary transactions, and, therefore, there are not ten men so deeply interested in the detection and punishment of forgery; nevertheless, both the culprits are at this moment at liberty, and would as certainly have been at this moment in gaol, if the penalty of their offence had been any thing short of death.
Again, a friend of mine, a country banker, had a forgery committed On him. Now, this is a very serious thing to a country banker; it impairs his credit: he, therefore, ostensibly took every measure to bring the delinquent to justice. A customer of his, who had received considerable favours from him, came to him, and said, I have now an opportunity of repaying all your kindness to me; I have discovered the retreat of the forger: come with me, and he shall be in your custody in twenty-four hours. After some deliberation, my friend replied, You have, indeed, an opportunity of repaying all my supposed liberality to you; and you will do so, by concealing from me, and from every other human being, the retreat of this villain; for, to tell you the truth, I will not hang him. A short time ago, I began to make a collection of facts of this kind. The first person to whom I applied mentioned one; the next four; the next between forty and fifty, that had come within his own recognizance; I then applied to my honourable friend, who sits in the seat above, the member for London, who assures me, that during the two years in which he was chief magistrate of the 816 metropolis, the cases of this sort which came before him were innumerable. Now, I put it to the House, whether the facts that I have stated, the rarity of prosecutions, in cases of forgery on individuals, and the utter impunity of tens of thousands of fraudulent bankrupts, do not warrant this conclusion—that, in nine cases out of ten, where a crime not very heinous in itself is capital by law, prosecutors abstain from prosecuting? I shall have occasion again to revert to this supposition, and, therefore, I am anxious that the House should now determine whether they do or do not concur with me. With respect to witnesses, the facts I have collected are not very striking. I, indeed, did know a case, in which a 'witness took care to absent himself; and the reason he gave me was, that he was not disposed to assist in hanging a man. In another case, the witnesses in a body went down to the court; in a body they retired to a private room, and there they remained, no one knowing their hiding-place, till the prisoner was acquitted. But I will not fatigue the House with any further facts relative to witnesses, but hasten to a more important subject.
With respect to juries, cardinal Wolsey observed, of the juries of his day, that they were so addicted to blood, that they would find Abel guilty of the murder of Cain. If such was then their character, it has since undergone a very great, and surely a very salutary change; for, at this moment, a capital conviction, excepting in cases of atrocity, is seldom procured without difficulty. For instance: two men were tried at the Old Bailey last autumn—the evidence was demonstration. To say that no one doubted their guilt, is to speak too favourably of the prisoners: no one entertained the shadow of a suspicion of the possibility of their innocence; they were, however, acquitted: but, when the. next day a man was indicted for the same offence, but on the minor charge, the jury upon the same, on as nearly as possible the same evidence, found him guilty without leaving the box.
A man, whose memory must have been recalled to us by the discussion of this night, and to whom so feeling a tribute has been paid, by my hon. and learned friend, and whose fate, a subject of unaffected grief to all who can love private worth and honour public merit, is doubly deplorable to those, who want his aid in this cause; for to him may be applied the 817 simple inscription placed by the Carthaginians on the tomb of Hannibal: "We lament him at all times, but vehemently do we desire him in the day of battle."—This gentleman mentioned the case of a jury who found, by their verdict, that two bills of exchange, value 10l. each, and eight Bank notes, value 10l. each, were worth but thirty-nine shillings; that is, they declare, as they hope for salvation, so help them God, that, to the best of their belief, one hundred is less than two. This fact speaks conviction. Is it not evident, that a conflict has been excited in their minds between the sanctity of an oath, and the superior sacredness of human life, and that the latter has prevailed? I refer the House to the following case given by Mr. Grose. A man swore, that going to bed in his own house, he wound up his watch, put it into his breeches pocket, put his breeches under his pillow, and went to sleep. During the night, a thief got privately into the house, stole the watch, and was detected in pawning it. The jury found the thief, a very young lad, guilty of stealing, but not in the dwelling-house. To make common sense of this verdict, as the commentator observes, the breeches must have conveyed themselves out of the house, and their motive must have been a desire to be robbed. Having succeeded in a wish so natural to a pair of breeches, they must have returned, re-entered the room, And replaced themselves under the pillow; and there their master found them the next morning, without once suspecting their midnight truancy.
Let me ask one plain question: is it not better that the law should be altered, than that it should be subjected to these evasions, which would be laughable enough, if merriment were not repressed by the recollection of the perjury they include and perjury too, where perjury inflicts an incurable wound; for I say, not that the integrity of juries is a point of importance, but that it is the point on which all depends, the only security we hold for our possessions, our liberties, our lives. And gentlemen will agree with me, that this is too delicate to be sported with, when they recollect the condition of England at that time, when juries lost their integrity, I refer to the reign of Charles 2d. First, the conscience of juries was in the keeping of the popular party: hence the Pepish plot, detestable as it was then called by its advocates and de- 818 testable as it has ever been called by all posterity. Soon after, the conscience of juries was under the direction of the Crown, and hence the death of Sidney and of Russell—Surely, it is a matter of religious awe that the Deity should be thus formally invoked to witness wilful perjuries; and, descending from this guilt to its consequences, it is no common cause for political alarm, and well worthy the consideration of a British parliament, that the faith of our guardians should be exposed to temptation; and that temptation the more insidious, because its origin is a sense of justice and a love of mercy.
It may, however, be contended, that the facts to which I have referred prove that juries have, in some instances, given verdicts contrary to their oath; but not that this has been done to any great extent. I maintain, that this reluctance to convict is general, and I can prove it by documents on your table. During last session, a paper was presented to this House, stating the number of persons committed to prison, and the number of these who were acquitted and convicted. By separating those offences which are capital from those otherwise punishable, I find this very curious result—In capital cases, one man in every three is acquitted; in cases not capital, only one man in every five is acquitted: that is, there is one acquittal for two convictions in capital cases, and one acquittal for four convictions in cases not capital. In short, therefore, the proportion of acquittals in capital cases is nearly double what it is in cases not capital. I take another instance. I hold in my hand a list of persons prosecuted for forgery on the Bank, during the last twenty-one years. The law during that time has undergone a great change; during the first seven years, almost all tried were tried on the capital charge; during the last seven years, three-fourths have been indicted for the minor offence. The law, then, being substantially mitigated, if my principles be true, it ought to follow, that with the decrease of the punishment, there is an increase of certainty of conviction. And so it is. During the first seven years, one in three were acquitted; during the last seven years, one in eight. But, without taking advantage of this illustration, I revert to the fact deducible from the returns of all persons committed in England and Wales; viz. that the pro- 819 babilities of conviction are twice as great incases not capital as in cases which are by law punishable with death.
