§ Sir James Mackintoshrose, pursuant to notice, to submit certain propositions to the House touching the present state of the criminal law, founded on the report of the committee which had been appointed last session, to take into consideration so much of the criminal code as related to the infliction of capital punishment. The propositions which he should have the honor to propose, embraced two objects; the first was the appointment of a committee for a similar purpose as that which sat during the last session; and, in the second place, he should move for leave to bring in six bring in for the amendment of the criminal law, agreeably to the recommendation contained in the report of the late committee. As he understood there existed no intention in that quarter where he should much regret hostility, to oppose the propositions which he should have the honor to submit, he certainly should not trespass long on the attention of the House, did he not think it respectful towards those new members, who had not heard the former arguments, very shortly to review the nature of the grounds on which this subject was introduced. The object for which the committee was appointed by the last House of Commons, was, to ascertain, by the fullest inquiry and by the best experience, whether the severity of capital punishments did not 228 counteract the very purpose for which they were denounced by the law—whether their effect was not to create such an indisposition in prosecutors, witnesses, judges and juries, to risk their enforcement to such an extent, as in many instances to secure the impunity of persons guilty of very great offences. That was the object to which the late committee applied their diligent attention during the last session of the late parliament. The old, obvious, and common argument in support of the revision of the capital denunciations, was founded on the feelings of common humanity, and on that tender regard to life, which it was at all times so desirable to inculcate; and which it became the special duty of the lawgiver to teach by his commandments, and encourage by his example. Many answers have been made in objection to the extent of the general principle, while some other answers have been directed to the peculiarity of the law, and its practice in this country, which left the question in a great state of vagueness and uncertainty. There have been at all times persons of that vigorous understanding, and, perhaps, of that stern character, who were willing to purchase the efficacy of the law, in the suppression of offences, at the expence of the general principle. There were peculiarities in the denunciations of the law, and the manner in which denunciations were carried into effect in this country, that not a little perplexed the subject. In this country the punishment of death was denounced against many offences, but practised against few. Such a peculiarity gave a turn to the question, which, even on the principles of humanity, produced a state of things materially different from what existed in countries where the practice of the law corresponded with the severity of the denunciation. Such a peculiarity here was not to be supposed the effect of any foresight, refined wisdom, or provident arrangement for such an effect. It arose from no such causes, but was the result of that contest between the disposition of the legislature and the growing humanity and more enlightened feeling of the national character during the last century. It generally happened that innovators and reformers were charged with a love of singularity and paradox, and he believed it was generally true; but there were various instances where the love of paradox could be found at the side of establishment. Indeed it so happened, that one of the 229 eminent men who had directed his attention to the consideration of our criminal code, he meant the late Dr. Paley, had endeavoured to justify this deviation in the practice and the denunciations of the law, by allowing his vigorous understanding to have recourse to the ingenuity of a paradox, in the support of such an opinion. When men of his character adopted such a course of proceeding, it might, perhaps, be traced to those motives which a love of honour and distinction inspired. So soon as they perceived, either from the diffusion of knowledge or the success of previous discussion, that neither honour or distinction was to be acquired by defending the new opinions, they immediately changed their course, and exerted themselves in espousing the cause of received opinions. The natural passion in the support of improvement on subjects freely and fully discussed, would hot distinguish them from their enlightened contemporaries; they ran, therefore, to the opposite side, and became the advocates of antiquated abuses. It was impossible, on other grounds, to account for that love of singularity which was sometimes exemplified by vigorous men. It was the love of distinction, and not of paradox, which impelled them; for the latter was rather the infirmity of secondary talent. It was thus he might be allowed of a great ornament of that House to say, that the strange anomalies in the opinions of the late Mr. Windham were explained. He disdained a communion of opinion on subjects on which all the great men of his time concurred, and undertook, in the spirit of his character, a chivalrous defence of that, which all men but himself had abandoned. The doctrine of Dr. Paley was taking effect when the question was taken up by sir Samuel Romilly, who was so well known and respected, that it would be impossible to raise his fame. He knew it was as impossible for him or any man to raise his fame by commendation, as it was to lower it by censure. It was in that House needless, and would in him be presumptuous. Needless, because that House was best acquainted with his great powers and his greater virtues. What his feelings dictated, and his studies and conviction confirmed, he had brought into parliaments and councils. Though, perhaps, of all men, he retained a most susceptible, and he might say, shrinking humanity, for the sufferings of mankind up to a very advanced period of life, so that 230 it might be considered a part of his temperament; yet during the whole of his labours