Now for the application of these facts. "You will observe, that every criminal has certain natural chances of escape. He commits a felony; that felony may never be discovered; if discovered) he may not be suspected as its author; if suspected, proof may be wanting; proof being supplied, he may not be apprehended. These are natural chances in favour of the criminal: they must be calculated at something; but, whether that something be two to one, or two. hundred to one, in favour of the criminal, is a matter of indifference to my argument. I will put them at that to which I think they most nearly approach, viz. five to one. But I have proved that it is highly probable that the reluctance to prosecute augments his natural chances of escape ten to one; that is, what was by nature five to one, becomes fifty to one. I have proved, that the reluctance of juries to convict in capital cases, doubles these chances; so we have arrived at one hundred to one in favour of the criminal that he will not be capitally convicted. Being capitally convicted, what are his chances against execution? Government has saved me the trouble of calculating this. It appears, that if a criminal be capitally convicted, it is ten to one he will not be executed; so that we are arrived at this—it is five to one he will not; be detected, fifty to one he will not be prosecuted, one hundred to one he will not be convicted, and one thousand to one that the sentence pronounced by the law will never be carried into effect.
Gentlemen will naturally startle at so extraordinary a result. I confess, I did so myself, when I first considered the subject. I distrusted premises which led to so strange a conclusion. I thought they proved too much: nevertheless that conclusion is true, and true to a mathematical demonstration.
In the majority of criminal cases, we know the whole numbers of persons imprisoned, convicted, and executed; but we do not know the whole numbers of crimes of that description committed. Evidently, therefore, wanting this material fact, we cannot arrive at any certain comparison. But there is one species of capital offence in, this, country in which we have the precise number of crimes perpetrated, as well as the number of per- 820 sons prosecuted, convicted, and executed It appears by the return presented to this House last year, that in the year 1817, 31,180 forged Bank notes were presented for payment at the Bank. They must then have been issued; that is, 31,180 capital offences were committed. By another paper it appears that 142 persons were prosecuted; that 62 were capitally convicted, and 14 executed. That is, it is 212 to 1 that a man committing this species of capital offence will not be prosecuted; 500 to 1 he will not be capitally convicted, and 2,220 to 1 he will not be executed. I entreat the attention of the House to this; it is indisputable; the premises are parliamentary documents, and the deduction is true if there be truth in arithmetic.
And, Sir, as the fact is certain, so is it of the highest importance. It has been a matter of wonder to many wise men, that the people of England, the most moral and religious people on the face of the globe, are at the same time the nation in which crime appears to be the most prevalent. I put ray finger en the fact I have stated, and I say here is in some measure the cause; it is the doubtfulness of punishment, it is the extreme uncertainty of the law, generated by its extreme severity, which operates as a powerful temptation and inducement to crime.
Observe again, Sir, how this fact unveils the weakness of an argument strongly insisted on by a high authority in this country. It has been said, "Tell a youth who meditates an act of criminality, that for such an offence he may be transported, this motive will have a certain effect; but, tell him that he may be hanged, and if not hanged, he may still be transported, and the effect will be greater, because the dread of transportation remaining in one case as strong as in the other, you have in the latter all the benefit of that apprehension which arises from the possibility of death." The error of this argument is the assumption of a fact, viz. that you gain this benefit, and pay no equivalent for it. Now, I have proved that you do pay a price, and a very: heavy one—a vast augmentation of the chances of escape.
Now, let us consider for a moment, the effect of this increased uncertainty on the mind of the criminal. I know it is very difficult to explore the recesses of the human heart, and to detect the motives which 821 operate on human conduct; especially, it is difficult, with a class of persons who stand peculiar and distinct from the rest of mankind—who have rejected the law of reason and virtue, and have yielded themselves implicitly to the guidance of passion and of impulse. Yet, creatures of excess as they are, they have a character, as they have a language, of their own; and the most marked feature of their character is a love of hazard. They live upon risks; their daily bread is procured by adventure; their whole life is one continued game of hazard. Every exploit of robbing has its chances; a spirit of gambling leads them to crime; a spirit of gambling accompanies them in it. It is notorious to all who know any thing of the haunts of depredators, that what is acquired by one series of chances at one time, furnishes a supply for a different series of chances at another; that what is a gang of pickpockets now, is a club of gamblers presently; and cards and dice consume what is obtained by fraud or rapine. Is it expedient that this lust for play should be encouraged by our penal code?—and encouraged it surely is. The punishment, indeed, is nominally greater, but the chances of escape are also greater; that is, more of hazard, more of adventure, more of speculation, are introduced, and our criminal law becomes a species of inverted lottery, in which (calling detection a blank, and escape a prize) the prizes are much augmented, and the blanks much diminished in number.
It has been asserted, that executions produce a great effect, but that the effect cannot be calculated precisely. I meet this by direct contradiction, contending, that the effect is small, and may be calculated; it may be calculated by any one who will expose his feelings to the pain of witnessing a public execution. There he will see how little solemnity, and how little seriousness, accompany this awful exercise of power. Sir, it is notorious, that executions very rarely take place without being the occasion on which new crimes are committed. At the very last, a pickpocket was apprehended. On being asked by the chaplain of Newgate, how he could venture on such a deed at such a time? he very frankly replied, that executions were the best harvest that he and his associates had; for, "when the eyes of the spectators are fixed above, their pockets below ate unprotected."
But what is the effect within the prison? This may be calculated more nicely. And 822 here I refer to the testimony of a lady, who has been so happily called by my hon. friend, the member for Shrewsbury, the glory and opprobrium of her country. My near relationship to that amiable and benevolent female, and still more the certain knowledge I possess, that her ardent desire is to do the greatest possible good with the least possible personal celebrity, forbid me to become her panegyrist; but I must state the result of her experience. She told me, that in her early visits to Newgate, she had formed no opinion upon capital punishments; but that her intercourse with the prisoners had led to a decided conviction, on her part, of their evil tendency. The language always is, she stated, as soon as an execution is over, "Well, we cannot pity him now, he is gone to heaven!" For their persuasion is, that this act of severity obliterates and atones for every former misdeed; and thus the minds of the prisoners are hardened by the reflection that the pain is short', and the supposed reward is permanent.
But what is the effect on the minds of the accomplices without? This may be calculated. A boy was lately ordered for execution, for snatching a watch from a person at a funeral in Whitechapel. Two friends of mine, conceiving that he was innocent of the alleged crime, had the courage to go to the house frequented by the gang to which he belonged; there my friends found, two days previous to the execution of their comrade, the gang assembled, engaged in drinking, gaming, and licentious conversation. The lad was executed on the Tuesday; on the Wednesday night, my friends had the boldness to revisit this haunt of villany, for the purpose of endeavouring to persuade some of these wretched beings to abandon their evil course of life; again the gang were assembled. After the lapse of a week, these gentlemen again returned on their mission of true humanity; the gang were, assembled, engaged as before in gaming and drunkenness, and in plotting future robberies. This appears at least to have been the case; for two days after, thirteen of their number were apprehended, for crimes committed subsequent to the execution of their companion. And what became of the remainder of the gang? Another funeral, largely attended, took place in Whitechapel, and there the remainder of the band were recognized by a person who knew them well, actively engaged in their abandoned vocation. Such was the 823 effect of this severe example.—Again, an Irishman was executed in this city, for selling forged bank-notes, and his body was delivered to his wife and friends. One cannot but feel some pity for those, who, at that period of dreariness and desolation which always succeeds an awful tragedy, were paying the last duties to their departed associate. And, indeed, they deserved the compassion of this House; for this desolate widow, and these mourning friends, were seized in the room, and round the bed on which the breathless body was laid, they were seized in the act of selling forged bank-notes!
In conclusion, we are charged with theoretical innovation. Do we test our cause on any theoretical principles? We defend ourselves by saying, that the principles we maintain, are principles, of the old; law of England. We appeal to experience, to the practical observations of practical men, to the merchant, and the manufacturer; they tell you, that the severity which was intended to protect their property, exposes that property to invasion. This was the language of the linen bleachers of your own committee on bankrupts—this is the language of those petitions which crowd your table, of the corporation of London—men, who can hardly be charged with fine-wrought fanciful theory—men who have never been suspected of a taste for the delusions of ingenious speculation—men, if there be such in the world, of solid, practical experience. Nay, I appeal to the experience of every gentleman who bears me, has he not seen, or has he not found, in the management of his children, of his household, of his servants, of his labourers, that a system of severe threats and lax execution, is as inoperative, in fact, as it is contemptible in principle. Yet, this system is the law of England at this moment. The principle, on which it is founded, is, that severe denunciations are more effectual in the repression of crime, than penalties milder but more certain. The principle of law may be false, and if it be false, we are reaping the harvest of that error. The gradual but progressive in. crease of crime, the annual addition of some thousands to our catalogue of criminals, the insecurity of property, and the demoralization of the people, are the fruits of that fatal error. There lives not a man in this kingdom, who is not interested in ascertaining Whether the principle be true or false. I do not pretend to say, the facts I have stated demonstrate the fal- 824 lacy of that principle; but I do say, that they make it very questionable. And, surely, it is the part of a wise nation to subject a questionable principle of such infinite importance, to that criterion, which alone can detect error, and discover truth—I mean the criterion of inquiry, of investigation, of experience—the criterion of facts. I hope, at least, I have convinced the House, that something must be done. Crime has so increased, as to render property of all kinds insecure. The whole country cry out for a remedy. Something must be done! We must go forward in our system of terror; and, finding death insufficient, we must recall the rack, the screw, the crucifix, and the other implements of torture! But who would approve of this? Or we may do what I consider much more barbarous; we may carry our present law into execution, and consign every man, against whom the law denounces death, to the hands of the executioner. Happily, however, the execution of the law depends on the co-operation of the public, and the public would not bear-such an audacious violation of natural justice. I know enough of the people of England, to know, that the declaration of such an intention would alienate every prosecutor—every witness—every juryman in the kingdom. I question, whether you would find men to fill the bench, to assist in such illegal massacres. And, if any man of honour and humanity did take that office, he would insensibly find, that his duty Was to exercise his ingenuity in thwarting the law, and evading its denunciations. But there is another expedient: we may submit the whole subject to calm, deliberate, dispassionate investigation. But how? by a committee, already overburdened with arduous duties, or a committee directing to this single subject, its undistracted attention. The House most this night, choose between these. For my self, because I prefer an immediate to a remote inquiry; because I am sure, that it is beyond the capacity, physical and intellectual, of any committee, to grapple with subjects so various and so vast, as those which are consigned to the gaol-committee; because I am sure, that any delay in the revision of our criminal law, is a national calamity;—I shall vote for the motion of my hon. and learned friend.
was of opinion, that the 'only difference which subsisted between the motion of his hon. and learned friend and that of the noble lord, was the mode 825 in which the inquiry ought to be carried on. He had heard with pleasure the excellent speech made by his hon. and learned friend, which contained so much information; and he considered, although it might be presumptuous in him to entertain any doubts, that a few of the conclusions which he had drawn were not correct. The course pursued by his hon. and learned friend was, to direct the House to an investigation of some of the principal points in the criminal law, but not to an examination of the whole. The country could not properly be said to have a criminal code, for the laws respecting criminals were not enacted at one period, but as occasion required. The opinions which were said to be entertained by a highly respected gentleman, now no more, were similar to his own, for in most of the divisions on the subjects brought by him before the House, he had voted with him. He was convinced that there were many points where capital punishment ought to be removed. If he understood the object of the present motion, it was, that the consideration of the question in its largest extent being too much for one committee, a particular part of it should be submitted to the consideration of a committee to be appointed by the House. He agreed that but little delay ought to take place before the investigation. Besides the present subject which required examination, there was another connected with it, which he hoped would be revised by the House during the present session; he meant the Bankrupt laws. If an individual under the present laws concealed part of his property, or refused to surrender himself to the commission issued against him, he was liable to be tried on a capital charge. He thought that neither the committee proposed by the noble lord, nor that now moved for by his hon. and learned friend, could properly consider this question in the extended view he took of it. He was of opinion, that the House having received so much information from the documents laid before it, and from the hon. members, particularly the hon. member who spoke last, the wisest mode would be to apply a remedy to each particular evil, without any reference to committees. On these grounds, he should resist the motion of his hon. and learned friend.
§ Mr. Lawson
spoke for neatly half an hour; but the cry of "Question! ques- 826 tion!" and "Bar! bar!" together with almost incessant coughing, prevented him from being heard in the gallery We understood, that he opposed the motion.
§ Sir Charles Mordaunt
thought the subject before the House of such high importance as to require the undivided attention of one committee; and that it ought not to be referred to that little family of committees which, they were told, were to branch out of the committee of the noble lord. He was convinced that it would be hopeless to lock for any satisfactory report from any committee that was not exclusively occupied with, this important and complicated question.
§ Mr. J. Smith
rose chiefly to allude to-some cases that had come within his own knowledge, and which showed that the penalties of the crime of forgery were often incurred by persons whom neither the law nor moral justice could have contemplated as fit objects for the extreme punishment of death. He had seen, and known boys of fifteen and sixteen years of age, who bad committed the crimes of forgery;—boys simple and uneducated and whose only capacity for the offence consisted in the being able to-write, and who were absolutely unacquainted with the consequences, either to themselves or others, of the act which they had been instructed to perpetrate. The hon. member for Weymouth in a speech which for facts, for argument, and for eloquence, was unanswerable, and which, reflected the highest credit on his character (though that indeed required no additional lustre), had been, perfectly correct in his reference to fraudulent bankrupts. Instances of the sentence being executed on such offenders were so rare, that they could scarcely be said to have occurred at all; and instances of prosecution were almost as rare. Yet it had appeared in evidence before the bankrupt committee, that no offence was were common or more injurious than that of fraudulent bankruptcy; but that creditors, however aggrieved, could not bring themselves to inflict the punishment of death.
§ Mr. E. Littleton
said, he had at first taken a different view of the subject, but the eloquent and argumentative speeches of the hon. and learned mover, and of another hon. gentleman on the same side, had carried such conviction to his mind, that he should act most unconscientiously,*827 if he did not give his vote for the original motion. Much as he deprecated, in general, any intermeddling with our established laws, yet he could not but see that there were good grounds for. an inquiry in the present case; and he could not approve the suggestion of an hon. and learned gentleman below him, that it might be left to the discretion of any individual to bring forward, as occasion might arise, a specific remedy for each specific abuse: the consequence of such a plan would be, that the country might for years go on with a system acknowledged to be faulty, and nothing effectual might be done at last. He gave every credit to the noble lord for his motives in the appointment of his committee; but many sessions, and even some parliaments, might pass away, before such a committee could make such reports as would satisfy the country on all the subjects submitted to its inquiry. It was indeed a committee "de omnibus rebus et de quibusdam aliis."