for the amelioration of the criminal law, he silenced those feelings, and compelled them to remain subservient to a more calm consideration of the great interests involved in the inquiry. What was best calculated to suppress crime and secure the general welfare, was the object that he desired. The undue severity of the punishment had, he was convinced, robbed the law of all its efficacy. There was always in the mind of man a lurking suspicion of the real merits of any plan which, however admirable in theory, had not been submitted to the test of experiment. However injurious such a suspicion might be when carried to excess, it nevertheless comprehended within itself a powerful security against that wild innovation, that precipitate change, which had ever been found fatal to the best interests of society. He by no means therefore complained of this feeling on the present subject. Puerile indeed would such a complaint be—for it was a feeling inseparable from human nature. It was this view of it which struck him in a speech made many years ago by Mr. Fox, and which speech, by a breach of the privileges of that House, he (sir J. Mackintosh) was so fortunate as to hear. In treating of appellate jurisdiction—of the reference of a case from one court to an other—that great man attributed the necessity of such an institution to what he called "a philosophical principle—the first principle of human wisdom—a consciousness of infirmity." It was that consciousness of infirmity, which justified all mistrust of general reasoning until an opportunity was offered for comparing it with particular experiment. The object of the appointment of the committee on the criminal law in the last parliament, was, to put the general reasoning upon that subject to that test. In order to enable themselves to do so, the committee called before them men of all classes and des criptions—prosecutors, witnesses, jurors, and even all judges who could be subjected to such an examination without impropriety. The opinion of the great majority—nay he might say, the unanimous opinion of those persons was, as must always be the case where a theory was founded on just and extensive observation, in favour of that theory which declared the inefficacy of severe punishments. After this, therefore, no man would be at liberty 231 to oppose the test of practical experience to the general reasoning on the subject. Those whose general reasoning had been carried to the greatest extent, were fully justified by the experience and testimony of men who had ample opportunities of obtaining experience, and whose testimony was therefore of the utmost value. The result of the committee which sat in the last session but one of the last parliament, was a recommendation to the House—or rather an instruction to their chairman, to propose to the House, in the next session, several measures calculated to carry their opinions into effect. The last session, consequent on the accession of his present majesty to the throne, was too short to afford leisure for any such propositions. He had therefore deferred any attempt to make them until the present period. The first proposition which he should submit to the House was the re-appointment (if he might be allowed to use a term certainly not altogether correct) of the committee of the late House of Commons on the subject. That committee would have various objects in view; and, among others, to take means for obtaining an experimental answer to the only objection which the late committee had heard against the evidence referred to in their report. It was said, by the objectors; that the evidence taken before the committee was confined to the capital,—that in the country there was no indisposition to prosecute, and therefore that, as respected the country, the alleged extreme severity of punishment did not operate injuriously. Now, to this he replied—first, that this very circumstance was the strongest corroboration of the principle on which the report of the committee was founded. To state that the indisposition to prosecute was greatest, in the capital, where the application of severe punishments was the most frequent, where executions were more numerous, than in all the other parts of the kingdom together, than in any little district where this crying grievance was witnessed perhaps only once in two or three years, was only to show that those who were most familiar with the evil were most solicitous to get rid of it. According to all reasoning on the subject, such should be the fact. The capital should he the place whence the general feeling as to the expediency of the frequent punishment of death ought to be deduced. But although the members of the late 232 committee, and certainly himself among the number, were quite satisfied with this argumentative answer, they were desirous of furnishing an answer from experience. They desired to examine witnesses as to the effect which the severity of punishment had on prosecutors in the provinces. They were desirous also of devoting some time to the consideration of two or three other subjects which appeared to him to be of importance, the mode of pronouncing sentence of death, and one or two other matters.—According to the instructions which he had received, he would move the House for leave to bring in six bills. The three first were for the repeal of so much of the act of the 12th of Anne, chap. 7, as made it a capital offence to steal privately in any dwelling-house to the value of forty shillings; for the repeal of so much of the acts of the 10th and 11th of William 3rd, and chap. 23 as made it a capital offence to steal privately in any shop or warehouse to the value of five shillings; and for the repeal of so much of the act of the 24th George 2nd, chap. 29, as made it a capital offence to steal privately on a navigable river, or in a port of entry and discharge, to the value of forty shillings. He knew that some gentlemen were in favour of two of these bills, and not of the third. They certainly rested on different foundations. The two first had been twice adopted by the House of Commons (though they had not been so fortunate in the House of Lords), and possessed therefore a stronger claim to present favour. With respect to the third, that for taking away