§ Mr. Protheroe
made several strong observations in favour of the original motion; and after stating the general feeling of the country, concluded by exclaiming, "if indeed we are, as we are said to be, the representatives of the people of England, we are bound to give out vote in favour of the, original motion."
§ Mr. Wilmot
began by saying, that he did not presume to congratulate the House, but he must congratulate himself on the eloquent lesson of moral wisdom which had been read that night from the other side of the House. [Hear, hear.] The hon. and learned mover had well redeemed his pledge, that he would not reflect either on the laws or on the administrators of them. The hon. gentleman then professed his intention of following the speech of the hon. and learned mover point by point, assenting to some of his propositions, and dissenting from others; but the law tone in which he spoke, prevented our hearing distinctly the grounds either of his approbation or disapprobation. He concluded nearly to the following effect:—With respect to the sentencing persons to the hulks as a commutation for the punishment of death, he conceded it to be an, extremely erroneous policy, and, in, fact, little else than a bonus upon, crime. The great and important alterations which he wished, to see made was, that amelioration, of the law by which the system of secondary punish- 828 ment might be abolished. That, he conceived, had had the worst effects, in the incentive which it held out to the commission of crime. It was one reason why he thought a committee necessary; and therefore, unless, in the course of the debate, he heard that a separate, committee was intended at no distant day, to inquire into the criminal law, he should feel it his duty to support the hon. and learned gentleman's motion; but if he should find, as he expected, that such, committee was in contemplation, he would vote for the previous question.
§ Mr. Wilberforce
felt that it was almost unnecessary for him to trespass on the attention of the House, after what they had already heard upon this important subject, and he feared that any observations of his, in support of his hon. and learned friend's motion, would weaken the effect of those arguments by which his hon. and learned friend had pressed it upon the House. He could say with truth, that in his long experience of that House, he never had heard a more able address, a more splendid display of profound knowledge of the subject, with such forcible reasoning from the facts which that knowledge had called forth. It was that kind of reasoning which was most calculated to convince—reasoning deduced from facts and from long experience. He not only had derived great pleasure from what he had heard, but also from what he had not heard in the course of the discussion; namely, those arguments, or rather those objections, against alterations of, or inquiry into, old laws and customs, which had been so vehemently urged at former periods. It was a pleasure to him to find that which every man acquainted with life must have seen, that the opinions of prejudice faded before truth, like the dusk before the more perfect light of day. He remembered once to have heard opinions urged against alterations of sanguinary laws, which were urged with as much apparent fear as if the person proposing those alterations were about to introduce the horrors of the French revolution. He had heard opinions at that time which any man would blush to hold at the present, day. No such objections were, however, made on this occasion; and the only one to the motion of his hon. and learned friend was, that it would be better to refer the matter to the committee proposed by his noble friend. And here he could not but ex- 829 press regret at the concluding part of the hon. gentleman's speech who had last addressed the House. He had said, that unless he heard that a particular committee was intended to be appointed in a short time, he would vote for the hon. and learned gentleman's motion. By this, he had admitted the very principle at issue—he had admitted the necessity of a particular inquiry; and if so, how was it that he could not support the motion, which would go directly and immediately to the very point he wished? Why should he prefer the expectation of a committee, when he might have one at the present moment? When there were so many reasons urging to the immediate inquiry? Should it be said, that any one had a respect for the laws who would not wish to wipe from them that code of blood, which, though bearing with it all the authority of legislative enactment, no one had the heart to excuse. Why should not some alteration be made which would take from a jury the painful task which they had so often to perform at present? And yet that could be done by an alteration of the laws. His noble friend had said he would not go into detail on this question. It was also his (Mr. W.'s) intention to abstain from it: that detail would come better in the committee on the gaols. The question of secondary punishments had been decided; there was no difference upon it: if, then, the object was, to aim rather at removing the cause of crime, the examination of our laws, with a view of seeing where the punishment of death could be avoided, might be safely gone into. It had been said that our laws had not been made all at once, but had been the result of gradual legislation. That was the fact; but it argued nothing against his hon. and learned friend's motion. Our penal laws were certainly the result of gradual legislation; because, when a crime was found to exist, it was conceived to be a much easier made of checking it, to enact a severe statute against it, than to stop and inquire into its cause or to look for a more lenient way of preventing it. It was thought to be a safe way of checking the crime, to fix the penalty of death in the statute-book against its commission. But that this wag a most erroneous mode of legislation experience had taught; and it should be recollected now, that this method, would not do for those with whom we had to deal. They were persons who 830 were careless as well of this life as of the life to come, and seemed as little to consult that which concerned their lives as their eternal welfare. They looked not to the enormity of the crime, but to the chance of escaping the punishment; and in this gambling with life they were encouraged by the number whom they daily saw condemned to, but who were, with very few exceptions, redeemed from, the highest punishment of the law. Ought, then, the system to be continued which this very principle brought into action? If not, there was the very best reason for a committee. It should be recollected, that by having it as soon as possible, some persons might be saved. He would say to those unfortunate men who calculated upon the chances of comparative impunity—the whole system upon which you have hitherto been treated is stale; it shall be altered; you shall be subjected to a punishment which you dread as much as death itself—to solitude. He did not mean by solitude, that kind of arbitrary and continued solitary confinement, but that kind of confinement where a man would be left to his own reflections, and to a sort of communion with his conscience, which could not fail to point out to him the evils of his former course of life. He remembered very well the mode which was suggested by Mr. Bentham, for whose able opinions on this subject the country was so much indebted; and in speaking of his great merits, he could not omit to notice another gentleman who had also written upon the subject—Mr. Basil Montague. To both those gentlemen the country owed much for what they had written on this subject; and when he found such men, in the present day, supported by such authorities as Sir Thomas More, Erasmus, Bacon, and Lord Coke—when he found all these condemning and describing as extremely erroneous, the system of severe punishment, instead of the mild course of endeavouring to remove the crime—when he heard such opinions from such men, he could not but think, that, instead of being considered hasty in their desire for a committee on this subject, they ought rather to be accused of being tardy in not having called for it before, and that the legislature was to blame in having so long neglected a matter where human life was at stake [Hear, hear.] He begged pardon for taking up so much of the time of the House, but could not avoid ex- 831 pressing his opinion in favour of his hon. and learned friend's motion, from a conviction of its necessity. He also should express the pleasure he felt that this important question of the criminal laws of England had fallen into the hands of one who was so well qualified to take it up in the able manner in which it had been introduced by a late honourable member, whose loss all must equally lament. The great principle on which the House should proceed was—how far crime might be lessened by making punishment certain. The hon. gentleman then adverted to the means which had been resorted to with Success in America, in order to render crimes less frequent, by taking pains to educate the lower orders, and at the same time to lessen those inducements to criminality which abounded so much in this country. He feared that the committee bf his noble friend would necessarily omit a great detail on many important points, from the complication of the subjects which it embraced. He would mention New South Wales, for instance, which, in his opinion, was of sufficient importance to demand a separate inquiry.
expressed great satisfaction at the speech of his hon. friend the member for Bramber, which had certainly put the question before the House in a fair point of view. He was happy to say that he concurred in almost every one of the general opinions of his hon. friend, and in none more cordially than in his admiration of the manner in which the question had been introduced by the hon. and learned gentleman (he hoped he would permit him to call him his hon. and learned friend);—whose speech, combining luminous arrangement and powerful argument, with chaste and temperate eloquence, had been at the same time not less commendable for what it omitted, than for what it contained. It had been free from those defects which on such a subject might have beset the most wary speaker; and while his hon. and learned friend had held a straight-forward course towards the object of his motion, he had, with a dexterity highly creditable to his prudence and wisdom, steered clear of the shoals and quicksands by which that object was surrounded. He had observed the most praiseworthy caution in forbearing from reflexions on the general system of the criminal laws; and by so doing he had made it possible, even for those who would most fearfully have shrunk from a 832 sweeping condemnation of the system and from principles of reform of too wide and indefinite operation, to agree with him as to the expediency of some amendment in parts of our criminal jurisprudence.
A question of great importance remained—by what means could such an amendment be best accomplished? And this was the practical question now before the House. He (Mr. Canning) was of opinion, that the inquiry should embrace as comprehensive a view as possible of the state of crimes and punishments in the country: not of capital punishments only, but of crime and punishment generally; and should be conducted in such a manner as might show that the anxiety of parliament was not directed to the mitigation of penalty alone, nor its sympathy awakened only for the guilty, but that it had in view the better security of life and property, and the peace, safety, and comfort, of the well-ordered part of the community. He had been greatly reconciled to the view taken of the subject by his hon. and learned friend, when he found that he was not for expunging, as some benevolent theorists were prepared to do, the punishment of death in all cases. His hon. and learned friend was for allowing it to remain, not only (as nature prescribes) in all cases of murder, but in all cases of forcible attack upon the life or dwelling of man. There were some honourable gentlemen who believed that there was no necessity for the infliction of such an extreme punishment in any case. A visionary speculation, he feared. Would to God that the ideas of crimes which called for such acquittal were visionary also! But where was the nation under the sun that had been able to banish that extreme punishment from its code—at least, unless by the substitution of other most cruel and barbarous inflictions—leading in fact to the same result, though adopted under the pretence of avoiding it? He was glad, therefore, that his hon. and learned friend had not been led astray by the wild theories of an impossible system of mildness. He was glad of it, not because the system was impossible; but because, being impossible, any attempt to attain to it could only have the effect of exciting fruitless expectation, to end in certain disappointment; of throwing loose the opinions and wishes of man-land, and leading them to distrust and disparage the ordinary and existing course of justice in the hope of a substitute which 833 was not to be found. Into one great branch of penal law it was thus admitted by his hon. and learned friend, that no inquiry was necessary. In proportion as the range of inquiry became circumscribed, the necessity for the appointment of a separate committee must also be diminished. Indeed, as all the elements of the subject were before the House, as no new light could be thrown upon it, as the general propositions respecting crime and punishment had been objects of discussion in every age and every civilized country, he could not see why a committee would be necessary at all, to prepare the House for the introduction of a particular proposition—if any such were in view—for the repeal or alteration of any particular law which, from the alteration of circumstances since the time of its enactment, from the experience of its effects, or from a re-consideration of its policy, his hon. and learned friend might wish to have altered or repealed. Such was the course which the predecessor of his hon. and learned friend (sir S. Romilly) had taken, in his proposed amendments of the criminal law. It had been said, indeed, that those several propositions had failed, sometimes in that House, sometimes in the other House of parliament. In general, however, those propositions had been supported in the House of Commons. It was to him (Mr. Canning) a source of much satisfaction, that he was maintaining no other opinions now than he had formerly maintained on this whole subject; and the House would do him the justice to believe in his sincerity, when he reminded them that he had for the most part supported the motions made by sir Samuel Romilly, both when he (Mr. Canning) was connected and when he was unconnected with government. He had not done so merely by silent votes; the published reports (which were given, in that instance at least, with singular fidelity), showed that he (Mr. Canning) had taken an active part in the debate on one of sir Samuel Romilly's motions; and that his support was given on that occasion on the distinct and expressed ground that the propositions of sir Samuel Romilly were separate and insulated, and that they were not brought forward with that sweeping generality, which if it had not a tendency actually to destroy the institutions of the country, must have the effect of lowering them in the eyes of the 834 nation. It was therefore in perfect consistency with his former recorded opinions, that he (Mr. C.) declared his wish that his hon. and learned friend, if he had (as he must be presumed to have) a clear conception and view of his own practical objects, would rather bring forward the proposal of the changes which he meditated in the criminal laws, each by itself, as applicable to the particular law, than call for a general revision of the whole, with a view (as he himself admitted) to a very partial amendment.
He was not prepared to say at the same time that every instance in which sir Samuel Romilly had succeeded with the House, had in its result been productive of all the benefits anticipated from a change. One attempt in which sir Samuel Romilly had succeeded, both in that and the other House of Parliament, was that by which stealing privately from the person had ceased to be a capital crime. And what was the result? The number of offences, instead of diminishing had since progressively increased. In 1810, the number of convictions for that offence was 64, and it had gradually increased every year until 1818, when it amounted to 282. The argument of the hon. member for Weymouth was, therefore, fallacious when he said, "repeal part of the criminal law, and the number of crimes will diminish." Here part of the criminal law had been repealed, and the consequence had been one increase of crime nearly five-fold. "But,' said the advocates for the repeal, "that has been owing to the greater number of prosecutions." He would not say that there was nothing in that argument; but though gentlemen could not avail themselves of both statements, they could not first say that if a penal law were repealed the number of offences would be positively reduced,—and, on the other hand, when after the penal sanction had been taken away, and it had been found that the number of crimes had increased, turn round and say, that prosecutions for offences no longer capital must necessarily be more numerous. The test of fewer offences is the test of their own choosing, and that manifestly fails them. As to the comparison between the operation of the fear of death on the human mind, when the sentence of death is pronounced much more frequently than it is carried into execution, and when capital convictions are less numerous but inva- 835 riably followed by execution,—he would not pretend to decide. But he might be permitted to doubt, whether that degree of certainty which the proposition presumes, could ever be attained or desirable: whether human wit could devise a system of penal justice, an adoption of punishment to crime, so precise as to warrant or justify the exclusion of the prerogative of mercy. That once let in to operate, however rarely, the certainty was at an end; and the probabilities of execution or escape became then only a question of degree. As to those who went still further, and placed the fear of death, however qualified or mitigated by hopes of commutation, below the fear of any smaller but more inevitable punishment,—he could only express his astonishment at any doubt which was entertained that the fear of death was the strongest moral sanction that could be applied to the human mind—that the desire of clinging to life was the strongest instinct of human nature. He begged he might not therefore be understood to say, that the sanction of death ought to be retained where an inferior sanction would be adequate to the purpose. All that he meant to say was, that if the legislature were disposed to do away with the sanction of that extreme punishment, they could not replace it with a sanction of equal obligation;—it did not follow that they might not find a sanction that was sufficient,—and whether such a sanction could be found or no, was in his view the main question, and a question preliminary to the abolition of the sanction already existing. Of these inferior punishments, imprisonment is obviously the most important, and the most susceptible of modifications which may adapt it to several purposes and several degrees of crime.