the capital punishment from the offence of stealing on navigable rivers, he could not help observing that the legislature had evinced great caprice on the subject. This act was passed in 1751. In a few years afterwards the duke of Bridgwater commenced that magnificent system of internal navigation, which had eventually added more to the greatness and opulence of the British empire than, perhaps, any other enterprise of human ingenuity and perseverance. Canals, from their very nature, were more liable to the attempts of depredators than navigable rivers, and yet to robberies on canals the legislature never thought fit to extend the penalty of death, which they persevered in attaching to the same offences when committed on navigable rivers. He would proceed to state shortly the nature of the three 233 other bills for which, in compliance with the directions of the late committee, it would be his duty to move. The first bill was for the purpose of repealing certain acts of parliament, creating capital offences which the committee thought ought to be repealed, either on the ground that the offences so created were morally no offences, or that they should be considered merely as misdemeanors. Among; those acts were the 1st and 2nd of Philip and Mary, making it capitally criminal for an Egyptian to remain one year in the country; the 18th of Charles 2nd, chap, 3, making the residence of notorious thieves in Northumberland and Cumberland a capital offence; the 9th George; 1st, chap. 29, making it a capital felony to be found disguised in the Mint; the t 12th of George 2nd, chap. 29, making it a capital felony to injure Westminster Bridge. With reference to this last act, he did not mean to say that substantially to injure a public bridge ought not to be classed with very heinous offences; but then it was an offence so unlikely to occur, that the necessity for such an act as that of the 12th of George 2nd, appeared to be altogether removed. The fifth bill for which he should move was, to repeal those parts of certain acts which made the offences specified in them capital felonies, in order to leave those offences I simple felonies. Many of those offences were of a very serious nature. By the 31st of Elizabeth, chap. 9, it was made a capital felony to take away any maid, wife, or widow of property, for the sake of her fortune. If the abduction of women were to be made a capital felony, it should be so made with reference to women generally, rich or poor—heiress or pauper; but the offence was so wholly foreign to our manners, so impracticable—except indeed in some parts of the British dominions, where an exuberance of gallantry sometimes prompted to such achievements—so contrary to our grave and sober character, that it might well be left to the punishment which awaited simple felony. Under the 4th of George 1st, making the receiving of stolen goods a capital offence, only one conviction, that of the celebrated Jonathan Wild, had taken place; a sufficient proof of the expediency of modifying it. By the 9th of George 1st, the wounding of cattle and the destroying of trees were made capital felonies. Then came the statutes respecting bankrupts; and certainly, of all the 234 cases to which the general principle on which the committee proceeded was applicable, that was one which most loudly called for a change of punishment. The Marriage act also, besides the other benefits that it had conferred on society, had created five capital felonies, which it appeared to the committee expedient to modify. Then there were the 6th of George 2nd, making it a capital felony to break down the banks of rivers; the 27th of George 3rd, making it capital felony to send threatening letters, &c. For all these offences the committee proposed, instead of the punishment of death, to substitute transportation, imprisonment, or hard labour, at the discretion of the Court. The only remaining bill, the nature of which he had to describe, was a bill to consolidate and amend the various acts respecting forgery. It was proposed to take away the capital punishment for the offence of being found in possession of forged notes, and, with the exception of forgeries on the Bank of England, for the offence of forgery, on the first conviction; making it a capital offence on the second conviction, but leaving to the prosecutor the option of prosecuting as for a second offence or not; and it was proposed to make all the other offences connected with forgery transportable. To this bill, and to the bill for abolishing capital punishment for the offence of privately stealing in dwelling houses, he certainly expected some opposition. And yet, after the most attentive consideration that he had been able to give to the subject, he was thoroughly convinced, that of all the cases in our criminal law, to which the general principle of a mitigation of punishment was applicable, these were the most striking. If an instance could be selected in which the severity of the punishment prescribed by the law was, especially calculated to deter prosecutors from proceeding against offenders, it would be where those offenders lived in their families, and were in constant intercourse with them. The communication of masters with their servants, of bankers and merchants with their confidential clerks, would, where the common feelings of human nature existed, indispose superiors from prosecuting persons with whom they were in habits of daily conversation and intimacy. Accordingly, the House would find, in the appendix of the report of the committee, a number of cases of this description, and particularly of 235 the offence of forgery, in which the prosecutors had been deterred from prosecuting, and the criminals had escaped from all punishment, in consequence of the severity of the law. It was not, therefore, to the humanity of the legislature that the committee appealed on this subject, but to their policy and good sense—not to their feelings, but to their sound and deliberate judgment. The hon. and learned gentleman concluded by moving, "That a Select Committee be appointed to consider of so much of the Criminal Laws as relates to capital punishment in Felonies; and to Report their observations and opinion of the same from time to time to the House."