To examine into the state of gaols with a view not merely to the insuring the safe custody of prisoners, but of effecting their reformation, and thus answering, in some respects, the purpose aimed at by the terror of capital punishments, was the allotted business of a committee already appointed. So far, therefore, the object of his hon. and learned friend's motion was anticipated. If transportation was not at present adequate to the penal purposes for which it was intended, as offering to the offender, in many instances fairer prospects than he could enjoy at home—prospects that are looked at with envy rather than with 836 dread by industrious and enterprising individuals,—that matter too was within the scope of the committee already appointed. Certainly if other places of transportation could be found fit for the purpose in question, there could be no objection against opening the colony of New South Wales, and its beautiful climate, to persons of a different character from those who now enjoy and pollute it. This would form a subject of inquiry in the committee proposed by his noble friend,—in which it was proposed to inquire, not into the state of gaols and into the present mode of transportation, but into the best methods of providing for the punishment and for the reformation of offenders. When such an inquiry had opened the way to the effectual improvement of secondary punishments, then would be the time for entertaining the views of his hon. and learned friend, with respect to the laws by which the highest punishment was inflicted. But until that preliminary inquiry had been entered upon, to agree to his hon. and learned friend's proposition would be considered by the country as a condemnation of the existing penal law;—and that before provision had been made of, any substitute by which outrage could be suppressed, and the peace and good order of society maintained. What, as had been justly observed in the course of this debate, would be the case of a criminal who should suffer death in the interval between the condemnation of the present system, and the establishment of another in its room? "What! punish me," he might exclaim, "by those laws upon which you yourselves have pronounced a sentence of abolition!"
At the same time, while he (Mr. Canning) recommended caution in this proceeding, he was by no means an advocate for such slowness as might place the desired object out of reach. As the hon. member for Weymouth had said, the Committee last night appointed could not examine every gaol in the kingdom. What he presumed would be considered the proper course of proceeding, was, that with the assistance of able and intelligent men (and no man was more fitted to aid such an inquiry than his hon. and learned friend), the committee should obtain such a general knowledge of the state of the gaols, and more particularly of those upon an improved plan, many of which are, to the honour of the local 837 magistracy, to be found in several parts of the country, where means are adopted for classifying criminals and for effecting reformation; that then the House, with these models before them, should address the Crown to nominate commissioners who should take a practical survey of the gaols throughout the kingdom, in order to ascertain how far they were already or might be rendered, conformable to the most approved models; while those more immediately within reach might be inspected by the Committee itself. Information might thus be procured to satisfy the amiable enthusiasm (he used the expression in its most honourable sense) of the hon. gentleman (Mr. Buxton), who sat below his hon. and learned friend, such as would lay a broad and sound foundation for gradual practical improvement. While these inquiries were pursued by commissioners, the Committee would be at leisure to entertain his hon. and learned friend's propositions respecting the alteration of such parts of the criminal law, as would admit of the substitution of the milder for the extreme sanction. Such was the course which he thought it most eligible to pursue. If the present motion should be carried, he would venture to say, that ere long the House might find it expedient to throw the two committees that might then be pursuing their separate inquiries into one. The general desire on all hands was to uphold due reverence for the laws, but to purge them from impurities,—to free them as much as possible from every stain, but to hold them up in unimpaired reverence to the country, as a protection to the peaceable and orderly, and a terror to evil doers. The House ought not, for the purpose of obtaining a little temporary popularity—even if popularity worth having were so to be obtained—to act contrary to this view of the subject, and to give apparent justification to a cry that was raised out of doors, and which his hon. and learned friend knew as well as he did, was not the unmixed voice of speculative benevolence, anxious for the improvement of human laws as a control upon human passions; but was mingled with a factious and unreasonable clamour which his hon. friend would be as little disposed as himself to countenance, and which it was but fair to add, his hon. and learned friend's speech of that night had not echoed or encouraged.
838 He only feared, that the carrying of his hon. and learned friend's motion might have an effect which his speech was certainly not calculated to produce; and therefore, feeling convinced that the committee already appointed would go to the necessary inquiry in the temper necessary for the accomplishment of all its objects, with as anxious a sense of the duty imposed on them, and with as much diligence if not ability in the discharge of it, as any that could be now nominated, he must oppose the motion for another committee made by his hon. and learned friend.
§ Mr. Scarlett
complimented his hon. and learned friend on the able manner in which he had brought his motion before the House, and observed that he did most heartily and feelingly concur with him in the eulogium which he had so eloquently passed upon a late illustrious member of their body. Had that individual, whom all in common with him deplored, been now alive, he would have had the satisfaction of witnessing the triumph of humanity over prejudice, and of reflecting that he had been the chief instrument, under Providence, in achieving it. In treating upon this topic he scarcely knew how to regulate his feelings; and yet it became him, more than any other individual, to be temperate in his praise, as he had been honoured by the friendship of that excellent man, even from his earliest years. He could say of him that when he first undertook his arduous labours in the cause of humanity, he had given credit to mankind for greater knowledge, liberality, and feeling than he afterwards found them to possess. He could say of him, that the chief object for which he lived was the amendment of the penal code; and he was certain that the hon. and learned mover was acting in a manner most congenial to the wishes of their departed friend, in proposing the present investigation into the state of the penal laws. The principles which that lamented statesman had been the first to propound to the House, though once most vigorously and vehemently disputed, had been that night complimented by men of all parties. The first bill which sir Samuel Romilly had introduced into parliament, contained the remarkable preamble, that the excess of severity did not prevent the commission of crimes. He introduced the bill with that preamble, in order that his sentiments might be recorded in this 839 sanctuary of legislation; and the consequence of it was, that though the bill was passed, the preamble was rejected. In laying down that principle, he had gone far beyond his age and generation, and it was only by perpetual efforts, by sometimes passing one law in one session and another in another, that he enlightened the public mind and improved the public opinion, to the degree that it was at present enlightened and improved. It was consoling to reflect, that almost the last act of sir S. Romilly's public life was, to get that very preamble passed, which, on its first introduction to the House, had been so rudely rejected; and that he had the satisfaction to see recorded, as the sentiments of the Commons of England, his favourite principle, that excess of severity did not prevent crime. [Loud cheers].—He did not exactly know how to explain the principle on which the right hon. gentleman who spoke last acted; for though he supported the hon. and learned mover's argument in some points, he did not support them in all. He could not help considering it as one of the triumphs of the evening, that they had to boast of the right hon. gentleman as a proselyte, though not so far as to accord with the wishes of the House and the public, which had been expressed in a manner too strong to be mistaken. Their opponents, among whom the right hon. gentleman was to be classed, had first of all disputed the justice of the law which had passed. Then they said that sir S. Romilly's bill did not accord with the expectations which had been raised regarding it. On this point, he was happy to state that they were far from being rightly informed. Nobody, indeed, expected that the crime of privately stealing from the person would immediately be lessened by the new enactments; and yet it would be found that, if the comparative increase of crimes were taken into consideration, it had suffered considerable diminution. For instance, the convictions for privately stealing from the person in 1811, were 85; in 1817, 257; the convictions for burglary in 1811 were 76, and in 1817, 374; from which any person might see, that if the comparative increase of crime were considered, the burglaries had become more, and the private stealing from the person less numerous.—He had not now to contend for the propriety of altering the enactments of certain obsolete laws, as that was universally granted; the question before the House was, which of the two 840 committees was best. He thought that ministers ought not to be now coming to the House with motions for committees to inquire into the state of the gaols, but that they ought, on their own responsibility, long since to have come forward with remedies calculated to remove the evils and miseries which had given rise to such a general complaint. After the circulation of an excellent pamphlet, to which allusion had often been made in the course of the evening, a pamphlet which he had himself read with mingled sensations of pain and pleasure—pleasure, from the talents which its author displayed; pain, from the miseries which he depicted—he was surprised that the noble lord had dared to come down to the House without any specific plans; that he had dealt so completely in generals, and had done nothing else but propose a committee for a purpose so universal. He was still more surprised to find, that the noble lord had added another important subject to the labours of that committee; namely, the state of the criminal law. The prisons were, it was true, connected with the criminal law of the country; but if these two subjects were joined together, it appeared to him that all ideas of classifying the prisoners, all ideas of enacting those rules which would make a prison the school of morality, would be entirely omitted. The continuance of the obsolete punishments enacted by the laws, or of those punishments which, though inflicted by the legislature, were seldom or never inflicted by the executive government, was well worthy of their serious attention, because he had no hesitation in saying that it multiplied in the prisoner's mind, the chances of escape, the chances of mercy, and every other accident on which a culprit could calculate. Let, then, our prisons be the dreadful dungeons which they were represented to be, or the imaginary paradise which they ought not to be, the question remained still the same; and he would therefore ask the House, whether they ought to continue on their statute book those laws which were never executed? The right hon. gentleman had forcibly urged that the repeal of these laws would destroy the apprehension of death; he however differed widely from him in opinion, since the House was not called upon to repeal the terror of death, which was too firmly fixed in the human mind; but the dead letter of the law which was no punishment at all. He 841 had seen examples, in the course of his practice, in which the prosecutor, the witnesses, the judge, and the jury, had all joined in an amiable conspiracy to screen the delinquent; and therefore, if it was the opinion of the House, that excess of severity did not prevent the commission of crime, he would ask whether it was consonant with the dignity of the House to let the question remain in doubt till another committee should have finished its sittings?—The hon. and learned gentleman then proceeded to argue, that as the grand object of punishment was example, the penal laws ought to form a grand moral code, and that every conviction ought to be a lesson of instruction to those who witnessed it; whereas in ninety-nine cases out of every hundred, the sentence which the judge passed upon the criminal was a mockery of law, a mockery of religion, a mockery of all the best feelings of human nature. He would beg the House to figure to themselves what he and many other individuals in it must have frequently seen—a long line of thirty or forty criminals brought up at the end of an assize to receive sentence of condemnation: the judge might pass sentence of death upon each individually, or upon the whole in the mass, and yet, was there any one of the spectators, nay, was there any one of the criminals, who expected that sweeping condemnation would ever be executed? If, then, the sentence of condemnation had become a mere mockery, it was the duty of the House to make the theory and practice of the law of England to coincide; for if there was any country where the law was mildly administered towards criminals, it was England; and if there was any which was more disgraced by sanguinary enactments than another, it was likewise England. [Loud cheers]. The hon. member for Newcastle had said, that he would vote for his hon. and learned friend's motion, in case the inquiry was a real inquiry, and not set up for delusion: he would take that hon. member at his word, and would congratulate his hon. and teamed friend on having obtained the acquisition of his vote to his motion. For his own part, he must declare, that if he had come into the House a perfect stranger to the question, and had heard the hon. member for Weymouth's assertion, that the investigation into the state of the gaols would form sufficient employment for one com- 842 mittee, his mind would have been immediately made up to vote for his hon. and learned friend's motion. The object of that motion was to make the House re-acknowledge the principle, that excess of severity did not prevent the commission of crime; he therefore hoped, that when the House considered the importance of the subject, it would not vote for the previous question.
Mr. Alderman Wood
said, that after the brilliant display of eloquence and sound argument, which the House had that night witnessed, he should have contented himself with a silent vote on this important question, did he not feel it to be a duty which he owed to the corporation of the city of London, who first presented a petition to this House in favour of a revision of the criminal law, to support to the utmost extent of his humble abilities, the motion now before the House. His hon. friend, who stated to the House certain facts, which must have impressed upon the mind of every member the necessity of an immediate inquiry, had alluded to some information received from him (alderman Wood). He assured the House, that scarcely a day passed in the course of the two years, in which he filled a public civic situation, without some persons declining to prosecute, when the offence was held by the law to be capital. One most extraordinary instance occurred in which a prosecutor destroyed a bill of exchange amounting to upwards of 100l., because he would not appear against the prisoner, he being charged with forgery. Facts of this nature appeared to him to be strong reasons in favour of an immediate inquiry.—It was most important to consider the present crowded state of the prisons, particularly of Newgate, and especially that part of it, appropriated to prisoners condemned to die. There were now in that department forty-seven criminals capitally convicted, and the fair calculation from the general practice warranted an inference that not more than four of them would suffer the sentence of the law. He need not advert to the other parts of Newgate, which were crowded with convicts; there were now more than 200, and many of these had been confined for upwards of twelve months. This circumstance alone tended to produce an increase of crime; for the men and boys were confined without any bodily or active employment whatsoever. The noble lord had stated last night, that 843 the increase of prisoners materially arose from the great discharge of sailors from the navy. He begged to state, that out of 350 male prisoners now confined in Newgate, there were only 12 who had served in the navy. In his humble judgment, the only way to prevent or decrease crime was, to fix a definite punishment, and nothing which could be adopted, appeared to him to be equal to the enforcement of hard labour, which would enable the prisoner at the expiration of his imprisonment, to obtain a livelihood. It was on this account that he strongly urged the adoption of a plan, mentioned in the report of a committee laid before the House in the last year: viz. the converting of Dartmoor prison into a receptacle for convicts. They might there be fully employed in cutting stone and turf, in building cottages, and in cultivating the land. This would be a saving to the country of at least 100,000l. per annum; and he would further suggest, that every prisoner, at the expiration of his term of punishment, should be sent to his parish, and that he should there be registered, placed under the especial care of the parish officers, employed, maintained, and not allowed to depart without a passport. Much stress had been laid by the noble lord and the right hon. gentleman opposite upon the increase of the crime of privately stealing from the person, since the capital part of the punishment had been taken off. It had been, well replied to by the hon. and learned gentlemen who spoke last; viz. that other crimes had increased in a similar proportion. He considered the best answer to this observation was, that previously to the passing of sir S. Romilly's act, all offences of such a nature were capital, and consequently numerous prosecutions were continually abandoned from the humanity of the prosecutor. Under all these circumstances, he felt it his duty to support the motion of his hon. and learned friend.