§ Mr. Canning,after complimenting his hon. and learned friend on the manner in which he had again brought forward this important subject, proceeded to say, that although he certainly should not object to the present motion, it must not be considered that any man, by acceding to it, was pledged to entertain any further proceeding. He should be happy to see the purposes for which his hon. and learned friend wished the appointment of the committee fully developed; and he could assure him, that no objection would be made on his part to any ulterior proposition, for objection's sake; or unless there should appear to be some solid and substantial ground for doubting its expediency.
The motion was then agreed to, a committee appointed, and the report of the committee of 1819 referred to their consideration. Sir J. Mackintosh then obtained leave to bring in the three bills, which he had described in his speech, for the repeal of so much of the acts of the 12th of Anne, the 10th and 11th of William 3rd and the 24th of George 2nd, as took away the benefit of clergy from persons convicted of stealing privately to the value of forty shillings in a dwelling house; stealing privately to the value of five shillings in a shop or warehouse; and stealing privately to the value of forty shillings on a navigable river, or in a port of entry and discharge. He next moved for leave to bring in a bill to repeal certain acts of parliament creating capital felonies specified therein.
Mr. Bennet,after bestowing a high eulogium on the unremitting exertions of his hon. and learned friend to amend the criminal code, and expressing a fervent hope that his humane perseverance would 236 be crowned with success, begged to call his hon. and learned friend's attention as well as that of the House to a very painful circumstance of recent occurrence. His late learned and excellent friend, sir S. Romilly, had succeeded in inducing the legislature to consent to a bill, by which the shocking punishment of embowelling and quartering persons convicted of treason, while yet alive, was abolished. The power of mutilating the bodies of such persons after death, still, however, remained in the hands of the executive authority. Was it his hon. and learned friend's intention to submit to the House any proposition on this subject? He was urged to put this question, from the feeling which had been lately excited by a dreadful exhibition of the nature he alluded to. It was the custom of many persons to attend inflictions of capital punishment, some influenced by curiosity, others by more laudable motives; and he would take upon himself to say, that there never was a feeling of greater horror excited than by the proceedings subsequent to the recent execution. He felt the strongest objection to every thing that weakened the moral taste or sensibility of the people; and, he believed, there never was a public occurrence, the circumstance attendant on which left so painful an impression on the minds of all who beheld it, as that which he had described. He could not illustrate the truth of this assertion more strongly, than by observing, that such were the feelings of the public, that it was necessary for the person who performed the horrid operation to be masked—a circumstance, which, he believed, was unprecedented since the decollation of the unfortunate Charles 1st. And to what did this shocking exhibition tend? Only to wound the survivors—the wives, the children, the families of the sufferers. He felt the injurious consequences of such proceedings so strongly, that he should not discharge his duty if he did not entreat his hon. and learned friend to give the House one more opportunity of wiping away such a stain on our legislation, by taking from the Crown the power of mutilating the bodies of the dead.
§ Sir J. Mackintoshwould merely address a few words to that part of his hon. friend's speech which was directed towards himself personally. When his lamented friend sir S. Romilly brought in his bill for the abolition of the horrible 237 circumstances attendant on punishment for treason, he (sir J. M.) was certainly anxious for their complete abolition. That however, his excellent friend, notwithstanding all his exertions, had been unable to effect. His opinion remained the same now as it was on that occasion; and he trusted that at some future period an exhibition would be abolished, the only tendency of which was, to show the rancour of the survivors. If, however, he should ever bring forward the subject, he should wish to do so when it might be wholly unmixed with allusions to any temporary occurrence, and when it might therefore be discussed with that calmness and deliberation which all serious and important questions demanded. No one could be mere sensible than himself of his hon. friend's unwearied benevolence, and of the noble manner in which he devoted his whole life to the cause of humanity. For his hon. friend's opinions he always entertained the greatest respect, knowing as he did, that his intentions were invariably pure and excellent. But his hon. friend would excuse him from touching: at present on the subject which he had done him the honour to recommend to his notice, lest a political feeling should be introduced into the consideration of a subject which it was most desirable, should be preserved wholly free from any taint of that nature. Sir James then withdrew his last motion, on the ground that he had discovered that the terms were not sufficiently comprehensive, and obtained leave to bring in a bill to consolidate and amend the laws in being relative to forgery. The three bills for which sir James had obtained leave, were brought in and read a first time.