The Attorney General
said, that he should not occupy much of the attention of the House. With respect to the assertion that capital punishment should, if possible, in every instance, follow the commission of crime, he could not but disagree from the position. Well might our laws be considered as sanguinary, if, in every case, suppose of burglary, death was necessarily to follow the commission of the act. The crime of burglary was defined to be the entering of a house be- 844 tween the hours of sun-rise and sun-set, with a felonious intention; but would justice require that a boy who should open the latch of a door between those hours should be punished as guilty of the offence, although he might possibly be subject to the punishment by the mere letter of the act? The same observation might be made respecting robbery on the highway; because it was impossible for the law to take every possible consideration of the various circumstances under which such offences might be committed. Some might be such as in justice to require capital punishment, and others might be attended with extenuating circumstances. With respect to the bill which had been introduced by an hon. and learned gentleman, whose name he should never hear mentioned without respect, he had objected to the preamble of that bill when under the consideration of the House, as involving an abstract proposition, which might afterwards be made a precedent for establishing conclusions that were questioned. There never was a more religious, just, and humane man than lord chief justice Hale, and yet he was for inflicting the highest punishment on certain offences, without entering into the demerits of the individual who might have committed them. With regard to capital punishment for one species of crime, to which the hon. and learned mover wished to direct the attention of the House, he would ask, whether there was not as much moral guilt in forgery, which, by a stroke of the pen, deprived a man of his property, as in the act which should deprive him of it by forcible means? If the hon. and learned member had called for a committee of inquiry into the operation of punishment for any specific crime, he should perhaps have given it his support; but as the motion stood at present, he must vote for the previous question.
§ Sir James Mackintosh
, in reply, observed, that he should be unreasonable if he did not think that the state of the argument lay fairly before the House, and that therefore it would not be requisite for him to trouble the House long at that late hour. With respect to his hon. and learned friend who had spoken last, he should set him right on one or two points. He did not intend that the punishment of death should in every instance follow the commission of burglary, nor did he mean at all to refer to the question of forgery. 845 The committee he had intended to move, would, if he were to read the list, be found to contain as fair a selection from all parts of the House as could be made.
The previous question being put, "That that question be now put," the House divided:
The result of the division was received with repeated cheers. The main question was then put and agreed to; and a committee appointed, consisting of the following members:—sir James Mackintosh, Mr. Bathurst, Mr. Scarlett, Mr. Attorney General, Mr. Wilberforce, lord Nugent, Mr. Solicitor General, Mr. Abercromby, Mr. Granville Vernon, Mr. alderman Wood, sir Charles Mordaunt, viscount Althorp, Dr. Phillimore, Mr. Finlay, Mr. Fowell Buxton, Mr. Courtenay, Mr. Brougham, Mr. Williams Wynn, Mr. Littleton, Mr. Macdonald, Mr. Holford, and lord John Russell.
Ayes 147 Noes 128 Majority in favour of sir James Mackintosh's motion 19
|List of the Minority.|
|Abercromby, hon. J.||Dundas, Thos.|
|Allan, J. H.||Ebrington, visct.|
|Althorp, lord||Euston, earl of|
|Aubrey, sir J.||Ellice, Edward|
|Barham, Jos.||Evans, William|
|Baring, sir T.||Fitzgibbon, hon. R.|
|Barnett, James||Fazakerley, N.|
|Becher, W. W.||Fitzgerald, lord W.|
|Bernal, Ralph||Fleming, D.|
|Bennet, hon. H. G.||Folkestone, lord|
|Benyon, Benj.||Forbes, C.|
|Birch, Joseph||Finlay, Kirkman|
|Brand, hon. T.||Gordon, Robert|
|Byng, G.||Graham, J. R. G.|
|Burdett, sir F.||Grattan, rt. hon. H.|
|Bankes, H.||Grenfell, Pascoe|
|Buxton, T. F.||Gurney, H.|
|Beaumont, T. W.||Gurney, R. H.|
|Bentinck, lord W.||Grant, G. M.|
|Calthorpe, hon. F.||Gaskell, Benj.|
|Campbell, hon. J.||Harcourt, John|
|Carew, R. S.||Harvey, D. W.|
|Carter, John||Hill, lord A.|
|Cavendish, lord G.||Honywood, W. P.|
|Clifford, capt.||Howard, hon. W.|
|Coffin, sir I.||Howarth, H.|
|Churchill, lord C. S.||Hume, Jos.|
|Coussmaker, Geo.||Hurst, R.|
|Crickett, R. A.||Hutchinson, hon. C.|
|Davies, T. H.||Heygate, alderman|
|Denison, Wm.||Kennedy, T. F.|
|Dickinson, Wm.||Knox, Thomas|
|Douglas, hon. F. S.||Lamb, hon. W.|
|Duncannon, lord||Lambton, J. G.|
|Dundas, hon. L.||Lloyd, J. M.|
|Dundas, hon. G.||Lyttelton, hon. W.|
|Longman, G.||Rickford, W.|
|Littleton, E.||Scarlett, James|
|Lubbock, sir John||Sefton, earl of|
|Leigh, J. H.||Smith, hon. R.|
|Lewis, T. F.||Smith, George|
|Macleod, Roderick||Smith, Wm.|
|Macdonald, James||Smyth, J. H.|
|Mackintosh, sir J.||Sinclair, George|
|Martin, John||Stanton, sir G.|
|Maitland, J. B.||Stuart, lord James|
|Maxwell, John||Stewart, Wm.|
|Monck, sir C.||Symonds, T. P.|
|Morpeth, lord||Stanley, lord|
|Mostyn, sir Thos.||Tavistock, marq. of|
|Mordaunt, sir C.||Taylor, M. A.|
|Money, W. T.||Thorp, alderman|
|Newport, sir J.||Tierney, rt. hon. G.|
|North, Dudley||Vernon, G.|
|Nugent, lord||Vernon, G. V.|
|Ord, Wm.||Waithman, alderman|
|Palmer, C.||Webb, Ed.|
|Palmer, C. F.||Wharton, John|
|Pares, Thos.||Whitbread, Wm.|
|Parnell, sir H.||Western, C. C.|
|Phillips, C. M.||Wilkins, W.|
|Philips, George||Williams, W.|
|Philips, Geo. jun.||Wilson, sir Robert|
|Ponsonby, hon. F. C.||Wood, alderman|
|Power, Richard||Wilberforce, W.|
|Proby, hon. capt.||Wynn, C. W.|
|Price, Robert||Wall, J.|
|Protheroe, Ed.||Wilmot, R. J.|
|Phillimore, Dr.||PAIRED OFF.|
|Portman, E. B.||Brougham, Henry|
|Ricardo, D.||Calvert, Charles|
|Ramsden, J. C.||Concannon, L.|
|Rancliffe, lord||Fergusson, sir R. C.|
|Robarts, A.||Foley, Thos.|
|Robarts, W. T.||Guise, sir W.|
|Russell, lord John||Merest, J. W.|
|Russell, lord G. W.||Newman, R. W.|
|Russell, lord W.||Smith, S.|
|Russell, R. G.||TELLERS.|
|Rumbold, C. E.||Calcraft, John|
|Riddell, sir J. B.||Ridley, sir M. W.|